EXHIBIT 4.1
THIS SECOND SUPPLEMENTAL INDENTURE dated as of February 14,
2002, between 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, and THE BANK OF NEW YORK, a banking corporation organized and
existing under the laws of New York (the "Trustee").
WHEREAS, the Corporation and the Trustee are parties to an
Indenture dated as of September 24, 1998, as supplemented by the First
Supplemental Indenture dated as of June 1, 2001 (collectively, the "Indenture"),
pursuant to which the Corporation authorized the issuance of an unlimited amount
of unsecured and unsubordinated debt securities (the "Debt Securities");
WHEREAS, the parties hereto wish to enter into this Second
Supplemental Indenture to add certain covenants and agreements of the
Corporation for the protection and benefit of the holders of the Debt Securities
of all series, as herein provided;
WHEREAS, the Corporation has determined that this Second
Supplemental Indenture complies with Section 14.01(a) of the Indenture and does
not require the consent of any holders of Debt Securities; and
WHEREAS, all acts and things necessary to make this Second
Supplemental Indenture a valid agreement of the Corporation according to its
terms have been done and performed, and the execution and delivery of this
Second Supplemental Indenture have in all respects been duly authorized by the
Corporation;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the sufficiency and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE ONE
PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 TO BE READ WITH INDENTURE.
This Second Supplemental Indenture is supplemental to the
Indenture, and the Indenture and this Second Supplemental Indenture shall
hereafter be read together and shall have effect with respect to the Debt
Securities of all series as if all the provisions thereof and hereof were
contained in one instrument.
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SECTION 1.2 INTERPRETATION.
In this Second Supplemental Indenture, unless there is
something in the subject or context inconsistent therewith: (a) "Indenture",
"herein", "hereof" and similar expressions mean and refer to the Indenture and
this Second Supplemental Indenture;
(b) the expression "Article" and "Section" followed by a
number mean and refer to the specified Article or
Section of this Second Supplemental Indenture, unless
otherwise expressly stated; and
(c) other expressions defined in the Indenture shall have
the same meanings when used in this Second
Supplemental Indenture.
ARTICLE TWO
AMENDMENTS
SECTION 2.1 ADDITIONAL DEFINITIONS.
Section 1.02 of the Indenture is hereby amended by adding the
following definitions in proper alphabetical order:
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person.
"Consolidated Net Worth" means, with respect to any specified Person as
of any date, the total shareholder's equity of such Person and its subsidiaries
determined on a consolidated basis as of such date in accordance with United
States generally accepted accounting principles.
"Consolidated Tangible Net Worth" means, with respect to any specified
Person as of any date, (i) the Consolidated Net Worth of such Person as of such
date less (ii) the Intangible Assets of such Person as of such date.
"Corporation" means CIT Group Inc., a Nevada corporation, and its
successors.
"Independence Condition" means that at least two-thirds of the
directors of the Corporation are Independent Directors.
"Independent Director" means any director of the Corporation who (i) is
not a director, officer or employee of any Tyco Affiliate or an officer or
employee of the Corporation or any subsidiary of the Corporation, (ii) is not a
director, officer or employee of any other Person having a significant business
relationship with any Tyco Affiliate, and (iii) does not, directly or
indirectly, have any significant business relationship with any Tyco Affiliate.
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"Intangible Assets" means, with respect to any specified Person as of
any date, the amount (if any) which would be stated under the heading "Goodwill
and Other Intangible Assets, Net" or under any other heading relating to
intangible assets separately listed, in each case on the face of a balance sheet
of such Person prepared on a consolidated basis as of such date in accordance
with United States generally accepted accounting principles.
"International" mean Tyco International Ltd., a Bermuda company, and
its successors.
"Permitted Reorganization Transaction" means a merger of the
Corporation with and into Tyco Capital Holding Inc., the immediate parent
corporation of the Corporation, or a merger of Tyco Capital Holding Inc. with
and into the Corporation, PROVIDED, that such merger complies with Section 15.01
and the surviving corporation of such merger has a Consolidated Tangible Net
Worth immediately after the merger that is not less than the Consolidated
Tangible Net Worth of the Corporation immediately prior to the merger.
"Permitted Transaction" means any purchase, sale or other transaction
by the Corporation or any subsidiary thereof from, to or with any Tyco Affiliate
that is on terms that are no less favorable, in any material respect and taken
as a whole, to the Corporation or such subsidiary, as the case may be, than
those that reasonably could be expected to be obtained by the Corporation or
such subsidiary in a comparable transaction with a Person that is not a Tyco
Affiliate.
"Tyco Affiliate" means International and any subsidiary of
International other than (i) the Corporation and (ii) any subsidiary of the
Corporation.
