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REGISTRATION RIGHTS AGREEMENT
Dated as of February 25, 1997
Among
CIT CAPITAL TRUST I,
THE CIT GROUP HOLDINGS, INC.
and
XXXXXX BROTHERS INC.
and
CHASE SECURITIES INC.
SALOMON BROTHERS INC
UBS SECURITIES LLC
as Initial Purchasers
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TABLE OF CONTENTS
Page
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1. Definitions............................................................. 1
2. Securities Subject to This Agreement.................................... 3
3. Registered Exchange Offer............................................... 3
4. Shelf Registration...................................................... 5
5. Additional Interest and Additional Distributions
Under Certain Circumstances.......................................... 6
6. Registration Procedures................................................. 7
7. Registration Expenses................................................... 11
8. Indemnification and Contribution........................................ 12
9. Rule 144A............................................................... 15
10. Miscellaneous........................................................... 15
This Registration Rights Agreement (this "Agreement") is made and entered
into as of February 25, 1997 by and among CIT Capital Trust I, a Delaware
statutory business trust (the "Trust"), The CIT Group Holdings, Inc., a Delaware
corporation ("the Company") and Xxxxxx Brothers Inc., Chase Securities Inc.,
Salomon Brothers Inc and UBS Securities LLC (together, the "Initial
Purchasers").
This Agreement is entered into in connection with the Purchase Agreement,
dated as of February 20, 1997, as amended and restated as of February 21, 1997,
among the Company, the Trust and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Trust to the Initial Purchasers
of $250,000,000 aggregate principal amount of the Trust's 7.70% Preferred
Capital Securities, liquidation amount $1,000 per security (the "Capital
Securities"). The Company will be the owner of all of the beneficial ownership
interests represented by the common securities (the "Common Securities" and
together with the Capital Securities, the "Trust Securities") of the Trust. The
Trust Securities will be guaranteed by a guarantee (the "Guarantee") by the
Company, to the extent of funds held by the Trust. Concurrently with the
issuance of the Capital Securities, the Guarantee and the Common Securities, the
Trust will invest the proceeds of each thereof in the Company's 7.70% Junior
Subordinated Debentures (the "Junior Subordinated Debentures" and, together with
the Capital Securities and the Guarantee, the "Securities"). In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the Trust and the
Company have agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchasers and their direct and
indirect transferees and assigns. The execution and delivery of this Agreement
is a condition to the Initial Purchasers' obligations to purchase the Capital
Securities under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following capitalized terms
shall have the following meanings:
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date on which the Securities were sold.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) effectiveness
under the Securities Act of the Exchange Offer Registration Statement
relating to the New Securities to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof, and (iii) the delivery by
the Company and the Trust of the New Securities in the same aggregate
principal amount as the aggregate principal amount of Transfer Restricted
Securities that were duly tendered by Holders thereof pursuant to the
Exchange Offer.
Damages Payment Date: With respect to the Securities, each
Distribution Date until the earlier of (i) the date on which Liquidated
Damages no longer are payable or (ii) maturity of the Securities.
Declaration: The Amended and Restated Declaration of Trust, dated as
of February 25, 1997, among The Bank of New York, as Property Trustee, The
Bank of New York (Delaware), as Delaware Trustee and the other trustees
named therein, pursuant to which the Capital Securities are being issued,
as amended or supplemented from time to time in accordance with the terms
thereof.
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Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company and the Trust under
the Securities Act of the New Securities pursuant to a Registration
Statement pursuant to which the Company and the Trust offer the Holders of
all outstanding Transfer Restricted Securities the opportunity to exchange
all such outstanding Transfer Restricted Securities held by such Holders
for New Securities in an aggregate amount equal to the aggregate amount of
the Transfer Restricted Securities tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the Prospectus which forms a part
thereof.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Securities to certain "qualified institutional buyers,"
as such term is defined in Rule 144A under the Securities Act, to certain
institutional "accredited investors," as such term is defined in Rule
501(a)(1), (2), (3) and (7) of Regulation D under the Securities Act
("Accredited Institutions") and to certain non-U.S. persons.
