Exhibit 10.12
EXECUTION COPY
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT dated as of July 2, 2002, made by CIT GROUP INC.
(formerly known as CIT Group Inc. (Del)), a Delaware corporation ("CIT"), to the
Guaranty dated as of November 15, 1999 (the "Guaranty") guaranteeing Capita
Corporation's obligations under a certain $765,000,000 CREDIT AGREEMENT, dated
as of April 13, 1998, as amended by certain Amendments dated as of April 9,
1999, November 15, 1999 and May 30, 2001 (collectively, the "Credit Agreement";
unless otherwise defined herein, capitalized terms which are defined in the
Credit Agreement are used herein as defined therein), among CAPITA CORPORATION,
a Delaware a corporation ("Capita"), CIT FINANCIAL LTD., an Ontario corporation
("CIT Financial"), NEWCOURT CREDIT GROUP USA INC. ("Newcourt USA"), the banks
party thereto (the "Banks") and JPMORGAN CHASE BANK (as successor to Xxxxxx
Guaranty Trust Company of New York), as Administrative Agent (the
"Administrative Agent"), made by CIT Group Inc. (formerly known as Tyco Capital
Corporation and Tyco Acquisition Corp. XX (NV) and successor to The CIT Group,
Inc.), a Nevada corporation ("CIT Nevada"), as successor to (i) The CIT Group,
Inc., a Delaware corporation ("CIT Delaware"), and (ii) Tyco Capital Holding
Inc. (formerly known as CIT Holdings (NV) Inc.), a Nevada corporation ("Tyco
Holding"), pursuant to an Assumption Agreement dated as of June 1, 2001.
WITNESSETH
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to Capita;
WHEREAS, pursuant to the terms and provisions of the Guaranty, CIT Nevada,
as successor to CIT Delaware and Tyco Holding, agreed to guaranty performance of
Capita's obligations under the Credit Agreement;
WHEREAS, effective as of the date hereof, CIT Nevada has merged into Tyco
Holding, and Tyco Holding has subsequently merged into CIT, pursuant to Articles
of Merger filed with the Nevada Secretary of State on the date hereof and a
Certificate of Merger filed with the Delaware Secretary of State on the date
hereof (together, the "Merger");
WHEREAS, pursuant to the terms of the Merger and applicable law, CIT
succeeded to all of the rights and obligations of CIT Nevada;
WHEREAS, pursuant to this Assumption Agreement the parties wish to provide
that CIT shall become the "Guarantor" under the Guaranty by reason of the
Merger.
NOW, THEREFORE, in consideration of the premises and the agreements
herein, CIT hereby agrees as follows:
ARTICLE I
ASSUMPTION AND SUBSTITUTION
Section 1.1. Assumption and Substitution. Pursuant to the Merger and this
Assumption Agreement, CIT did and does expressly assume the obligations of CIT
Nevada, as the Guarantor, under the Guaranty and agree to be bound by all other
provisions applicable to CIT Nevada, as the Guarantor, under the Guaranty, and
has succeeded to and has been substituted for CIT Nevada, as the Guarantor, with
the same effect as if CIT had been named as the Guarantor in the Guaranty.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of CIT. CIT hereby represents
and warrants as follows:
(a) CIT (i) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and (ii) has the power and
authority to execute, deliver and perform this Assumption Agreement.
(b) The execution, delivery and performance by CIT of this Assumption
Agreement and the assumption of the obligations of CIT Nevada under the Guaranty
(i) have been duly authorized by all necessary company action, (ii) do not and
will not contravene CIT's certificate of incorporation or bylaws, any material
law or any material contractual restriction binding on CIT or any of its
material properties and (iii) do not and will not result in or require the
creation of any lien, security interest or other charge or encumbrance upon any
of CIT's material properties.
(c) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or other regulatory body is required for
the due execution, delivery and performance by CIT of this Assumption Agreement
or for its assumption of the obligations of CIT Nevada under the Guaranty.
(d) This Assumption Agreement is the legal, valid and binding obligation
of CIT, enforceable against CIT in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
(e) No litigation, investigation or proceeding of or before any arbitrator
or governmental authority or other regulatory body is pending or, to the
knowledge of CIT, threatened by or against CIT with respect to this Assumption
Agreement or any of the transactions contemplated hereby.
(f) CIT is not, effective immediately following the Merger, in default in
the performance of any covenant or condition in the Guaranty.
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ARTICLE III
FURTHER ASSURANCES REQUIRED
Section 3.1. Documents. The Administrative Agent shall have received from
CIT (a) the executed legal opinion of Xxxxxx, Xxxxxx & Xxxxxxxxx, counsel to
CIT, substantially in the form of Exhibit A-1 and (b) the executed legal opinion
of the associate general counsel of CIT, substantially in the form of Exhibit
A-2.
Section 3.2. Further Assurances Required. At any time and from time to
time, upon the Administrative Agent's request, CIT will promptly execute and
deliver such documents and instruments and take such further actions as the
Administrative Agent may reasonably request to effect the purposes of this
Assumption Agreement at its sole cost and expense.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Miscellaneous. (a) This Assumption Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same agreement.
(b) This Assumption Agreement is effective as of the consummation of the
Merger.
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IN WITNESS WHEREOF, CIT has caused this Assumption Agreement to be
executed by an officer thereunto duly authorized, as of the date first above
written.
CIT GROUP INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
Treasurer
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