SECTION 2.2 ADDITIONAL COVENANTS.
Article Six of the Indenture is hereby amended by adding thereto
Section 6.07, Section 6.08 and Section 6.09, to read in their entirety as
follows:
"Section 6.07. The Corporation will not, and will not permit any of its
subsidiaries to, directly or indirectly (other than in connection with a
Permitted Reorganization Transaction):
(a) declare or pay any dividend (whether made in cash,
property or securities) or make any other payment or distribution (whether made
in cash, property or securities) on account of the capital stock of the
Corporation to or for the benefit of any Tyco Affiliate, except for dividends or
distributions that are payable in capital stock of the Corporation;
(b) purchase, redeem or otherwise acquire or retire for value
any capital stock of the Corporation, except in exchange for capital stock of
the Corporation;
(c) purchase or sell any material properties or assets from or
to, or consummate any other material transaction (including any service or
management arrangement) with, any Tyco Affiliate, except in or for Permitted
Transactions; or
(d) make any investment in any Tyco Affiliate in the form of
(x) advances, loans or other extensions of credit (including by means of a
guaranty) to or on behalf of any Tyco Affiliate, (y) capital contributions (by
means of a transfer of property or otherwise) to or in any Tyco Affiliate, or
(z) acquisitions (by purchase or otherwise) of any bonds, notes, debentures or
other debt
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instruments of, or any stock, partnership, membership or other equity or
beneficial interests in, any Tyco Affiliate.
"Section 6.08. The Corporation will at all times:
(a) maintain its books, records, financial statements and bank
accounts separate from those of any and all Tyco Affiliates;
(b) maintain its assets in such a manner that it will not be
costly or difficult to segregate, ascertain or identify its assets from those of
any and all Tyco Affiliates;
(c) not commingle its funds and other assets with those of any
Tyco Affiliate;
(d) at all times hold itself out to the public as a legal
entity separate and distinct from any and all Tyco Affiliates; and
(e) otherwise take such reasonable and customary action as
shall be appropriate to maintain and evidence its legal separateness from any or
all Tyco Affiliates.
"Section 6.09. Section 6.07 and Section 6.08 shall be of no force and
effect for the remaining term of any Debt Securities that are outstanding upon
the earlier to occur of (i) any event immediately after which both (x) the Tyco
Affiliates own, directly or indirectly, in the aggregate, less than 50% of the
voting stock of the Corporation measured by voting power rather than number of
shares and (y) the Independence Condition shall have been satisfied, or (ii) the
consolidation or merger of the Corporation with or into another Person or
Persons (other than International and/or one or more of its Affiliates) or the
sale, assignment, lease, transfer, conveyance or other disposition of all or
substantially all of the properties, capital stock or assets of the Corporation
and its subsidiaries taken as a whole, in one or more transactions, to another
Person or Persons (other than International and/or one or more of its
Affiliates)."
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF THE CORPORATION.
The Corporation hereby represents and warrants as follows:
(a) It (i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation,
and (ii) has the company or corporate power and authority to execute, deliver
and perform this Second Supplemental Indenture.
(b) The execution, delivery and performance by it of this
Second Supplemental Indenture (i) have been duly authorized by all necessary
company action on its part, and (ii) do not and will not contravene its articles
of incorporation or bylaws or the Indenture, any material law or any material
contractual restriction binding on or affecting it 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 or with respect
to any of its material properties.
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(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 it of this Second
Supplemental Indenture.
(d) This Second Supplemental Indenture is its legal, valid and
binding obligation, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and to 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 best of its knowledge, threatened by or against it with respect to this
Second Supplemental Indenture.
ARTICLE FOUR
FURTHER ASSURANCES REQUIRED
SECTION 4.1 DOCUMENTS DELIVERED TO TRUSTEE.
The Corporation has delivered to the Trustee, pursuant to the
Indenture, a Board Resolution authorizing this Second Supplemental Indenture, an
Officers' Certificate and an Opinion of Counsel.
SECTION 4.2 FURTHER ASSURANCES REQUIRED.
At any time and from time to time, upon the Trustee's request,
the Corporation will promptly execute and deliver such documents and instruments
and take such further actions as the Trustee may reasonably request to effect
the purposes of this Second Supplemental Indenture, at the cost and expense of
the Corporation.
ARTICLE FIVE
MISCELLANEOUS
SECTION 5.1 MISCELLANEOUS.
(a) This Second Supplemental Indenture 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 Second Supplemental Indenture shall be deemed to be a
contract made under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
(c) The recitals contained herein shall be taken as the
statements of the Corporation, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Second Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the day and year first above
written.
CIT GROUP INC., a Nevada corporation
By:
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THE BANK OF NEW YORK,
TRUSTEE
By:
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