Guarantee Agreement: The Guarantee Agreement, dated as of February 25,
1997, between the Company and The Bank of New York, as Guarantee Trustee,
pursuant to which the Guarantee is being issued, as amended or supplemented
from time to time in accordance with the terms thereof.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of February 25, 1997, between the
Company and The Bank of New York, as trustee (the "Trustee"), pursuant to
which the Junior Subordinated Debentures are to be issued, as such
Indenture is amended or supplemented from time to time in accordance with
the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
NASD: National Association of Securities Dealers, Inc.
New Junior Subordinated Debentures: The Company's Junior Subordinated
Debentures to be issued pursuant to the Indenture in the Exchange Offer.
New Securities: The Securities to be issued pursuant to the Indenture,
the Declaration and the Guarantee Agreement in the Exchange Offer.
Person: An individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
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Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company and
the Trust relating to (a) an offering of New Securities pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, which is filed
pursuant to the provisions of this Agreement, in either case, including the
Prospectus included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material
incorporated by reference therein.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb),
as amended.
Transfer Restricted Securities: Each Security, until the earliest to
occur of (a) the date on which such Security has been exchanged by a person
other than a Broker-Dealer for New Securities in the Exchange Offer, (b)
following the exchange by a Broker-Dealer in the Exchange Offer of such
Securities for one or more New Securities, the date on which such New
Securities are sold to a purchaser who receives from such Broker-Dealer on
or prior to the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (c) the date on which such
Securities has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement or (d) the
date on which such Securities is distributed to the public pursuant to Rule
144 under the Securities Act.
2. Securities Subject to This Agreement.
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to
be a holder of Transfer Restricted Securities (each, a "Holder") whenever
such Person owns Transfer Restricted Securities.
3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with), the Company and the Trust
shall (i) cause to be filed with the Commission as soon as practicable
after the Closing Date, but in no event later than 150 days after the
Closing Date, a Registration Statement under the Securities Act relating to
the New Securities and the Exchange Offer, (ii) use their respective best
efforts to cause such Registration Statement to become effective at the
earliest possible time, but in no event later than 180 days after the
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Closing Date, (iii) in connection with the foregoing, file (A) all
pre-effective amendments to such Registration Statement as may be necessary
in order to cause such Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Registration Statement
pursuant to Rule 430A under the Securities Act and (C) cause all necessary
filings in connection with the registration and qualification of the New
Securities to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv) unless the
Exchange Offer would not be permitted by applicable law or Commission
policy, the Company will commence the Exchange Offer and use its best
efforts to issue on or prior to 30 business days after the date on which
such Registration Statement was declared effective by the Commission, New
Securities in exchange for all Securities tendered prior thereto in the
Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting registration of the New Securities to be offered in exchange for
the Transfer Restricted Securities and to permit resales of New Securities
held by Broker-Dealers as contemplated by Section 3(c) below.
(b) the Company and the Trust shall cause the Exchange Offer
Registration Statement to be effective continuously and shall keep the
Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to Consummate
the Exchange Offer; provided, however, that in no event shall such period
be less than 20 business days. The Company and the Trust shall cause the
Exchange Offer to comply with all applicable federal and state securities
laws. No securities other than the New Securities shall be included in the
Exchange Offer Registration Statement. The Company and the Trust shall use
its best efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration Statement
has become effective, but in no event later than 30 business days
thereafter.
(c) the Company and the Trust shall indicate in a "Plan of
Distribution" section contained in the Prospectus contained in the Exchange
Offer Registration Statement that any Broker-Dealer who holds Securities
that are Transfer Restricted Securities and that were acquired for its own
account as a result of market-making activities or other trading activities
(other than Transfer Restricted Securities acquired directly from the
Company and the Trust), may exchange such Securities pursuant to the
Exchange Offer; however, such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Securities Act and must, therefore,
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resales of the New Securities received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement
may be satisfied by the delivery by such Broker-Dealer of the Prospectus
contained in the Exchange Offer Registration Statement. Such "Plan of
Distribution" section shall also contain all other information with respect
to such resales by Broker-Dealers that the Commission may require in order
to permit such resales pursuant thereto, but such "Plan of Distribution"
shall not name any such Broker-Dealer or disclose the amount of New
Securities held by any such Broker-Dealer except to the extent required by
the Commission as a result of a change in policy announced after the date
of this Agreement.
The Company and the Trust shall use their respective best efforts to keep
the Exchange Offer Registration Statement continuously effective, supplemented
and amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of New Securities acquired
by Broker-Dealers for their own accounts as a result of market-making activities
or other trading activities, and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of
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180 days from the date on which the Exchange Offer Registration Statement is
declared effective.
The Company and the Trust shall provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request at any time
during such 180-day period in order to facilitate such resales.
4. Shelf Registration.
(a) Shelf Registration. If (i) the Company and the Trust are not
required to file an Exchange Offer Registration Statement or to consummate
the Exchange Offer because the Exchange Offer is not permitted by
applicable law or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with), (ii) the Company has received
an opinion of counsel, rendered by a law firm having a nationally
recognized tax practice, to the effect that, as a result of the
consummation of the Exchange Offer there is more than an insubstantial risk
that (x) the Trust would be subject to United States federal income tax
with respect to income received or accrued on the Junior Subordinated
Debentures or New Junior Subordinated Debentures, (y) interest payable by
the Company on such Junior Subordinated Debentures or New Junior
Subordinated Debentures would not be deductible by the Company, in whole or
in part, for United States federal income tax purposes, or (z) the Trust
would be subject to more than a de minimis amount of other taxes, duties or
other governmental charges or (iii) if any Holder of Transfer Restricted
Securities that is a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) or an "accredited investor" (as defined in
Rule 501(A)(1), (2), (3) or (7) under the Securities Act) shall notify the
Company at least 20 business days prior to the Consummation of the Exchange
Offer (A) that such Holder is prohibited by applicable law or Commission
policy from participating in the Exchange Offer, or (B) that such Holder
may not resell the New Securities acquired by it in the Exchange Offer to
the public without delivering a prospectus and that the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate
or available for such resales by such Holder, or (C) that such Holder is a
Broker-Dealer and holds Securities acquired directly from the Trust and the
Company or one of its affiliates, then the Trust and the Company shall use
their respective best efforts to:
(x) cause to be filed a shelf registration statement pursuant to
Rule 415 under the Securities Act, which may be an amendment to the
Exchange Offer Registration Statement (in either event, the "Shelf
Registration Statement"), on or prior to the earliest to occur of (1)
the 150th day after the date on which the Trust and the Company
determines that they are not required to file the Exchange Offer
Registration Statement or (2) the 150th day after the date on which
the Trust and the Company receive notice from a Holder of Transfer
Restricted Securities as contemplated by clause (iii) above (such
earliest date being the "Shelf Filing Deadline"), which Shelf
Registration Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and
(y) cause such Shelf Registration Statement to be declared
effective by the Commission on or before the 180th day after the Shelf
Filing Deadline.
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The Trust and the Company shall use their respective best efforts to keep
such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and (c) hereof to
the extent necessary to ensure that it is available for resales of
Securities by the Holders of Transfer Restricted Securities entitled to the
benefit of this Section 4(a), and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules
and regulations of the Commission as announced from time to time, for a
period ending on the third anniversary of the Closing Date.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Trust and the Company in writing, within 20
business days after receipt of a request therefor, such information as the
Trust and the Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus
included therein. No Holder of Transfer Restricted Securities shall be
entitled to Liquidated Damages pursuant to Section 5 hereof unless and
until such Holder shall have used its best efforts to provide all such
reasonably requested information. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the
Trust and the Company all information required to be disclosed in order to
make the information previously furnished to the Trust and the Company by
such Holder not materially misleading.
5. Additional Interest and Additional Distributions Under Certain
Circumstances.
(a) If (a) any of the Registration Statements required by this Agreement is
not filed with the Commission on or prior to the date specified for such filing
in this Agreement, (b) any of such Registration Statements has not been declared
effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (c) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (d) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose (other than for any reason set forth in Section
6(c)(iii)(D) hereof) without being succeeded within two business days by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself immediately declared effective (each such event referred to
in clauses (a) through (d), a "Registration Default"), additional interest (the
"Additional Interest") shall become payable in respect of the Junior
Subordinated Debentures (including in respect of amounts accruing during any
Extension Period (as defined in the Indenture)) and corresponding additional
Distributions (the "Additional Distributions") shall become payable to each
holder of Trust Securities at the rate of 0.25% per annum applicable to the
principal amount of the Junior Subordinated Debentures or the liquidation amount
of Trust Securities, as the case may be, for the period from and including the
date on which such Registration Default occurs to, but excluding, the date on
which it ceases to exist. All accrued Additional Interest (and corresponding
Additional Distributions) shall be paid to holders by the Trust and the Company
by wire transfer of immediately available funds or by federal funds check on the
last day of each such 90-day period. Following the cure of all Registration
Defaults relating to any particular Transfer Restricted Securities, the accrual
of Additional Interest (and corresponding Additional Distributions) with respect
to such Transfer Restricted Securities will cease.
All obligations of the Trust and the Company set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
7
survive until such time as all such obligations with respect to such Transfer
Restricted Security shall have been satisfied in full.
(b) The Trust and the Company shall notify the Property Trustee within one
business day after each and every date on which an event occurs in respect of
which Additional Distributions are required to be paid (an "Event Date").
Additional Distributions shall be paid by depositing Additional Interest with
the Property Trustee, in trust, for the benefit of the Holders thereof, on or
before the applicable Interest Payment Date (whether or not any payment other
than Additional Distributions is payable on the Capital Securities), in
immediately available funds in sums sufficient to pay the Additional
Distributions then due to Holders of Transfer Restricted Securities with respect
to which the Property Trustee serves. Each obligation to pay Additional Interest
and Additional Distributions shall be deemed to accrue from the applicable date
of the occurrence of the Registration Default.
6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Trust and the Company shall comply with all of the
provisions of Section 6(c) below, shall use their best efforts to effect
such exchange to permit the sale of Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution
thereof, and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Trust and the
Company there is a question as to whether the Exchange Offer is
permitted by applicable law, the Trust and the Company hereby agrees
to seek a no-action letter or other favorable decision from the
Commission allowing the Trust and the Company to Consummate an
Exchange Offer for such Securities. The Trust and the Company hereby
agree to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy. The Trust
and the Company hereby agree, however, to (A) participate in
telephonic conferences with the Commission, (B) deliver to the
Commission staff an analysis prepared by counsel to the Trust and the
Company setting forth the legal bases, if any, upon which such counsel
has concluded that such an Exchange Offer should be permitted and (C)
diligently pursue a resolution (which need not be favorable) by the
Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Trust or
the Company, prior to the Consummation thereof, a written
representation to the Trust or the Company (which may be contained in
the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an affiliate
of the Trust or the Company, (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the New Securities to be
issued in the Exchange Offer and (C) it is acquiring the New
Securities in its ordinary course of business. In addition, all such
Holders of Transfer Restricted Securities shall otherwise cooperate in
the Company's and the Trust's preparations for the Exchange Offer.
Each Holder hereby acknowledges and agrees that any Broker-Dealer and
any such Holder using the Exchange Offer to participate in a
distribution of the securities to be acquired in the Exchange Offer
(1) could not under Commission policy as in effect on the date of this
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Agreement rely on the position of the Commission enunciated in Xxxxxx
Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital
Holdings Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (including any no-action letter obtained
pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Securities
Act in connection with a secondary resale transaction and that such a
secondary resale transaction should be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of New Securities obtained by such Holder in
exchange for Securities acquired by such Holder directly from the
Trust or the Company.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company and the Trust shall provide a supplemental
letter to the Commission (A) stating that the Company and the Trust
are registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991)
and, if applicable, any no-action letter obtained pursuant to clause
(i) above and (B) including a representation that the Company and the
Trust have not entered into any arrangement or understanding with any
Person to distribute the New Securities to be received in the Exchange
Offer and that, to the best of the Company's and the Trust's
information and belief, each Holder participating in the Exchange
Offer is acquiring the New Securities in its ordinary course of
business and has no arrangement or understanding with any Person to
participate in the distribution of the New Securities received in the
Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Trust shall comply with all the
provisions of Section 6(c) below and shall use their best efforts to effect
such registration to permit the sale of the Transfer Restricted Securities
being sold in accordance with the intended method or methods of
distribution thereof, and pursuant thereto the Company and the Trust will
as expeditiously as possible prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate form
under the Securities Act, which form shall be available for the sale of the
Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof.
(c) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale
of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit
resales of Securities by Broker-Dealers), the Company and the Trust shall:
(i) use their best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
for the period specified in Section 3 or 4 of this Agreement, as
applicable; upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective
and usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company and the Trust shall
file promptly an appropriate amendment to such Registration Statement,
in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use their best
efforts to cause such amendment to be declared effective and such
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Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as applicable,
or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold;
cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and to comply fully with the applicable
provisions of Rules 424 and 430A under the Securities Act in a timely
manner; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof
set forth in such Registration Statement or supplement to the
Prospectus;
(iii) advise the selling Holders promptly and, if requested by
such Persons, to confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to any Registration Statement or any
post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus
or for additional information relating thereto, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement under the Securities Act or of the suspension
by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening
of any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Trust and the Company
shall use their best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(iv) furnish to the Initial Purchasers before filing with the
Commission, copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such
Registration Statement), and use its reasonable efforts to reflect in
each such document furnished to the Initial Purchasers, such comments
and changes as the Initial Purchasers may propose within five business
days after the receipt thereof. A selling Holder or underwriter, if
any, shall be deemed to have reasonably objected to such filing if
such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement
or omission;
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(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the Initial Purchasers;
(vi) if requested by any selling Holders, promptly incorporate in
any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such
selling Holders may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities
being sold, the purchase price being paid therefor and any other terms
of the offering of the Transfer Restricted Securities to be sold in
such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after
the Trust and the Company are notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment;
(vii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate
principal amount of Securities covered thereby;
(viii) furnish to each selling Holder, without charge, at least
one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(ix) deliver to each selling Holder, without charge, as many
copies of the Prospectus (including each preliminary prospectus) and
any amendment or supplement thereto as such Persons reasonably may
request; the Trust and the Company hereby consent to the use of the
Prospectus and any amendment or supplement thereto by each of the
selling Holders in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(x) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their respective
counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky laws
of such jurisdictions as the selling Holders may reasonably request
and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Shelf Registration Statement;
provided, however, that neither the Company nor the Trust shall not be
required to register or qualify as a foreign corporation where it is
not now so qualified or to take any action that would subject it to
the service of process in suits or to taxation, other than as to
matters and transactions relating to the Registration Statement, in
any jurisdiction where it is not now so subject;
(xi) shall issue, upon the request of any Holder of Securities
covered by the Shelf Registration Statement, New Securities in the
same amount as the Securities surrendered to the Company and the Trust
by such Holder in exchange therefor or being sold by such Holder; such
New Securities to be registered in the name of such Holder or in the
name of the purchaser(s) of such Securities, as the case may be; in
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return, the Securities held by such Holder shall be surrendered to the
Company and the Trust for cancellation;
(xii) cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends; and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders may request
at least two business days prior to any sale of Transfer Restricted
Securities made by such underwriter(s);
(xiii) provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide certificates for the Transfer Restricted
Securities;
(xiv) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period commencing at
the end of any fiscal quarter in which Transfer Restricted Securities
are sold to underwriters in a firm or best efforts Underwritten
Offering; and
(xv) cause the Indenture and the Declaration to be qualified
under the TIA not later than the effective date of the first
Registration Statement required by this Agreement, and, in connection
therewith, cooperate with the Trustee and the Holders of Securities to
effect such changes to the Indenture and the Declaration as may be
required for such Indenture and the Declaration to be so qualified in
accordance with the terms of the TIA; and execute and use their best
efforts to cause the Indenture Trustee, Guarantee Trustee and the
Property Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified
in a timely manner.
Each Holder agrees by acquisition of a Transfer Restricted Security that,
upon receipt of any notice from the Company or the Trust of the existence of any
fact of the kind described in Section 6(c)(iii)(D) hereof, such Holder will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 6(c)(i) and
(ii) hereof, or until it is advised in writing (the "Advice") by the Company or
the Trust that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the Prospectus. If so directed by the Company or the Trust, each Holder will
deliver to the Company or the Trust (at the Company's and the Trust's expense)
all copies, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Transfer Restricted Securities that was current
at the time of receipt of such notice. In the event the Company or the Trust
shall give any such notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall
be extended by the number of days during the period from and including the date
of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and
including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Sections 6(c)(i) and (ii) hereof or shall have
received the Advice.
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7. Registration Expenses.
All expenses incident to the Company's and the Trust's performance of or
compliance with this Agreement will be borne by the Company and the Trust,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses; (ii) all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates
for the New Securities to be issued in the Exchange Offer and printing of
Prospectuses), and associated messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company and the Trust; (v)
all application and filing fees in connection with listing Securities on a
national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Trust (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
The Company and the Trust will, in any event, bear their internal expenses
(including, without limitation, all salaries and expenses of their officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company or the Trust.
8. Indemnification and Contribution.
(a) In connection with a Shelf Registration Statement or in connection with
any delivery of a Prospectus contained in an Exchange Offer Registration
Statement by any participating Broker-Dealer or Initial Purchaser, as
applicable, who seeks to sell New Securities, the Company and the Trust agree to
defend and hold harmless each Holder of Transfer Restricted Securities included
within any such Shelf Registration Statement and each participating
Broker-Dealer or Initial Purchaser selling New Securities, and each person, if
any, who controls any such person within the meaning of Section 15 of the
Securities Act (each, a "Participant") from and against any loss, expense,
liability, or claim (including the reasonable cost of investigation) which
jointly or severally, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to purchases
and sales of Securities) which such Participant or controlling person may incur
under the Act or otherwise, insofar as such loss, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in any such Registration Statement or any
prospectus forming part thereof, or in any amendment or supplement thereto, or
arises out of or is based upon any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as any such loss, expense,
liability or claim arises out of or is based upon any alleged untrue statement
of a material fact contained therein in conformity with information furnished in
writing by such Participant to the Company or the Trust expressly for use in any
of such documents or arises out of or is based upon any alleged omission to
state therein a material fact in connection with such information required to be
stated therein or necessary to make such information not misleading; and
provided further that as to any preliminary Prospectus, the indemnity agreement
contained in this Section 8(a) shall not inure to the benefit of any such
Participant or any controlling person of such Participant on account of any
loss, claim, damage, liability or action arising from the sale of the New
Securities to any person by that Participant if (i) that Participant failed to
send or give a copy of the Prospectus, as the same may be amended or
supplemented, to that person within the time required by the Securities Act and
(ii) the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact in such preliminary
Prospectus was corrected in the Prospectus, unless, in each case, such failure
resulted from non-compliance by the Company and the Trust with Section 6(c). The
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foregoing indemnity agreement is in addition to any liability which the Company
and the Trust may otherwise have to any Participant or to any controlling person
of that Participant. The Company's agreement to indemnify such Participant or
any such controlling person as aforesaid is expressly conditioned upon it being
notified of the action in connection therewith brought against such Participant
or such controlling person by letter or telegram or other facsimile transmission
addressed to the Company with reasonable promptness after the first legal
process which discloses the nature of the liability or claim shall have been
served upon such Participant or such controlling person (or after it shall have
received notice of such service upon any agent designated by it), but failure so
to notify the Company shall not relieve the Company from any liability which it
may have to such Participant or controlling person otherwise than on account of
the indemnity agreement contained in this Section 8. The Company shall assume
the defense of any suit brought to enforce any such liability or claim,
including the employment of counsel satisfactory to such Participant and the
payment of all expenses. Such Participant or controlling person against whom
such suit is brought shall have the right to employ one separate counsel in any
such suit and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Participant or controlling person
unless (i) the employment of such counsel has been specifically authorized by
the Company or (ii) the named parties to any such suit (including any impleaded
parties) include such Participant or controlling person and the Company and such
Participant or controlling person shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the Company, in which case the Company shall
not have the right to assume the defense of such action on behalf of such
Participant or controlling person, it being understood, however, that the
Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (and any required local
counsel) for such Participant and controlling persons, which firm (and local
counsel, if any) shall be designated in writing by such Participant. The Company
shall not be liable for any settlement of any such action effected without its
consent (which will not be unreasonably withheld or delayed).
The Company agrees to notify each Participant with reasonable promptness of
the commencement of any litigation or proceedings against the Company or any of
its officers or directors or the Trust or any of its Trustees in connection with
the issue and sale of the Capital Securities or with any such Registration
Statement or any prospectus forming part thereof, or in any amendment or
supplement thereto.
(b) Each Participant severally agrees to indemnify, defend and hold
harmless the Company and its directors and officers and the Trust and each
Trustee from and against any loss, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, the Company or
any such person may incur under the Act or otherwise, insofar as such loss,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in any preliminary
prospectus, any Registration Statement or any prospectus forming part thereof or
in any amendment or supplement thereto which is in reliance on and in conformity
with information furnished in writing by such Participant to the Company, the
Trust or each Trustee expressly for use with reference to such Participant, or
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in any
of such documents or necessary to make such information not misleading. Such
Participant's agreement to indemnify the Company, the Trust and any such person
as aforesaid is expressly conditioned upon such Participant being notified of
the action in connection therewith brought against the Company, the Trust or any
such person by letter, telegram, or facsimile transmission addressed to it at
its address furnished to the Company for the purpose, with reasonable promptness
after the first legal process which discloses the nature of the liability or
14
claim shall have been served upon the Company, the Trust or any such person (or
after the Company, the Trust or any such person shall have received notice of
such service on any agent designated by the Company or any such person), but
failure so to notify such Participant shall not relieve such Participant from
any liability which it may have to the Company, the Trust or any such person
otherwise than on account of the indemnity agreement contained in this Section
8.
Such Participant shall assume the defense of any suit brought to enforce
any such liability or claim, including the employment of counsel satisfactory to
the Company, the Trust or such other person and the payment of all expenses. The
Company, the Trust or such person against whom such suit is brought shall have
the right to employ separate counsel in any such suit and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of the Company, the Trust or such person unless (i) the employment of
such counsel has been specifically authorized by such Participant or (ii) the
named parties to any suit (including any impleaded parties) include the Company,
the Trust or such person and such Participant, and the Company, the Trust or
such person shall have been advised by such counsel that there may be one or
more legal defenses available to it which are different from or additional to
those available to such Participant, in which case such Participant shall not
have the right to assume the defense of such action on behalf of the Company,
the Trust or such person, it being understood, however, that the Participant
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (and any required local
counsel) for the Company, the Trust and such person, which firm (and local
counsel, if any) shall be designated in writing by the Company. A Participant
shall not be liable for any settlement of any such action effected without its
consent (which will not be unreasonably withheld or delayed).
(c) If the indemnification provided for in this Agreement is unavailable to
or insufficient to hold harmless an indemnified party under subsections (a) and
(b) above for any reason other than as specified therein in respect of any
losses, expenses, liabilities or claims referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, expenses, liabilities or claims (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Trust on the one hand and each Participant on the other hand from the offering
of the Notes to which such losses, expenses, liabilities or claims relate or
(ii) if the allocation provided in clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Trust on the one hand and of each Participant on the other
in connection with the statements or omissions which resulted in such losses,
expenses, liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Trust on
the one hand and each Participant on the other shall be deemed to be in the same
proportion as the total net proceeds to the Trust from sales of the Notes bears
to the amount of proceeds received by each Participant from the offering of
Notes. The relative fault of the Company and the Trust on the one hand and of
each Participant on the other shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Trust or by any Participant and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages and liabilities referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any claim
or action.
15
Notwithstanding the provisions of this Section 8(c), no Participant shall
be required to contribute any amount in excess of the amount by which proceeds
received by such Participant from an offering of the Notes exceeds the amount of
any damages which such Participant has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Participants' obligations to contribute as provided in this Section 8(c) are
several and not joint.
The obligations of the Company and any Participant under this Section 8
shall be in addition to any liability that each of them may otherwise have.
9. Rule 144A.
The Company and the Trust hereby agrees with each Holder, for so long as
any Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
10. Miscellaneous.
(a) Remedies. The Company and the Trust agree that monetary damages
(including the Additional Interest and Additional Distributions
contemplated hereby) would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement
and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company and the Trust will not on
or after the date of this Agreement enter into any agreement with respect
to their securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions
hereof. Except the Registration Rights Agreement, dated December 15, 1995,
by and between The CIT Group Holdings, Inc. and CBC Holding (Delaware)
Inc., the Company and the Trust have not previously entered into any
agreement granting any registration rights with respect to their securities
to any Person. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Trust's and the Company's securities under any agreement in
effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company and the Trust will
not take any action, or permit any change to occur, with respect to
Securities that would materially and adversely affect the ability of the
Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Company
and the Trust have obtained the written consent of Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer and that does
not affect directly or indirectly the rights of other Holders whose
securities are not being tendered pursuant to such Exchange Offer may be
16
given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Declaration; and
(ii) if to the Company and the Trust:
The CIT Group Holdings, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Financial Officer
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and on the next business day, if timely delivered to an air
courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and to the extent
such successor or assign acquired Transfer Restricted Securities from such
Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to the
Conflict of Law rules thereof.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and
17
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(k) Entire Agreement. This Agreement together with the other
transaction documents is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of
the agreement and understanding of the parties hereto in respect of the
subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company and
the Trust with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
(l) Required Consents. Whenever the consent or approval of Holders of
a specified percentage of Transfer Restricted Securities is required
hereunder, Transfer Restricted Securities held by the Company or its
affiliates (as such term is defined in Rule 405 under the Securities Act)
shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THE CIT GROUP HOLDINGS, INC.
By:_______________________________
Name:
Title:
CIT CAPITAL TRUST I
By:_______________________________
Name:
Title: Regular Trustee
Accepted as of the date thereof
Xxxxxx Brothers Inc.
Chase Securities Inc.
Salomon Brothers Inc
UBS Securities LLC
Acting severally on behalf of
themselves and the several
Purchasers named herein
By XXXXXX BROTHERS INC.
By:_______________________________
Name:
Title:
