[Exhibit 1.2]
CIT Group Inc.
Global Medium-Term Notes
Due 9 Months or More From Date of Issue
Global Selling Agency Agreement
_______, 2004
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABN AMRO Incorporated
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
BNP Paribas Securities Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
1
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xx.
Xxx Xxxx, Xxx Xxxx 00000
HSBC Securities (USA) Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center, 15th Floor
New York, New York 10080
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Wachovia Capital Markets, LLC
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Ladies and Gentlemen:
CIT Group Inc., a Delaware corporation, (the "Company"), confirms its
agreement with each of you (individually, an "Agent", and collectively, the
"Agents") with respect to the issue and sale by the Company of its Global
Medium-Term Notes Due 9 Months or More from Date of Issue (the "Senior Notes")
and its Global Medium-Term Subordinated Notes Due 9 Months or More from Date of
Issue (the "Subordinated Notes") (the Senior Notes and the Subordinated Notes
are referred to collectively herein as the "Notes"). The Senior Notes will be
issued under an indenture described on Schedule I attached hereto (as may be
amended or supplemented from time to time, the "Senior Indenture"), between the
Company and the trustee described on such Schedule (the "Senior Trustee") and
pursuant to resolutions of the Board of Directors of the Company, or a committee
thereof, or supplemental indentures, if any, as provided in Section 3.1 of the
Senior Indenture. The Company may change or add trustees to Schedule I with the
consent of the Agents, which consent shall not be unreasonably withheld. The
Subordinated Notes will be issued under an indenture described on Schedule I
attached hereto (as may be amended or supplemented from time to time, the
"Subordinated Indenture"), between the Company and the trustee described on such
Schedule (the "Subordinated Trustee") and pursuant to resolutions of the Board
of Directors of the Company, or a committee thereof, as
2
provided in Section 3.1 of the Subordinated Indenture. The Senior Indenture and
the Subordinated Indenture are collectively referred to herein as the
"Indentures." The Senior Trustee and the Subordinated Trustee are each referred
to herein as a "Trustee." The Notes will be in fully registered form and will
be, in the case of Notes denominated in currencies or currency units other than
U.S. dollars (the "Foreign Currency Notes"), represented by one or more global
Notes or, in the case of all other Notes (the "Dollar Denominated Notes"),
represented by one or more global Notes registered in the name of and delivered
to The Depository Trust Company ("DTC") or its nominee and recorded in the
book-entry system maintained by DTC. The Notes will be in a minimum denomination
of U.S. $1,000 and integral multiples of U.S. $1,000 in excess thereof, or, in
the case of Foreign Currency Notes, in the denominations indicated in a pricing
supplement (the "Pricing Supplement") to the Prospectus referred to below. The
Notes will have the maturities, priority, annual interest rates (whether fixed
or floating), if any, or original issue discount, if any, redemption or
repayment provisions, if any, currency or currency unit of denomination, and
other terms set forth in the Pricing Supplement. The Notes will be issued, and
the terms thereof established, in accordance with the applicable Indenture and
the Global Medium-Term Note Administrative Procedures attached hereto as Exhibit
I (the "Procedures"). The Procedures may only be amended by written agreement of
the Company and each Agent after notice to and, in the case of amendments which
affect the rights, duties or obligations of a Trustee, a registrar, a paying
agent, an authenticating agent or an exchange rate agent, with the approval of,
such Trustee, registrar, paying agent, authenticating agent, or exchange rate
agent, as the case may be.
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Agent that:
(a) Registration statement No. 333-119172 has been filed with the
Securities and Exchange Commission (the "Commission"), and such
registration statement has been declared effective by the Commission. On or
prior to the date hereof, a prospectus supplement relating to the Notes has
been filed as a part of the Registration Statement (defined below), if
applicable, or pursuant to Rule 424(b) under the Act. As used in this
Agreement, "Registration Statement" means registration statement No.
333-119172 (and any further registration statements which may be filed by
the Company for the purpose of registering additional Notes and in
connection with which this Agreement is included or incorporated by
reference as an exhibit), each as amended at the date of this Agreement,
and in the form declared effective by the Commission, and "Prospectus"
means the prospectus relating to the Notes included in the Registration
Statement and the prospectus supplement relating to the Notes heretofore
filed with the Commission, in each case including all material incorporated
by reference therein. The Company proposes to file with the Commission from
time to time, pursuant to Rule 424(b) under the Act, Pricing Supplements to
the Prospectus which will describe certain pricing terms of the Notes and,
as further set forth herein, prior to any such filing will advise you of
all information to be set forth therein.
(b) On the date the Registration Statement became effective, the
Registration Statement and the Prospectus conformed in all respects to the
applicable requirements of the Securities Act of 1933, as amended (the
"Act"), the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the applicable rules and regulations of the
3
Commission promulgated pursuant to either of such Acts or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as the case may be
(the "Rules and Regulations"). The Registration Statement and Prospectus
did not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of this Agreement, the
Registration Statement and the Prospectus conform, and when any supplement
to the Prospectus is filed with the Commission and at the date of delivery
by the Company of any Notes sold hereunder, the Registration Statement and
the Prospectus and any supplement thereto will conform, in all respects to
the applicable requirements of the Act, the Trust Indenture Act and the
applicable Rules and Regulations thereunder, and neither the Registration
Statement nor the Prospectus includes, or will include as of any such time,
any untrue statement of a material fact or omits or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, this representation
and warranty shall not apply to any statement or omission made in reliance
upon and in conformity with, written information furnished to the Company
by an Agent specifically for use in the Registration Statement or
Prospectus or to that part of the Registration Statement which shall
constitute the Statement of Eligibility under the Trust Indenture Act (Form
T-1) of the Trustee under the Indenture.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the Rules and Regulations
thereunder, as applicable, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the applicable
requirements of the Exchange Act and the Rules and Regulations thereunder,
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
2. Solicitations by the Agent of Offers to Purchase; Purchases as
Principal; Additional Agents. (a) Subject to the terms and conditions set forth
herein, the Company hereby authorizes each Agent to act as its agent to solicit
offers for the purchase of all or any part of the Notes, upon the terms set
forth in the Prospectus, as it may be amended or supplemented from time to time
pursuant to this Agreement, during the period beginning on the date hereof and
ending on the date the Company shall specify to the Agent in writing. On the
basis of the representations and warranties herein contained, but subject to the
terms and conditions herein set forth, each of the Agents agrees, as agent of
the Company, to use its reasonable best efforts to solicit offers to purchase
the Notes upon the terms and conditions set forth in the Prospectus as then
amended or supplemented. The Company reserves the right, in its sole discretion,
(i) to sell the Notes on its own behalf directly to investors in those
jurisdictions where it is authorized to do so or indirectly to investors through
other agents, (ii) to sell the Notes to other agents acting as principal and
(iii) to suspend solicitation of purchases of the Notes commencing at any time
for any period of time or permanently. Upon receipt of written instructions from
the Company, an
4
Agent will forthwith suspend solicitation of offers to purchase the Notes until
such time as the Company has advised it that such solicitation may be resumed.
Unless otherwise agreed between the Company and such Agent, the
Company agrees to pay each Agent, as consideration for soliciting the sale of
any Notes, a commission in U.S. dollars, at the time of settlement of each sale
of Notes by the Company as a result of a solicitation made by such Agent in an
amount equal to the following percentages of the principal amount of each Note
placed by such Agent:
Term Commission Rate %
----------------------------------- ------------------------------------
9 months to less than 1 yr. .05
1 yr. to less than 18 months .05
18 months to less than 2 yrs. .05
2 yrs. to less than 3 yrs. .10
3 yrs. to less than 4 yrs. .15
4 yrs. to less than 5 yrs. .25
5 yrs. to less than 6 yrs. .35
6 yrs. to less than 7 yrs. .375
7 yrs. to less than 10 yrs. .40
10 yrs. to less than 15 yrs. .45
15 yrs. to less than 20 yrs. .50
20 yrs. up to and including 30 yrs. .750
More than 30 yrs. To be negotiated at time of issuance
The Agents are authorized to solicit offers to purchase the Notes only
in minimum aggregate principal amounts of at least U.S. $1,000 and integral
multiples of U.S. $1,000 in excess thereof, or, in the case of Foreign Currency
Notes, in the denominations indicated in the applicable Pricing Supplement to
the Prospectus.
Each Agent shall communicate to the Company, orally or in writing,
each offer received by it to purchase Notes other than those reasonably rejected
by it as provided below. The Company shall have the sole right to accept offers
to purchase the Notes and may reject any such offer in whole or in part. Each
Agent shall have the right to reject, in its discretion reasonably exercised,
any offer received by it to purchase the Notes in whole or in part, and any such
rejection shall not be deemed a breach of its agreements contained herein. The
Agents and the Company agree to perform the respective duties and obligations
specifically provided to be performed by them in the Procedures.
(b) Subject to the terms and conditions stated herein, the Company
agrees that, whenever the Company determines to sell Notes directly to any Agent
as principal for its own account or for resale to others, it will enter into a
separate supplemental agreement relating to such sale in accordance with the
provisions of this Section 2(b) and for the purposes of this Agreement, (i) the
term "Agent" shall refer to each of you acting solely in the capacity as agent
for the Company hereunder and not as principal; (ii) the term "Purchaser" shall
refer to each of you acting solely as principal hereunder and not as agent; and
(iii) the term "you" or "your"
5
shall refer to each of you acting in both such capacities or in either such
capacity. Any Purchaser may utilize a selling or dealer group in connection with
the resale of the Notes and may reallow any portion of its commission.
Each sale of Notes to a Purchaser shall be made in accordance with the
terms of this Agreement and the Procedures and a supplemental agreement which
will provide for the sale of such Notes to, and the purchase and reoffering
thereof by, a Purchaser. Each supplemental agreement (which may be (i)
substantially in the form of Exhibit B hereto or (ii) an oral agreement
confirmed in writing, substantially in the form of Exhibit C hereto, which may
be by facsimile transmission, as described below between the Purchaser and the
Company) is herein referred to as a "Terms Agreement". Unless the context
otherwise requires, each reference contained herein to "this Agreement" shall be
deemed to include any applicable Terms Agreement between the Company and the
Purchaser. Each such Terms Agreement whether oral (and confirmed in writing,
substantially in the form of Exhibit C hereto, which may be by facsimile
transmission) or in writing, shall be with respect to such information (as
applicable) as is specified in Exhibit B hereto. Unless and until a Terms
Agreement has been validly entered into as described above with regard to an
issuance of Notes, an Agent purchasing such Notes shall be deemed to be acting
as Agent and not as Purchaser with regard to such issuance. The Purchaser's
commitment to purchase Notes as principal pursuant to any Terms Agreement shall
be deemed to have been made on the basis of the representations, warranties,
covenants and agreements of the Company herein contained and shall be subject to
the terms and conditions set forth in this Agreement and any further terms and
conditions set forth in such Terms Agreement. Each Terms Agreement shall specify
the principal amount of Notes to be purchased by the Purchaser pursuant thereto,
the price to be paid to the Company for such Notes, the currency or currency
unit in which such Notes shall be denominated, the rate at which interest, if
any, will be paid on the Notes (and whether such rate of interest shall be fixed
or floating), the date of delivery of and payment for such Notes (the "Purchase
Date"), and such other provisions (including further terms of the Notes) as may
be mutually agreed upon. Each such Terms Agreement shall also specify the
requirements for the opinions of counsel and the certificate of the Company or
its officers pursuant to Sections 4(d) and 4(f) hereof and the requirements, if
any, for the letter from the Company's independent registered public accounting
firm pursuant to Section 4(c) hereof. In addition, each such Terms Agreement
shall also specify whether such Notes are to be listed on the Luxembourg Stock
Exchange (or any other stock exchange as may be agreed between CIT and the
relevant Agent(s)).
Delivery of the certificates for Notes sold to a Purchaser pursuant to
any Terms Agreement shall be made as agreed to between the Company and the
Purchaser as set forth in the respective Terms Agreement, not later than the
Purchase Date set forth in such Terms Agreement, against payment of immediately
available funds to the Company in the net amount due to the Company for such
Notes by the method and in the form set forth in the respective Terms Agreement.
(c) The documents required to be delivered by Section 4 hereof shall
be delivered to the office of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel
for the Agents, at 0000 X Xxxxxx, X.X., Xxxxxxxxxx, XX 00000 on the date hereof,
or such other places as the parties may agree.
6
(d) The Company, without the consent of the Agents, may appoint
additional firms or corporations to become Agents hereunder and within the
meaning of this Agreement upon the execution by the Company and each such firm
or corporation of an agreement to the effect that such firm or corporation shall
have all the rights and obligations of an Agent hereunder.
(e) Each Agent agrees that it will comply with and make the
representations and warranties in accordance with the provisions set forth in
Schedule S hereof, provided that (i) such provisions may be supplemented or
modified by the agreement of the Company and the relevant Agent in relation to a
specific issue of Notes as set forth in the relevant Pricing Supplement and (ii)
such provisions shall not apply if the relevant law or regulation in the
relevant jurisdiction no longer applies and has not been replaced or modified by
any different law or regulation.
3. Covenants of the Company. The Company covenants and agrees with
each Agent that it will deliver to counsel for the Agents one signed copy of the
Registration Statement relating to the Notes, including all exhibits, in the
form it became effective and of all amendments thereto and that:
(a) The Company will advise counsel for the Agents promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus or to prepare any additional registration statement with respect
to the registration of additional Notes, and in any case, prior to the
termination of the offering of the Notes pursuant to this Agreement, will
provide such Agent with a reasonable opportunity to comment thereon and
will advise such Agent promptly of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof or the additional registration statement and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued. The Company will promptly advise
each Agent (i) when each supplement to the Prospectus shall have been filed
with the Commission pursuant to Rule 424(b), (ii) when any amendment of the
Registration Statement or the additional registration statement shall have
become effective, (iii) of any request by the Commission for any amendment
of the Registration Statement or amendment of or supplement to the
Prospectus or for any additional information, and (iv) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose.
(b) If, at any time when a Prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any
time to amend or supplement the Registration Statement or the Prospectus to
comply with the Act, the Company promptly will prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance.
7
(c) The Company shall make generally available to its securityholders
earning statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Act and Rule 158 thereunder (or any similar rule
promulgated under the Act) no later than 45 days after the close of each of
the first three fiscal quarters of each fiscal year of the Company and 90
days after the close of each fiscal year of the Company, or such shorter
period as required under the Act and the Exchange Act and the rules and
regulations thereunder, as in effect at any relevant time, commencing on
the first day of the first fiscal quarter of the Company commencing after
(i) the effective date of the Registration Statement, (ii) the effective
date of each post-effective amendment to such Registration Statement, or
(iii) the date of each filing by the Company with the Commission of an
Annual Report on Form 10-K that is incorporated by reference in such
Registration Statement, which statements shall cover said periods.
(d) The Company will furnish each Agent with copies of the
Registration Statement, including all exhibits, the Prospectus and all
amendments and supplements to such documents, including documents
incorporated by reference therein, in each case as soon as available and in
such quantities as are reasonably requested and so long as an Agent is
required to deliver a Prospectus in connection with sales or solicitations
of offers to purchase the Notes.
(e) The Company will use its best efforts, in cooperation with the
Agents, to qualify the Notes for sale under the applicable laws of such
jurisdictions as the Agents may reasonably request and will continue such
qualifications in effect so long as required for the sale of the Notes
hereunder; provided, however, that the Company shall not be obligated to
qualify as a foreign corporation or as a dealer in securities or to execute
or file any consents to service of process under the laws of any such
state. Counsel for the Agents shall provide or cause to be provided to the
Agents, annually, a "blue sky" memorandum relating to its debt securities
of the Company registered under the Registration Statement.
(f) The Company covenants and agrees with each Agent that the Company
will pay or cause to be paid the following: (i) the fees and expenses of
the Company's counsel and accountants in connection with the registration
of the Notes under the Act and all other expenses in connection with the
registration of the Notes under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and any Pricing
Supplement and all other amendments and supplements thereto and the mailing
and delivering of copies thereof to such Agent; (ii) all reasonable and
necessary fees and expenses of counsel for the Agents in connection with
any issuance of the Notes to investors through each such Agent, which fees
and expenses are incurred subsequent to the date hereof, unless otherwise
agreed to between the Company and the Agents; (iii) all expenses in
connection with the qualification of the Notes for offering and sale under
state securities laws as provided in Section 3(e) hereof, including fees
and disbursements in connection with such qualification and in connection
with "blue sky" and "blue sky" surveys; (iv) any fees charged by securities
rating services for rating the Notes; (v) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Notes; (vi) the cost of preparing the Notes;
(vii) any
8
advertising connected with the solicitation of offers to purchase and the
sale of Notes so long as such advertising expenses have been approved by
the Company; (viii) the cost of providing any CUSIP, ISIN, common code or
other identification numbers for the Notes; and (ix) all other costs and
expenses incident to the performance of the Company's obligations hereunder
which are not otherwise specifically provided for in this paragraph. Except
as provided in Section 5 hereof, each Agent shall pay all other expenses it
incurs.
(g) Each time the Registration Statement or the Prospectus is amended
or supplemented, including by the filing with the Commission of any
document incorporated by reference into the Prospectus (other than by an
amendment or supplement (i) relating to an offering of securities other
than the Notes, (ii) providing for a reduction of the aggregate amount of
Notes being offered, (iii) consisting of additional exhibits to the
Registration Statement filed in a Current Report on Form 8-K or a
Post-Effective Amendment to the Registration Statement filed pursuant to
Rule 462(d) under the Act, (iv) providing solely for the specification of
the terms of the Notes (excluding (a) any change in the formula by which
interest rates on the Notes may be determined and (b) any information
relating to Specified Currencies (as defined in the Prospectus) other than
U.S. dollars), or (v) occurring due to incorporation by reference of a Form
10-Q or Form 10-K of the Company), the Company, upon the request of an
Agent, will deliver or cause to be delivered forthwith to such Agent a
certificate of the Company signed by the principal financial or accounting
officer of the Company, dated the date of the effectiveness of such
amendment or the date of filing of such supplement (or document
incorporated by reference), in form reasonably satisfactory to such Agent,
to the effect that the statements contained in the certificate referred to
in Section 4(f) hereof that was last furnished to the Agents (either
pursuant to Section 4(f) hereof or pursuant to this Section 3(g)) are true
and correct at the time of the effectiveness of such amendment or the
filing of such supplement (or document incorporated by reference) as though
made at and as of such time (except that (i) the last day of the fiscal
quarter for which financial statements of the Company were last filed with
the Commission shall be substituted for the corresponding date in such
certificate and (ii) such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the time of the effectiveness of such amendment or the filing of such
supplement (or document incorporated by reference)) or, in lieu of such
certificate, a certificate substantially in the form of the certificate
referred to in Section 4(f) hereof but modified to relate to the last day
of the fiscal quarter for which financial statements of the Company were
last filed with the Commission and to the Registration Statement and the
Prospectus as amended and supplemented to the time of the effectiveness of
such amendment or the filing of such supplement (or document incorporated
by reference); provided, however, that such certificate need not be
furnished with respect to an amendment or supplement (or document
incorporated by reference) deemed immaterial in the reasonable opinion of
such Agent.
(h) Each time the Registration Statement or the Prospectus is amended
or supplemented, including by the filing with the Commission of any
document incorporated by reference into the Prospectus, the Company, upon
the request of an Agent, shall furnish or cause to be furnished forthwith
to such Agent the written opinion or opinions of Xxxxxx X. Xxxxxx, General
Counsel of the Company, and/or Shearman &
9
Sterling LLP, or other counsel of the Company reasonably satisfactory to
such Agent; provided, however, that such opinions need not be furnished
with respect to an amendment or supplement (or document incorporated by
reference) (i) relating to an offering of securities other than the Notes,
(ii) providing for a reduction of the aggregate amount of Notes being
offered, (iii) consisting of additional exhibits to the Registration
Statement filed in a Current Report on Form 8-K or a Post-Effective
Amendment to the Registration Statement filed pursuant to Rule 462(d) under
the Act (iv) providing solely for the specification of the terms of the
Notes (excluding (a) any change in the formula by which interest rates on
the Notes may be determined and (b) any information relating to Specified
Currencies other than U.S. dollars), or (v) occurring due to incorporation
by reference of a Form 10-Q or Form 10-K of the Company. Any such opinion
shall be dated the date of the effectiveness of such amendment or the date
of filing of such supplement (or document incorporated by reference), in
form satisfactory to the Agents, and shall be substantially in the form of
the opinions referred to in Section 4(d) hereof but modified to relate to
the Registration Statement and the Prospectus as amended and supplemented
to the time of the effectiveness of such amendment or the filing of such
supplement (or document incorporated by reference); provided, however, that
such opinion need not be furnished with respect to an amendment or
supplement (or document incorporated by reference) deemed immaterial in the
reasonable opinion of such Agent. In lieu of such opinion, counsel last
furnishing such an opinion to the Agents may furnish to the Agents a letter
to the effect that the Agents may rely on such last opinion to the same
extent as though it were dated the date of such letter authorizing reliance
on such last opinion (except that statements in such last opinion will be
deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of the effectiveness of such amendment
or the filing of such supplement (or document incorporated by reference
therein)).
(i) Each time that the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus, the Company
shall, upon request by an Agent, unless a letter is otherwise furnished
pursuant to Section 3(o) hereof, cause its independent registered public
accounting firm, forthwith to furnish such Agent a letter, dated the date
of the effectiveness of such amendment or the date of filing of such
supplement, in form satisfactory to such Agent, substantially in the form
of the letter referred to in Section 4(c) hereof with such changes as may
be necessary to reflect the amended and supplemental financial information
included or incorporated by reference in the Registration Statement and the
Prospectus, as amended or supplemented to the date of such letter.
(j) Each acceptance by the Company of an offer to purchase Notes will
be deemed to be a representation and warranty to the Agents that neither
the Registration Statement nor the Prospectus, as then amended or
supplemented, includes any untrue statement of a material fact, or omits to
state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
10
(k) During the period from the date of any Terms Agreement with regard
to a sale of Notes in aggregate amount of not less than $50 million to a
Purchaser and continuing to and including the Purchase Date for such Notes,
the Company will not offer, sell, contract to sell or otherwise dispose of
debt securities of the Company in the United States which are substantially
similar to such Notes, without the prior written consent of the Purchaser.
(l) The Company, during the period when the Prospectus is required to
be delivered under the Act, will file promptly all documents required to be
filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act.
(m) The Company will prepare, with respect to any Notes to be sold
through or to the Agents pursuant to this Agreement, a Pricing Supplement
with respect to such Notes in a form previously approved by the Agents and
will file such Pricing Supplement pursuant to Rule 424(b) under the Act.
(n) The Company, in relation to any Notes that are to be listed on the
Luxembourg Stock Exchange (or any other stock exchange as may be agreed
between CIT and the relevant Agent(s)), will use its best efforts to
arrange the admission to listing of such Notes on such stock exchange and
to maintain such listing until the relevant Notes are no longer
outstanding; provided that if it should become impracticable or unduly
burdensome to maintain any such listing, the Company will use its best
efforts to arrange and maintain such listing for the relevant Notes on such
other stock exchange as it and the relevant Agent(s) may agree.
(o) The Company will make available to each Agent as soon as
practicable, but not later than 60 days after the close of each of the
first three fiscal quarters of each fiscal year of the Company and 135 days
after the close of each fiscal year of the Company, each of the following,
each of which shall be dated as of the date of the close of such fiscal
quarter or fiscal year: (i) a letter of the Company's independent
registered public accounting firm, substantially in the form of the letter
referred to in Section 4(c); (ii) the written opinion or opinions of Xxxxxx
X. Xxxxxx, General Counsel of the Company, and Shearman & Sterling LLP, or
other counsel of the Company reasonably satisfactory to the Agents, in form
satisfactory to the Agents, substantially in the form of the opinions
referred to in Section 4(d) (which opinions may be in the form of a
confirmation that the opinions delivered the date hereof pursuant to
Section 4(d) remain in effect without modification), and (iii) a
certificate of the principal financial or accounting officer of the Company
substantially in the form of the certificate referred to in Section 4(f).
4. Conditions of the Obligations of the Agents. The obligations of any
Agent, as agent of the Company, at any time to solicit offers to purchase the
Notes, and the obligation of any Agent to purchase Notes as a Purchaser pursuant
to any Terms Agreement, will be subject to the accuracy, as of the date hereof,
as of the date of the effectiveness of any amendment to the Registration
Statement (including the filing of any document incorporated by reference into
the Prospectus), as of the date any supplement to the Prospectus is filed with
the Commission, and as of the time of delivery of Notes to any purchaser or to
the Agents as Purchaser, of the representations and warranties on the part of
the Company herein (and, in the case of an
11
obligation of an Agent under a Terms Agreement, in or incorporated in such Terms
Agreement by reference), to the accuracy of the statements of Company officers
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent
(other than the conditions specified in clauses (w), (x), (y) and (z) of
paragraph (b)(ii) below, which are conditions precedent to, and only to, the
obligations of an Agent to purchase Notes as a Purchaser pursuant to a Terms
Agreement):
(a) No stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been instituted or, to the knowledge of the Company
or such Agent, shall be contemplated by the Commission.
(b) (i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus or the sale date
with respect to any Note or, if applicable, the date of any Terms
Agreement, there shall not have occurred any change, or any development
involving a prospective change, in or affecting the business, properties,
financial condition or results of operations of the Company or its
subsidiaries the effect of which is, in the reasonable judgment of such
Agent (which, in the case of any syndicated offering, shall be the lead
manager(s)), so material and adverse to the Company so as to make it
impracticable or inadvisable to proceed with the soliciting of offers to
purchase the Notes as contemplated by the Registration Statement and the
Prospectus; and (ii) subsequent to the sale date with respect to any Note
or, if applicable, the date of any Terms Agreement, (v) no public
announcement shall have been given of any intended or potential downgrading
or withdrawal in the credit rating accorded any of the Company's debt
securities, or no credit rating of any debt securities of the Company shall
have been lowered or withdrawn, by Xxxxx'x Investors Service, Standard &
Poor's Ratings Services or Fitch, Inc., (w) trading of securities generally
on the New York Stock Exchange or the National Association of Securities
Dealers Automated Quotations System, the Luxembourg Stock Exchange or any
other exchange on which the Notes may be listed, shall not have been
suspended or materially limited, (x) a general moratorium on commercial
banking activities shall not have been declared by either federal or state
authorities, or if a material disruption in commercial banking or
securities settlement or clearance services in the United States has
occurred, (y) trading of any securities of the Company shall not have been
suspended on any exchange or in any over-the-counter market and (z) there
shall not have occurred any outbreak or escalation of hostilities or
national emergency or other calamity or crisis the effect of which on the
financial markets of the United States is, in the judgment of such Agent
(which, in the case of any syndicated offering, shall be the lead
manager(s)), such as to make it impracticable or inadvisable to market the
Notes.
(c) Such Agent shall have received a letter, dated as of the date
hereof, and, in connection with its purchase of Notes as a Purchaser
pursuant to a Terms Agreement, dated as of the Purchase Date, of the
Company's independent registered public accounting firm, confirming that
they are an independent registered public accounting firm within the
meaning of the Act and the published Rules and Regulations and to the
effect that (i) in their opinion, the financial statements and financial
schedules examined by them and included in the Prospectus comply in form in
all material respects with the
12
applicable accounting requirements of the Act, the Exchange Act and the
related published Rules and Regulations, (ii) on the basis of their review
(which does not constitute an examination of financial statements in
accordance with procedures specified by the Public Company Accounting
Oversight Board (United States) (the "PCAOB") ) of the financial statements
referred to below, inquiries of officials of the Company responsible for
financial and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that (w) any unaudited
consolidated condensed financial statements included in the Prospectus do
not comply in form in all material respects with the applicable accounting
requirements of the Exchange Act as it applies to Forms 10-Q or 8-K and the
related published Rules and Regulations or are not in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited consolidated financial statements
included in the Prospectus, or (x) with respect to the period after the
date of the most recent financial statements incorporated in the
Registration Statement and the Prospectus, there were any changes, when
compared to the most recent internal balance sheet, in the capital stock or
increase in total debt of the Company or any decreases in the consolidated
total assets, finance receivables, reserve for credit losses or
shareholders' equity of the Company as compared with the amounts shown on
the most recent consolidated balance sheet included or incorporated in the
Registration Statement and the Prospectus, or (y) with respect to the
period after the date of the most recent financial statements included or
incorporated in the Registration Statement and the Prospectus and
subsequent to the most recent internal balance sheet through a specified
date not more than five business days prior to the date of the letter there
were any changes in the capital stock or increase in total debt of the
Company or any decrease in the consolidated total assets, finance
receivables, reserve for credit losses or shareholders' equity of the
Company as compared with the amounts shown on the most recent consolidated
balance sheet included or incorporated in the Registration Statement and
the Prospectus (if the Company is unable to quantify any such decrease, a
statement to that effect will be included in the letter), or (z) for the
period from the date of the most recent financial statements incorporated
in the Registration Statement and the Prospectus to such specified date
there were any quantifiable decreases, as compared with the corresponding
period in the preceding year, in consolidated finance income or net income
of the Company (if the Company is unable to quantify any such decrease, a
statement to that effect will be included in the letter), except in all
instances for changes or decreases which the Prospectus disclosed have
occurred or may occur or which are described in such letter and (iii) they
have compared specific dollar amounts (or percentages derived from such
dollar amounts) and other financial information included in the Prospectus
(in each case to the extent that such dollar amounts or percentages or
other financial information are derived from the general accounting records
of the Company and consolidated subsidiaries which are subject to the
internal controls of the accounting systems of the Company and consolidated
subsidiaries or are derived directly from such records by analysis or
computation, and are not directly traceable to the publicly available
audited consolidated financial statements of the Company or unaudited
condensed financial statements contained in its reports on Forms 10-Q or
8-K) with the results obtained from inquiries, a reading of such general
accounting records of the Company and consolidated subsidiaries and other
procedures specified in such letter and have
13
found such dollar amounts and percentages and other financial information
to be in agreement with such results, except as otherwise specified in such
letter. All financial statements included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus
for purposes of this subsection.
(d) Such Agent shall have received an opinion of Xxxxxxxx & Sterling
LLP (or other counsel of the Company reasonably satisfactory to such Agent)
and of Xxxxxx X. Xxxxxx, General Counsel of the Company, each dated as of
the date hereof, the form of which is attached hereto as Exhibit A and
Exhibit B, respectively, and in connection with its purchase of Notes as a
Purchaser pursuant to a Terms Agreement, dated as of the Purchase Date, of
Xxxxxx X. Xxxxxx, General Counsel of the Company, the form of which is
attached hereto as Exhibit B and of Shearman & Sterling LLP (or other
counsel of the Company reasonably satisfactory to such Agent), the form of
which is attached hereto as Exhibit C.
(e) The Agents shall have received from Xxxxxx Xxxxxx Xxxxxxxxx Xxxx
and Xxxx LLP, counsel for the Agents, such opinion or opinions, dated as of
the date hereof, and in connection with its purchase of Notes as a
Purchaser pursuant to a Terms Agreement, dated as of the Purchase Date,
with respect to the Indentures, the Registration Statement, the Prospectus
and other related matters as they may require and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(f) Such Agent shall have received a certificate, dated as of the date
hereof, and in connection with its purchase of Notes as a Purchaser
pursuant to a Terms Agreement, dated as of the Purchase Date, of the
principal financial or accounting officer of the Company in which such
officer shall state, to the best of his knowledge after reasonable
investigation, (i) that the representations and warranties of the Company
in this Agreement are true and correct as of the date hereof, (ii) that the
Company has complied with all agreements and satisfied all conditions to
the obligation of such Agent to solicit offers to purchase the Notes, (iii)
that no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission, (iv)
that, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, or any development
involving a prospective material adverse change, in or affecting the
business, properties, financial condition or results of operations of the
Company or its subsidiaries, except as set forth in or contemplated by the
Prospectus and (v) that such officer has reviewed each agreement or
instrument to which the Company is a party or by which it is bound which
contains any covenant or restriction which limits or restricts the
Company's freedom to incur indebtedness, that the issuance and sale by the
Company of the Notes would not result in a breach of, or constitute a
default under, the provisions of any of such agreements or instruments and
that, with respect to any Notes in respect of which such covenants or
restrictions apply, attached thereto are calculations demonstrating that,
based upon the Company's latest available financial statements, the
issuance and sale of such Notes would not result in a breach of, or
constitute a default under, the provisions of any of such agreements or
14
instruments, and also attached thereto is a letter of the Company's
independent registered public accounting firm, reporting on their review of
such calculations.
(g) The Agents shall have received from Shearman & Sterling LLP,
counsel for the Company, an opinion or opinions, dated as of the date
hereof, and in connection with its purchase of Notes as a Purchaser
pursuant to a Terms Agreement, dated as of the Purchase Date, to the effect
that, as of the date hereof, the description of United States Federal
income tax consequences set forth under "Material U. S. Federal Income Tax
Consequences" in the Prospectus Supplement is accurate in all material
respects.
The Company will furnish each Agent with such conformed copies of such opinions,
certificates, letters and documents as it reasonably requests.
In the event that, after the date hereof, the Company files any
further registration statements for the purpose of registering additional Notes
and in connection with which this Agreement is included or incorporated by
reference as an exhibit, the Company shall (i) promptly comply with its
obligations and take any steps as are required to be taken by it pursuant to
Sections 3(a), (d), (e) and (f) and (ii) after such registration statement shall
have been declared effective by the Commission and at the time and on the date
as shall be mutually agreed by the Company and the Agents, deliver to each Agent
and its counsel the opinions, certificates, letters and other documents required
to be delivered pursuant to paragraphs (c), (d), (e) and (f) of this Section 4,
provided that none of the Agents will solicit offers to purchase the Notes
registered pursuant to such registration statement until such opinions,
certificates, letters and other documents shall have been so delivered.
In addition to the foregoing, the obligation of any person who has
agreed to purchase Notes through an Agent to consummate such purchase at the
time designated therefor is subject to the condition precedent that such Agent
has not chosen to cease soliciting offers to purchase Notes at such time owing
to failure of the conditions precedent to such solicitation as provided above.
5. Indemnification and Contribution. (a) The Company agrees to
indemnify, defend and hold harmless you and any person who controls you within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act from and
against any loss, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, you or any such other indemnified
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 the Registration
Statement, the Prospectus or 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 (i) therein in conformity with information furnished in writing by you
to the Company expressly for use in any of such documents or (ii) in any Form
T-1 Statement of Eligibility under the Trust Indenture Act of any Trustee 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. The Company's agreement to
indemnify you or any such other
15
indemnified person as aforesaid is expressly conditioned upon it being notified
of the action in connection therewith brought against you 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 you 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 you or to such other
indemnified person otherwise than on account of the indemnity agreement
contained in this Section 5.
The Company shall assume the defense of any suit brought to enforce
any such liability or claim, including the employment of counsel satisfactory to
you and the payment of all expenses. You or such other indemnified 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 your expense or the expense of such
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 you or such controlling person
and the Company and you or such other indemnified 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 your behalf or on the behalf of such other indemnified 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 you and such other indemnified
persons, which firm (and local counsel, if any) shall be designated in writing
by you. 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 you with reasonable promptness of the
commencement of any litigation or proceedings against the Company or any of its
officers or directors in connection with the issue and sale of the Notes or with
the Registration Statement or Prospectus.
(b) You represent and warrant that the information furnished in
writing by you to the Company expressly for use with reference to you in the
Registration Statement or the Prospectus does not contain any untrue statement
of a material fact and does not omit to state a material fact in connection with
such information required to be stated in the Registration Statement or the
Prospectus or necessary to make such information not misleading.
You severally agree to indemnify, defend and hold harmless the
Company, its directors and officers and any person who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
from and against any loss, expense, liability or claim (including the reasonable
cost of investigation) which, jointly or severally, the Company or any other
indemnified 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 the Registration
Statement, the Prospectus or any amendment or supplement thereto which is in
reliance on and in conformity with information
16
furnished in writing by you to the Company expressly for use with reference to
you, 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. Your
agreement to indemnify the Company and any other indemnified person as aforesaid
is expressly conditioned upon your being notified of the action in connection
therewith brought against the Company or any other indemnified 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 claim shall have been
served upon the Company or any other indemnified person (or after the Company 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 you
shall not relieve you from any liability which you may have to the Company or
any other indemnified person otherwise than on account of the indemnity
agreement contained in this Section 5.
You shall assume the defense of any suit brought to enforce any such
liability or claim, including the employment of counsel satisfactory to the
Company or such other person and the payment of all expenses. The Company or
other indemnified 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 or such other indemnified person unless (i) the employment of such
counsel has been specifically authorized by you or (ii) the named parties to any
suit (including any impleaded parties) include the Company or such other
indemnified person and you, and the Company or such other indemnified 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 you, in which case you shall not have the right to assume the
defense of such action on behalf of the Company or such other indemnified
person, it being understood, however, that you 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 and such person,
which firm (and local counsel, if any) shall be designated in writing by the
Company. You shall not be liable for any settlement of any such action effected
without your 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 on the one hand and you 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 on
the one hand and of you 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 on the one hand and you on the other shall be deemed to
be in the same proportion as the total net
17
proceeds to the Company from sales of the Notes to which such losses, expenses,
liabilities or claims relate bears to the aggregate commissions received by you
pursuant to Section 2 hereof in connection with the sale of such Notes. The
relative fault of the Company on the one hand and of you 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 or by
you 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.
The Company and you agree that it would not be just and equitable if
contribution pursuant to this Agreement were determined by pro rata allocation
(even if you were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. Notwithstanding the
provisions of this Agreement, you shall not be required to contribute any amount
in excess of the amount by which the total price at which the Notes to which
such losses, expenses, liabilities or claims relate, placed by you exceeds the
amount of the damages which you have otherwise been required to pay by reason of
an 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 Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Your obligations in this subsection (c) to
contribute are several, in the same proportion which the amount of the Notes
which are the subject of the action and which were distributed to the public
through you pursuant to this Agreement bears to the total amount of such Notes
distributed to the public through all of you pursuant to this Agreement, and not
joint.
The obligations of the Company and you under this Section 5 shall be
in addition to any liability that the Company or you may otherwise have.
6. Position of the Agent. Except for purchases pursuant to Section
2(b) hereof, in soliciting offers to purchase the Notes, each Agent is acting
individually and not jointly and is acting solely as agent for the Company, and
not as principal. Each Agent shall make reasonable efforts to assist the Company
in obtaining performance by each purchaser whose offer to purchase Notes has
been solicited by such Agent and accepted by the Company, but such Agent shall
not have any liability to the Company in the event any such purchase is not
consummated for any reason. Except for purchases pursuant to Section 2(b)
hereof, under no circumstances will such Agent be obligated to purchase any
Notes for its own account.
7. Termination. This Agreement may be terminated at any time either by
the Company as to any Agent or, in the case of any Agent, by such Agent upon the
giving of written notice of such termination to the other parties hereto. In the
event of such termination, no party shall have any liability to the other
parties hereto, except as provided herein and except that, if at the time of
termination an offer to purchase any of the Notes has been accepted by the
Company but the time of delivery to the purchaser or its agent of the Note or
Notes relating thereto has not occurred, the Company's obligations provided
herein shall not be terminated. In the case of
18
purchases pursuant to Section 2(b) hereof, the Company's obligations pursuant to
Section 3 hereof shall not be terminated so long as any Purchaser continues to
hold the Note or Notes as principal for its own account or for resale to others.
8. Representations, Warranties, Agreements, Indemnities and Other
Statements to Survive. The respective representations, warranties, agreements,
indemnities and other statements of the Company or its officers and of each
Agent set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of any Agent or
the Company or any of the officers, directors or controlling persons referred to
above, and will survive delivery of and payment for the Notes. The provisions of
Sections 3(c), 3(f) and 5 hereof shall survive the termination or cancellation
of this Agreement.
9. Notices. All communications hereunder will be in writing and will
be mailed, delivered or telegraphed and confirmed to the party receiving such
communication at its address indicated below:
CIT Group Inc.
0 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Executive Vice President and General
Counsel
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium-Term Note Desk
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
ABN AMRO Incorporated
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Rock Fu
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxx Xxxxx
Xxxx of America Securities LLC
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
19
New York, New York 10019
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MTN Trading
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
BNP Paribas Securities Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium-Term Note Department
Telephone : (000) 000-0000
Telecopy: (000) 000-0000
Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Short and Medium-Term Finance Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
20
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Debt Capital Markets
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xx.
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Xxxxxxxxx: (000) 000-0000
Telecopy: (000) 000-0000
HSBC Securities (USA) Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium Term Notes Desk
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
HSBC Securities (USA) Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Transaction Execution Group
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
4 World Financial Center, 15th Floor
New York, New York 10080
Attention: Global Transaction Management Group - Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
21
Telecopy: (000) 000-0000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, New York 10036
Attention: Manager - Continuously Offered Products
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, New York 10036
Attention: Investment Banking Information Center
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Fixed Income Syndicate
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Wachovia Capital Markets, LLC
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0602
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, the officers, directors and controlling persons
referred to in Section 5 hereof and their respective heirs, executors,
administrators, successors and assigns, and no other person will have any right
or obligation hereunder except as provided in the first paragraph of this
Agreement.
11. Governing Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York. This
Agreement may be executed in counterparts and the executed counterparts shall
together constitute a single instrument.
22
Very truly yours,
CIT GROUP INC.
By
--------------------------------
Name:
Title:
The foregoing is hereby
confirmed and accepted
as of the date specified above.
XXXXXX BROTHERS INC.
By
-------------------------------
Name:
Title:
ABN AMRO INCORPORATED
By
-------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC
By
-------------------------------
Name:
Title:
BARCLAYS CAPITAL INC.
By
-------------------------------
Name:
Title:
23
BEAR, XXXXXXX & CO. INC.
By
-------------------------------
Name:
Title:
BNP PARIBAS SECURITIES CORP.
By
-------------------------------
Name:
Title:
CITIGROUP GLOBAL MARKETS INC.
By
-------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON LLC
By
-------------------------------
Name:
Title:
DEUTSCHE BANK SECURITIES INC.
By
-------------------------------
Name:
Title:
By
-------------------------------
Name:
Title:
24
XXXXXXX, XXXXX & CO.
By
-------------------------------
Name:
Title:
HSBC SECURITIES (USA) INC.
By
-------------------------------
Name:
Title:
X.X. XXXXXX SECURITIES INC.
By
-------------------------------
Name:
Title:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By
-------------------------------
Name:
Title:
XXXXXX XXXXXXX & Co. INCORPORATED
By
-------------------------------
Name:
Title:
25
UBS SECURITIES LLC
By
-------------------------------
Name:
Title:
By
-------------------------------
Name:
Title:
WACHOVIA CAPITAL MARKETS, LLC
By
-------------------------------
Name:
Title:
26
Exhibit A
[MTN Opinion of Shearman & Sterling LLP]
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware with corporate
power and authority under such law to conduct its business as described in the
Prospectus.
(ii) The Global Selling Agency Agreement has been duly authorized,
executed and delivered by the Company.
(iii) Each of the Senior Indenture and Subordinated Indenture has been
duly authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the applicable Trustee, constitutes a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms.
(iv) When the final terms of the Senior Notes and the Subordinated
Notes have been duly established and approved, and when such Senior Notes and
Subordinated Notes have been duly authorized and executed by the Company and
duly authenticated by the Trustee in accordance with the terms of the Senior
Indenture and Subordinated Indenture, as applicable, and delivered to and paid
for by the purchasers thereof pursuant to the Global Selling Agency Agreement,
the Senior Notes and the Subordinated Notes will constitute valid and binding
obligations of the Company, entitled to the benefits of such Indenture and
enforceable against the Company in accordance with their terms.
(v) The statements in the Prospectus under the caption "Description of
Debt Securities" and "Description of Notes," insofar as such statements
constitute summaries of legal matters or documents referred to therein, fairly
summarize in all material respects the legal matters or documents referred to
therein.
(vi) Each of the Senior Indenture and the Subordinated Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended.
(vii) The Registration Statement has been declared effective under the
Act and, to our knowledge, as of the date hereof, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Act and no
proceedings for such purpose have been initiated or threatened by the
Commission.
(viii) Each of the Registration Statement and the Prospectus (other
than the financial statements and other financial or statistical data contained
or incorporated by reference therein or omitted therefrom and the Trustee's
Statements of Eligibility on Form T-1, as to which we express no opinion)
appears on its face to be appropriately responsive in all material respects to
the requirements of the Act and the applicable rules and regulations of the
Commission thereunder.
(ix) Each of the documents incorporated by reference in the Prospectus
(other than the financial statements and other financial or statistical data
contained or incorporated by reference
therein or omitted therefrom, as to which we express no opinion), at the time it
was filed with the Commission, appears on its face to have been appropriately
responsive in all material respects to the requirements of the Securities
Exchange Act of 1934, as amended, and the applicable rules and regulations of
the Commission thereunder.
(x) The execution and delivery by the Company of the Global Selling
Agency Agreement and the Indentures do not, and the performance by the Company
of its obligations thereunder and the consummation of the transactions
contemplated thereby will not, (a) result in a violation of the Company's
certificate of incorporation or by-laws, (b) result in a violation of Generally
Applicable Law or (c) result in a breach of, a default under or the acceleration
of (or entitle any party to accelerate) the maturity of any obligation of the
Company under, or result in or require the creation of any lien upon or security
interest in any property of the Company pursuant to the terms of, any document
or contract filed as an exhibit to the Company's annual report on Form 10-K for
the year ended December 31, 2003 or the Company's quarterly reports on Form 10-Q
for the quarterly periods ended March 31, 2004 and June 30, 2004 pursuant to
Items 601(b)(4) or 601(b)(10) of Regulation S-K under the Act.
(xi) The Company is not required to register as an investment company
under the Investment Company Act of 1940, as amended.
(xii) No authorization, approval or other action by, and no notice to
or filing with, any United States federal or New York governmental authority or
regulatory body is required for the due execution, delivery or performance by
the Company of the Global Selling Agency Agreement and the Indentures, except as
have been obtained and are in full force and effect under the Act or the Trust
Indenture Act or as may be required under the state securities or blue sky laws
of any jurisdiction in the United States in connection with the offer and sale
of the Notes.
The opinions set forth above in paragraphs (iii) and (iv) are subject
to (a) the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally (including
without limitation all laws relating to fraudulent transfers), and (b) the
effect of general principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
No facts came to our attention which gave us reason to believe that
(i) the Registration Statement (other than the financial statements and other
financial or statistical data contained or incorporated by reference therein or
omitted therefrom and the Trustee's Statements of Eligibility on Form T-1, as to
which we have not been requested to comment), as of the date such Registration
Statement was declared effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (ii) the Prospectus
(other than the financial statements and other financial or statistical data
contained or incorporated by reference therein or omitted therefrom, as to which
we have not been requested to comment), as of its date and the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
Exhibit B
[Opinion of CIT's General Counsel]
(i) The Company is duly qualified or licensed and in good standing as a
foreign corporation in each jurisdiction where its business requires such
qualification or licensing, except where the failure to be so qualified,
licensed or in good standing would not have a material adverse effect on the
business, operations, assets or financial condition of the Company.
(ii) Each of the Company's subsidiaries that is a "significant subsidiary"
(as such term is defined in Rule 1-02 of Regulation S-X under the Act), is
validly existing, has the corporate power to transact the business in which it
is engaged, is duly qualified and in good standing as a foreign corporation in
each of the several states and jurisdictions where its business requires such
qualifications, where its business requires such licensing and where the failure
to be so qualified or licensed would have a material adverse effect on the
consolidated financial position and results of operations of the Company.
(iii) To my knowledge there are no legal or governmental proceedings
required to be described in the Prospectus which are not described as required,
or any contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required.
Exhibit C
[Opinion of Xxxxxxxx & Sterling LLP]
(i) The Company is a corporation duly incorporated, validly existing
and in good standing under the law of the State of Delaware with corporate power
and authority under such law to conduct its business as described in the
Prospectus.
(ii) The Company (a) has the corporate power to execute, deliver and
perform its obligations under each of the Terms Agreement, the Global Selling
Agency Agreement, the Indenture, the Notes, the Registration Statement, the
Prospectus, including any prospectus supplement thereto and the Pricing
Supplement (each an "Opinion Document" and collectively, the "Opinion
Documents"), to which it is a party and (b) has taken all corporate action
necessary to authorize the execution, delivery and performance of its
obligations under each Opinion Document to which it is a party.
(iii) The execution and delivery by the Company of each Opinion
Document to which it is a party do not, and the performance by the Company of
its obligations thereunder and the consummation of the transactions contemplated
thereby will not, (a) result in a violation of the Company's certificate of
incorporation or by-laws, (b) result in a violation of Generally Applicable Law
or (c) result in a breach of, a default under or the acceleration of (or entitle
any party to accelerate) the maturity of any obligation of the Company under, or
result in or require the creation of any lien upon or security interest in any
property of the Company pursuant to the terms of, any document or contract filed
as an exhibit, pursuant to Items 601(b)(4) or 601(b)(10) of Regulation S-K under
the Act, to the Company's most recently filed annual report on Form 10-K or the
Company's quarterly reports on Form 10-Q for the quarterly periods ended since
the filing date of the Company's most recently filed annual report on Form 10-K.
(iv) No authorization, approval or other action by, and no notice to
or filing with, any United States federal or New York governmental authority or
regulatory body is required for the due execution, delivery or performance by
the Company of any Opinion Document to which it is a party, except as have been
obtained and are in full force and effect under the Act or the Trust Indenture
Act or as may be required under the state securities or "blue sky" laws of any
jurisdiction in the United States in connection with the offer and sale of the
Notes.
(v) The Registration Statement has been declared effective under the
Act and, to the our knowledge, as of the date hereof, no stop order suspending
the effectiveness of the Registration Statement has been issued under the Act
and no proceedings for such purpose have been initiated or threatened by the
Commission.
(vi) Each of the Global Selling Agency Agreement and the Terms
Agreement has been duly executed and delivered by the Company.
(vii) The Indenture has been duly executed and delivered and is the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
(viii) The Notes have been duly executed by the Company and, when
authenticated by the Trustee in accordance with the Indenture and delivered and
paid for as provided in the Global Selling Agency Agreement and the Terms
Agreement, the Notes will be the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture.
(ix) The Company is not and, after giving effect to the issuance of
the Notes and the use of proceeds therefrom, as specified in the Prospectus,
will not be required to register as an investment company under the Investment
Company Act of 1940, as amended.
(x) The Indenture has been duly qualified under the Trust Indenture
Act.
(xi) The description of the Notes and the Indenture in the Prospectus,
in each case, insofar as such statements constitute summaries of legal matters
or documents referred to therein, fairly summarize in all material respects the
legal matters or documents referred to therein.
The opinions set forth above in paragraphs (vii) and (viii) are
subject to (a) the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
(including without limitation all laws relating to fraudulent transfers), and
(b) the effect of general principles of equity, including without limitation
concepts of materiality, reasonableness, good faith and fair dealing (regardless
of whether considered in a proceeding in equity or at law).
No facts came to our attention which gave us reason to believe that
(i) the Registration Statement (other than the financial statements and other
financial or statistical data contained or incorporated by reference therein or
omitted therefrom and the Trustee's Statement of Eligibility on Form T-1, as to
which we have not been requested to comment), as of the date such Registration
Statement was declared effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (ii) the Prospectus
(other than the financial statements and other financial or statistical data
contained or incorporated by reference therein or omitted therefrom, as to which
we have not been requested to comment), as of its date and the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
SCHEDULE I
Schedule of Indentures
Senior Indenture
Indenture, dated as of _______, 2004, between CIT Group Inc., a
Delaware corporation and X.X. Xxxxxx Trust Company, National
Association, as Trustee.
Subordinated Indenture
Indenture, dated as of _______, 2004, between CIT Group Inc., a
Delaware corporation and X.X. Xxxxxx Trust Company, National
Association, as Trustee.
SCHEDULE S
OFFERING RESTRICTIONS
Each Agent agrees that it will not offer, sell, or deliver any of
the Notes, directly or indirectly, or distribute the Prospectus Supplement, the
Prospectus, any Pricing Supplement or any other offering material relating to
the Notes, in or from any jurisdiction except under circumstances that will, to
the best of the Agent's knowledge and belief, result in compliance with the
applicable laws and regulations and which will not impose any obligations on the
Company except as set forth in the Global Selling Agency Agreement.
United Kingdom
Each Agent represents, agrees and covenants that it and each of
its affiliates:
1. No offer to public: with respect to Notes which have a
maturity of one year or more and which are not to be admitted to the Official
List of the UK Listing Authority, it has not offered or sold and prior to the
expiry of a period of six months from the issue date of such Notes will not
offer or sell any such Notes to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995;
2. No deposit taking: In relation any Notes to be issued which
have a maturity of less than one year, (a) it is a person whose ordinary
activities involve it in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of its business and (b) it
has not offered or sold and will not offer or sell any Notes other than to
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes of their
businesses or who it is reasonable to expect will acquire, hold, manage or
dispose of investments (as principal or agent) for the purposes of their
businesses where the issue of the Notes would otherwise constitute a
contravention of section 19 of the Financial Services and Markets Act of 2000
(the "FSMA") by the Issuer.
3. Financial Promotion: it has only communicated or caused to be
communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the meaning of
Section 21 of the the FSMA) received by it in connection with the issue or sale
of any Notes in circumstances in which Section 21(1) of the FSMA does not, or
in the case of the Company, would not, if it was not an authorized institution,
apply to the Company; and
4. General Compliance: it has complied and will comply with all
applicable provisions of Part VI of the FSMA with respect to anything done by it
in relation to any Notes in, from or otherwise involving the United Kingdom.
2
Germany
Each Agent confirms that it is aware of the fact that no German
sales prospectus (Verkaufsprospekt) within the meaning of the Securities Sales
Prospectus Act (Wertpapier-Verkaufsprospektgesetz) of the Federal Republic of
Germany has been or will be published with respect to the Notes and that it will
comply with the Securities Sales Prospectus Act and any other laws and legal and
regulatory requirements applicable in the Federal Republic of Germany with
respect to the issue, sale and offering of securities. In particular, each of
the Agents represents that it has not engaged and agrees that it will not engage
in a public offering (offentliches Angebot) within the meaning of the Securities
Sales Prospectus Act with respect to any Notes otherwise in accordance with the
Securities Sales Prospectus Act.
The Netherlands
Each Agent represents and agrees that it has not, directly or
indirectly, offered or sold and will not, directly or indirectly, offer or sell
in The Netherlands any Notes with a denomination of less than 'E'50,000 (or
its foreign currency equivalent) other than to persons who trade or invest in
securities in the conduct of a profession or business (which includes banks,
stockbrokers, insurance companies, pension funds, other institutional investors
and finance companies and treasury departments of large enterprises) unless one
of the other exemptions or exceptions to the prohibition contained in Article 3
of the Dutch Securities Transactions Supervision Act 1995 ("Wet toezicht
effectenverkeer 1995") is applicable and the conditions attached to such
exemption or exception are complied with.
The Republic of France
Each Agent represents and agrees that it has not offered or sold
and will not offer or sell, directly or indirectly, the Notes in France, except
in compliance with the relevant regulations issued from time to time by the
Commission des Operations de Bourse and to (i) qualified investors
(investisseurs qualifies) and/or (ii) a limited number of investors (cercle
restreint d'investisseurs), all as defined in and in accordance with Articles L
411-1 and L 411-2 of the French Code Montetaire et Financier and decret no.
98-880 dated October 1, 1998.
Japan
No series of Notes has been nor will be registered under the
Securities and Exchange Law of Japan and each of the Agents has represented and
agreed that it and its affiliates have not offered or sold, and will not offer
or sell, directly or indirectly, any of the Notes by it in or to residents of
Japan or to any persons for reoffering or resale, directly or indirectly, in
Japan or to any resident of Japan, except pursuant to an exemption from the
registration requirements of the Securities and Exchange Law of Japan available
thereunder and otherwise in compliance with the Securities and Exchange Law of
Japan and the other relevant laws, regulations and ministerial guidelines of
Japan.
Hong Kong
Each Agent and its affiliates have represented and agreed that
they have not offered or sold, and they will not offer or sell, the Notes by
means of any document to persons in
3
Hong Kong other than persons whose ordinary business it is to buy or sell shares
or debentures, whether as principal or agent, or otherwise in circumstances
which do not constitute an offer to the public within the meaning of the Hong
Kong Companies Ordinance (Chapter 32 of the Laws of Hong Kong).
Italy
Each Agent has represented and agreed that the offering of the
notes has not been cleared by CONSOB (the Italian Securities and Exchange
Commission) pursuant to Italian securities legislation and, accordingly, no
notes may be offered, sold or delivered, nor may copies of this pricing
supplement or of any other document relating to the notes be distributed, in the
Republic of Italy, except (i) to professional investors (operatori qualificati),
as defined in Article 31, second paragraph, of CONSOB Regulation No. 11522 of
July 1, 1998, as amended, or (ii) in circumstances which are exempted from the
rules on solicitation of investments pursuant to Article 100 of Legislative
Decree No. 58 of February 24, 1998 (the "Financial Services Act") and Article
33, first paragraph, of CONSOB Regulation No. 11971 of May 14, 1999, as amended.
Each Agent has further represented and agreed that any offer,
sale or delivery of the notes or distribution of copies of this pricing
supplement or other document relating to the notes in the Republic of Italy
under (i) or (ii) above must be:
(a) made by an investment firm, bank or financial intermediary
permitted to conduct such activities in the Republic of Italy in
accordance with the Financial Services act and Legislative Decree No.
385 of September 1, 1993 (the "Banking Act"), as amended; and
(b) in compliance with Article 129 of the Banking Act and the
implementing guidelines of the Bank of Italy pursuant to which the
issue on the offer of securities in the Republic of Italy may need to
be preceded and followed by an appropriate notice to be filed with the
Bank of Italy depending, among other things, on the aggregate value of
the securities issued or offered in the Republic of Italy and their
characteristics; and
(c) in accordance with any other applicable laws and regulations.
EXHIBIT I
CIT GROUP INC.
Global Medium-Term Note Administrative Procedures
Global Medium-Term Notes (the "Senior Notes") and Global Medium-Term
Subordinated Notes (the "Subordinated Notes"; the Senior Notes and the
Subordinated Notes are referred to collectively herein as the "Notes"), Due 9
Months or More from Date of Issue are to be offered on a continuing basis by CIT
Group Inc. (the "Company"). Xxxxxx Brothers Inc., ABN AMRO Incorporated, Banc of
America Securities LLC, Barclays Capital Inc., Bear, Xxxxxxx & Co. Inc., BNP
Paribas Securities Corp., Citigroup Global Markets Inc., Credit Suisse First
Boston LLC, Deutsche Bank Securities Inc., HSBC Securities (USA) Inc., Xxxxxxx,
Xxxxx & Co., X.X. Xxxxxx Securities Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated, UBS Securities LLC and Wachovia
Capital Markets, LLC (individually, an "Agent", and collectively, the "Agents")
have agreed to use reasonable best efforts to solicit purchases of the Notes.
The Agents will not be obligated to purchase Notes for their own accounts. The
Notes are being sold pursuant to a Global Selling Agency Agreement between the
Company and the Agents dated _______, 2004 (the "Selling Agency Agreement"), and
have been, or prior to sale will be, registered with the Securities and Exchange
Commission (the "Commission"). X.X. Xxxxxx Trust Company, National Association
(the "Senior Trustee") is the trustee under the indenture described on Schedule
I covering the Senior Notes (the "Senior Indenture"). The Company may change or
add trustees to Schedule I attached hereto with the consent of the Agents, which
consent shall not be unreasonably withheld. X.X. Xxxxxx Trust Company, National
Association (the "Subordinated Trustee") is the trustee under the indenture
described on Schedule I covering the Subordinated Notes (the "Subordinated
Indenture"). The Senior Indenture and the Subordinated Indenture are
collectively referred to herein as the "Indentures". The Senior Trustee and the
Subordinated Trustee, including any agent acting for them, are each referred to
herein as a "Trustee". The banks listed on Schedule II attached hereto
(individually, a "Bank" and collectively, the "Banks") may act as the
registrars, paying agents, exchange rate agents and authenticating agents for
the Notes. The Company may change or add banks to Schedule II. The Company may
appoint more than one Bank to act as the registrar, paying agent, exchange rate
agent and authenticating agent, which Bank may or may not be the same as the
Trustee for the Notes.
Each Note will be represented by either a Global Note (as defined
hereinafter) delivered to a Bank as agent for The Depository Trust Company
("DTC"), Clearstream Banking, societe anonyme ("Clearstream"), or Euroclear Bank
S.A./N.V. ("Euroclear") (each of DTC, Clearstream and Euroclear, a
"Depositary"), and recorded in the book-entry system maintained by the
applicable Depositary (a "Book-Entry Note") or a certificate delivered to the
holder thereof or a person designated by such holder (a "Certificated Note").
Only Notes denominated and payable in U.S. dollars may be issued as Book-Entry
Notes. An owner of a Book-Entry Note will not be entitled to receive a
certificate representing such Note.
The procedures to be followed during, and the specific terms of,
the solicitation of offers to purchase by the Agents and the sale as a result
thereof by the Company are explained
2
below. Administrative and record-keeping responsibilities will be handled for
the Company by its Treasury Department. The Company will advise the Agents, the
Banks and the Trustees of those persons handling administrative responsibilities
with whom the Agents, the Banks and the Trustees are to communicate regarding
orders to purchase Notes and the details of their delivery.
Administrative procedures and specific terms of the offering are
explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof, as adjusted in accordance
with changes in the applicable Depositary's operating requirements, and
Certificated Notes will be issued in accordance with the administrative
procedures set forth in Part II hereof. Unless otherwise defined herein, terms
defined in the Indentures and the Notes shall be used herein as therein defined.
Notes for which interest is calculated on the basis of a fixed interest rate,
which may be zero, are referred to herein as "Fixed Rate Notes". Notes for which
interest is calculated on the basis of a floating interest rate are referred to
herein as "Floating Rate Notes". To the extent the procedures set forth below
conflict with the provisions of the Notes, the Indentures, the applicable
Depositary's operating requirements or the Selling Agency Agreement, the
relevant provisions of the Notes, the Indentures, the applicable Depositary's
operating requirements or the Selling Agency Agreement, as the case may be,
shall control.
PART I
Administrative Procedures for
Book-Entry Notes
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Clearstream or
Euroclear, one or more Banks will perform the custodial, document control and
administrative functions described below with respect to particular Notes, in
accordance with their respective obligations under a Letter of Representations
from the Company and each such Bank to the applicable Depositary dated as of the
date hereof, a Global Medium-Term Note Certificate Agreement between such Bank
and the applicable Depositary, and the Banks' obligations as participants in
such Depositary, including such Depositary's settlement procedures.
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, the Company will issue a single global
Note in fully registered form without coupons
(a "Global Note") representing up to
$500,000,000 principal amount of all such
Book-Entry Notes that have the same original
issue date, original issue discount provisions,
if any, Interest Payment Dates, Record Dates,
Interest Payment Period, redemption or
repayment provisions, if any, Maturity Date,
priority and, in the case of Fixed Rate Notes,
interest rate, or, in the case of Floating Rate
Notes, initial interest rate, interest rate
basis, Index Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread
Multiplier, if any, minimum interest rate, if
any, and maximum interest rate, if any
(collectively, the
3
"Terms"). Each Global Note will be dated and
issued as of the date of its authentication by
the Bank acting as authenticating agent for
such Note. Each Global Note will bear an
original issue date, which will be (i) with
respect to an original Global Note (or any
portion thereof), the original issue date
specified in such Global Note and (ii)
following a consolidation of Global Notes, with
respect to the Global Note resulting from such
consolidation, the most recent Interest Payment
Date to which interest has been paid or duly
provided for on the predecessor Global Notes,
regardless of the date of authentication of
such resulting Global Note. No Global Note will
represent (i) both Fixed Rate Book-Entry Notes
and Floating Rate Book-Entry Notes or (ii) any
Certificated Note.
Identification Numbers: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation of
a series of CUSIP numbers, which series
consists of approximately 900 CUSIP numbers and
relates to the Global Notes representing
Book-Entry Notes. The Company has obtained from
the CUSIP Service Bureau a written list of such
reserved CUSIP numbers and will assign CUSIP
numbers to Global Notes as described below
under Settlement Procedure "B" and communicate
such assignment to the applicable Bank and DTC.
DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the
Company has assigned to Global Notes. At any
time when fewer than 100 of the reserved CUSIP
numbers remain unassigned to the Global Notes,
and, if it deems necessary, the Company will
reserve additional CUSIP numbers for assignment
to the Global Notes. Upon assigning such
additional CUSIP numbers, the Company shall
communicate such assignment to the applicable
Bank and DTC.
Registration: Global Notes will be issued only in fully
registered form without coupons. Each Global
Note will be registered in the name of a
nominee for the applicable Depositary, on the
securities register for the Notes maintained
under the applicable Indenture. The beneficial
owner of a Book-Entry Note (or one or more
indirect participants in the applicable
Depositary designated by such owner) will
designate one or more participants in the
applicable Depositary (with respect to such
Book-Entry Note, the "Participants") to act as
agent or agents for such owner in connection
with the book-entry system maintained by the
applicable Depositary, and the applicable
Depositary will
4
record in book-entry form, in accordance with
instructions provided by such Participants, a
credit balance with respect to such beneficial
owner in such Book-Entry Note in the account of
such Participants. The ownership interest of
such beneficial owner (or such Participant) in
such Book-Entry Note will be recorded through
the records of such Participants or through the
separate records of such Participants and one
or more indirect participants in such
Depositary.
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by the
applicable Depositary and, in turn, by
Participants (and in certain cases, one or more
indirect participants in the applicable
Depositary) acting on behalf of beneficial
transferors and transferees of such Note.
Exchanges: The applicable Bank may deliver to the
applicable Depositary and the CUSIP Service
Bureau at any time a written notice of
consolidation (a copy of which shall be
attached to the resulting Global Note described
below) specifying (i) the CUSIP numbers of two
or more outstanding Global Notes that represent
(A) Fixed Rate Book-Entry Notes having the same
Terms and for which interest has been paid to
the same date or (B) Floating Rate Book-Entry
Notes having the same Terms and for which
interest has been paid to the same date, (ii) a
date, occurring at least thirty days after such
written notice is delivered and at least thirty
days before the next Interest Payment Date for
such Book-Entry Notes, on which such Global
Notes shall be exchanged for a single
replacement Global Note and (iii) a new CUSIP
number, obtained from the Company, to be
assigned to such replacement Global Note. Upon
receipt of such a notice, the applicable
Depositary will send to its participants
(including such Bank) a written reorganization
notice to the effect that such exchange will
occur on such date. Prior to the specified
exchange date, such Bank will deliver to the
CUSIP Service Bureau a written notice setting
forth such exchange date and such new CUSIP
number and stating that, as of such exchange
date, the CUSIP numbers of the Global Notes to
be exchanged will no longer be valid. On the
specified exchange date, such Bank will
exchange such Global Notes for a single Global
Note bearing the new CUSIP number and the CUSIP
numbers of the exchanged Global Notes will, in
accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
5
reassigned. Notwithstanding the foregoing, if
the Global Notes to be exchanged exceed
$500,000,000 in aggregate principal amount, one
Global Note will be authenticated and issued to
represent each $500,000,000 of principal amount
of the exchanged Global Notes and an additional
Global Note will be authenticated and issued to
represent any remaining principal amount of
such Global Notes (see "Denominations" below).
Maturities: Each Book-Entry Note will mature on a date not
less than nine months after the settlement date
for such Note.
Denominations: Book-Entry Notes will be issued in principal
amounts of $1,000 and integral multiples of
$1,000 in excess thereof, or, in the case of
Foreign Currency Notes, in the denominations
indicated in the applicable Pricing Supplement
(defined below) to the Prospectus (defined
below). Global Notes will be denominated in
principal amounts not in excess of
$500,000,000. If one or more Book-Entry Notes
having an aggregate principal amount in excess
of $500,000,000 would, but for the preceding
sentence, be represented by a single Global
Note, then one Global Note will be
authenticated and issued to represent each
$500,000,000 principal amount of such
Book-Entry Note or Notes and an additional
Global Note will be authenticated and issued to
represent any remaining principal amount of
such Book-Entry Note or Notes. In such a case,
each of the Global Notes representing such
Book-Entry Note or Notes shall be assigned the
same CUSIP number.
Interest: General. Interest, if any, on each Book-Entry
Note will accrue from the original issue date
for the first interest period or the last date
to which interest has been paid, if any, for
each subsequent interest period, on the Global
Note representing such Book-Entry Note, and
will be calculated and paid in the manner
described in such Book-Entry Note and in the
Prospectus relating to the Notes, dated
_____________, 2004 of the Company, as
supplemented by a Prospectus Supplement, dated
_______, 2004 (together, and as further amended
or supplemented from time to time, the
"Prospectus"), as supplemented by the
applicable Pricing Supplement (the "Pricing
Supplement"). Unless otherwise specified
therein, each payment of interest on a
Book-Entry Note will include interest accrued
to but excluding the Interest Payment Date
(provided that, in the case of Floating Rate
Book-Entry
6
Notes which reset daily or weekly, interest
payments will include accrued interest to and
including the Record Date immediately preceding
the Interest Payment Date) or to but excluding
Maturity (other than a Maturity of a Fixed Rate
Book-Entry Note occurring on the 31st day of a
month, in which case such payment of interest
will include interest accrued to but excluding
the 30th day of such month). Interest payable
at the Maturity of a Book-Entry Note, other
than on a day that would otherwise be an
Interest Payment Date, will be payable to the
person to whom the principal of such Note is
payable. Standard & Poor's Corporation will use
the information received in the pending deposit
message described under Settlement Procedure
"C" below in order to include the amount of any
interest payable and certain other information
regarding the related Global Note in the
appropriate (daily or weekly) bond report
published by Standard & Poor's Corporation.
Record Dates. Unless otherwise specified in the
applicable Pricing Supplement, the Record Date
with respect to any Interest Payment Date shall
be the date fifteen calendar days immediately
preceding such Interest Payment Date.
Interest Payment Dates on Fixed Rate Book-Entry
Notes. Unless otherwise specified pursuant to
Settlement Procedure "A" below, interest
payments on Fixed Rate Book-Entry Notes will be
made semiannually on January 15 and July 15 of
each year and at Maturity; provided, however,
that, unless otherwise specified in the
applicable Pricing Supplement, in the case of a
Fixed Rate Book-Entry Note issued between a
Record Date and an Interest Payment Date, the
first interest payment will be made on the
Interest Payment Date following the next
succeeding Record Date.
Interest Payment Dates on Floating Rate
Book-Entry Notes. Unless otherwise specified in
the applicable Pricing Supplement, interest
payments will be made on Floating Rate
Book-Entry Notes monthly, quarterly,
semi-annually or annually and will be payable
on the dates established by the Company on the
date of issue and set forth therein and in the
applicable Pricing Supplement; provided,
however, that if an Interest Payment Date for a
Floating Rate Book-Entry Note would otherwise
be a day that is not a business day with
respect to such Floating Rate Book-Entry Note,
such Interest Payment Date will be the next
succeeding business day with respect to such
Floating Rate
7
Book-Entry Note, except that in the case
of a Floating Rate Book-Entry Note for which
the interest rate basis is LIBOR, if such
business day is in the next succeeding calendar
month, such Interest Payment Date will be the
immediately preceding business day; and
provided further, that in the case of a
Floating Rate Book-Entry Note issued between a
Record Date and an Interest Payment Date, the
first interest payment will be made on the
Interest Payment Date following the next
succeeding Record Date.
Notice of Interest Rates. Promptly after each
Interest Determination Date for Floating Rate
Book-Entry Notes, the Company, as Calculation
Agent, will notify the applicable Bank and
Standard & Poor's Corporation of the interest
rates determined on such Interest Determination
Date.
Calculation of Interest: Fixed Rate Book-Entry Notes. Unless otherwise
specified in the applicable Pricing Supplement,
interest on Fixed Rate Book-Entry Notes
(including interest for partial periods) will
be calculated on the basis of a 360-day year of
twelve 30-day months.
Floating Rate Book-Entry Notes. Interest rates
on Floating Rate Book-Entry Notes will be
determined as set forth in the form of Notes.
Interest on Floating Rate Book-Entry Notes,
except as otherwise set forth therein, will be
calculated on the basis of actual days elapsed
and a year of 360 days, except that in the case
of a Floating Rate Book-Entry Note for which
the interest rate basis is the Treasury Rate,
interest will be calculated on the basis of the
actual number of days in the year.
Payments of Principal and Payment of Interest Only. Promptly after each
Interest: Record Date, the applicable Bank will deliver
to the Company and the applicable Depositary a
written notice setting forth, by CUSIP number,
the amount of interest to be paid on each
Global Note on the following Interest Payment
Date (other than an Interest Payment Date
coinciding with Maturity) and the total of such
amounts. The applicable Depositary will confirm
the amount payable on each Global Note on such
Interest Payment Date by reference to the
appropriate (daily or weekly) bond reports
published by Standard & Poor's Corporation. The
Company will pay to such Bank the total amount
of interest due on such Interest Payment Date
(other than at Maturity), and such Bank will
pay such amount to the applicable Depositary,
at the times and in the
8
manner set forth below under "Manner of
Payment". If any Interest Payment Date for a
Book-Entry Note is not a business day, the
payment due on such day shall be made on the
next succeeding business day and no interest
shall accrue on such payment for the period
from and after such Interest Payment Date,
except as previously discussed with respect to
certain Floating Rate Book-Entry Notes for
which the interest rate basis is LIBOR.
Payments at Maturity. On or about the first
business day of each month, each Bank will
deliver to the Company and the applicable
Depositary a written list of principal and
interest to be paid on each Global Note for
which such Bank is responsible and which will
mature (on a Maturity or Redemption Date or
otherwise) in the following month. The Company
and the applicable Depositary will confirm the
amounts of such principal and interest payments
with respect to each such Global Note on or
about the fifth business day preceding the
Maturity of such Global Note. On or before
Maturity, the Company will pay to such Bank the
principal amount of such Global Note, together
with interest due at such Maturity. Such Bank
will pay such amount to the applicable
Depositary at the times and in the manner set
forth below under "Manner of Payment". If any
Maturity of a Global Note representing
Book-Entry Notes is not a business day, the
payment due on such day shall be made on the
next succeeding business day and no interest
shall accrue on such payment for the period
from and after such Maturity. Promptly after
payment to the applicable Depositary of the
principal and interest due at Maturity of such
Global Note, such Bank will cancel such Global
Note in accordance with the applicable
Indenture and so advise the Company.
Manner of Payment. The total amount of any
principal and interest due on Global Notes on
any Interest Payment Date or at Maturity shall
be paid by the Company to the applicable Bank
in immediately available funds no later than
9:30 A.M. (New York City time), in the case of
Dollar Denominated Notes, or 9:30 A.M. (London
time), in the case of Foreign Currency Notes,
on such date. The Company will make such
payment on such Global Notes by instructing
such Bank to withdraw funds from an account
maintained by the Company at such Bank or by
wire transfer to such Bank. The Company will
confirm any such instructions in writing to
such Bank. Prior to 10:00 A.M. (New York City
time), in the case of Dollar
9
Denominated Notes, or 10:00 A.M. (London time),
in the case of Foreign Currency Notes, on the
date of Maturity or as soon as possible
thereafter, such Bank will pay by separate wire
transfer (using Fedwire message entry
instructions in a form previously specified by
the applicable Depositary) to an account at the
Federal Reserve Bank of New York previously
specified by such Depositary, in funds
available for immediate use by the Depositary,
each payment of principal (together with
interest thereon) due on a Global Note on such
date. On each Interest Payment Date (other than
at Maturity), interest payments shall be made
to the applicable Depositary, in funds
available for immediate use by the Depositary,
in accordance with existing arrangements
between the Bank and the Depositary. On each
such date, the applicable Depositary will pay,
in accordance with its operating procedures
then in effect, such amounts in funds available
for immediate use to the respective
Participants in whose names the Book-Entry
Notes represented by such Global Notes are
recorded in the book-entry system maintained by
the applicable Depositary. None of the Company,
the Trustees or such Bank shall have any direct
responsibility or liability for the payment by
the Depositary to such Participants of the
principal of and interest on the Book-Entry
Notes.
Withholding Taxes: The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Book-Entry Note
will be determined and withheld by the
Participant, indirect participant in the
applicable Depositary or other person
responsible for forwarding payments and
materials directly to the beneficial owner of
such Note.
Procedure for Rate Setting and The Company and the Agents will discuss from
Posting: time to time the aggregate principal amount of,
the issuance price of, and the interest rates
to be borne by, Book-Entry Notes that may be
sold as a result of the solicitation of orders
by the Agents. If the Company decides to set
prices of, and rates borne by, any Book-Entry
Notes in respect of which the Agents are to
solicit orders (the setting of such prices and
rates to be referred to herein as "posting") or
if the Company decides to change prices or
rates previously posted by it, it will promptly
advise the Agents of the prices and rates to be
posted.
10
Acceptance and Rejection of Unless otherwise instructed by the Company,
Orders: each Agent will advise the Company promptly by
telephone of all orders to purchase Book-Entry
Notes received by such Agent, other than those
rejected by it in whole or in part in the
reasonable exercise of its discretion. Unless
otherwise agreed by the Company and the Agents,
the Company has the right to accept orders to
purchase Book-Entry Notes and may reject any
such orders in whole or in part.
Preparation of Pricing If any order to purchase a Book-Entry Note is
Supplement: accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the Terms of
such Book-Entry Note and will arrange to have a
copy thereof filed with the Commission's
Electronic Data Gathering, Analysis, and
Retrieval ("XXXXX") system in accordance with
the applicable paragraph of Rule 424(b) under
the Act and will supply at least two copies
thereof (and additional copies if requested) to
the Agent which presented the order (the
"Presenting Agent"). One copy of such filed
document shall be sent by email, telecopy or
overnight express (for delivery not later than
11:00 A.M. on the second business day next
following the sale date and, in any case, not
prior to the filing date) to the Presenting
Agent at the following applicable addresses:
Xxxxxx Brothers Inc.:
c/o ADP Prospectus Services
on behalf of Xxxxxx Brothers Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Client Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
ABN AMRO Incorporated:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Rock Fu
11
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxx Xxxxx
Xxxx of America Securities LLC
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Barclays Capital Inc.:
c/o ADP Prospectus
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Client Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Bear, Xxxxxxx & Co. Inc.:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
BNP Paribas Securities Corp.:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Citigroup Global Markets Inc.:
Brooklyn Army Terminal
000 00xx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
12
Credit Suisse First Boston LLC:
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Deutsche Bank Securities Inc.:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Debt Capital Markets
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx, Xxxxx & Co.:
00 Xxxxx Xx.
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
13
HSBC Securities (USA) Inc.:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium Term Notes Desk
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
HSBC Securities (USA) Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
X.X. Xxxxxx Securities Inc.:
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Transaction Execution Group
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated:
c/o ADP Prospectus
Distribution Services
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxx Xxxxxxx & Co. Incorporated:
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, New York 10036
Attention: Medium-Term Note Trading Desk
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
UBS Securities LLC:
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
14
Attention: Fixed Income Syndicate
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Wachovia Capital Markets, LLC:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0602
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
For record keeping purposes, one copy of each
Pricing Supplement shall be mailed to the
Presenting Agent at the following applicable
addresses:
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium-Term Note Desk
Telecopy: (000) 000-0000
ABN AMRO Incorporated:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Banc of America Securities LLC:
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Rock Fu
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxx Xxxxx
Xxxx of America Securities LLC
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
15
Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MTN Trading
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Bear, Xxxxxxx & Co. Inc.:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
BNP Paribas Securities Corp.:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Citigroup Global Markets Inc.
Brooklyn Army Terminal
000 00xx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Short and Medium-Term Finance Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx
00 Xxxxxxx Xxxxxx
16
New York, New York 10010
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Debt Capital Markets
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
HSBC Securities (USA) Inc.:
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
X.X. Xxxxxx Securities Inc.:
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Transaction Execution Group
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated:
4 World Financial Center, 4th Floor
New York, New York 10080
Attention: Global Transaction Management Group - Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxx Xxxxxxx & Co. Incorporated:
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
17
Attention: Medium-Term Note Trading Desk
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
UBS Securities LLC:
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Fixed Income Syndicate
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Wachovia Capital Markets, LLC:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0602
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Presenting Agent will cause a Prospectus
and Pricing Supplement to be delivered to the
purchaser of such Book-Entry Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to
their use. Outdated Pricing Supplements (other
than those retained for files) will be
destroyed.
Suspension of Solicitation; Subject to the Company's representations,
Amendment or Supplement: warranties and covenants contained in the
Selling Agency Agreement, the Company may
instruct the Agents to suspend at any time, for
any period of time or permanently, the
solicitation of orders to purchase Book-Entry
Notes. Upon receipt of such instructions, the
Agents will forthwith suspend solicitation
until such time as the Company has advised them
that such solicitation may be resumed.
In the event that at the time the Company
suspends solicitation of the purchases there
shall be any orders outstanding for settlement,
the Company will promptly advise the Agents and
the applicable Banks whether such orders may be
settled and whether copies of the Prospectus as
in effect at the time of suspension, together
with the appropriate Pricing Supplement, may be
delivered in connection with the settlement of
such orders. The
18
Company will have the sole responsibility for
such decision and for any arrangements that may
be made in the event that the Company
determines that such orders may not be settled
or that copies of such Prospectus and Pricing
Supplement may not be so delivered.
If the Company decides to amend or supplement
the registration statement relating to the
registration of the Notes with the Commission
or the Prospectus or decides to file any
further registration statements for the purpose
of registering additional Notes and in
connection with which the Selling Agency
Agreement is included or incorporated by
reference as an exhibit, it will promptly
advise the Agents and furnish the Agents with
the proposed amendment or supplement or
registration statement and with such
certificates and opinions as are required, all
to the extent required by and in accordance
with the terms of the Selling Agency Agreement.
Subject to the provisions of the Selling Agency
Agreement, the Company may file with the
Commission any such supplement to the
Prospectus relating to the Notes. The Company
will provide the Agents, each Trustee and each
Bank with copies of any such supplement, and
confirm to the Agents that such supplement has
been filed with the Commission pursuant to the
applicable paragraph of Rule 424(b).
Procedures For When the Company has determined to change the
Rate Changes: interest rates of Book-Entry Notes being
offered, it will promptly advise the Agents and
the Agents will forthwith suspend solicitation
of orders. The Agents will telephone the
Company with recommendations as to the changed
interest rates. At such time as the Company has
advised the Agents of the new interest rates,
the Agents may resume solicitation of orders.
Until such time only "indications of interest"
may be recorded. On or prior to the last day on
which a Pricing Supplement is required to be
filed pursuant to the Act and the Rules and
Regulations, the Company will file with the
Commission a Pricing Supplement to the
Prospectus relating to such Book-Entry Notes
that reflects the applicable interest rates and
other terms and will deliver copies of such
Pricing Supplement to the applicable Agent.
19
Delivery of Prospectus: A copy of the Prospectus and a Pricing
Supplement relating to a Book-Entry Note must
accompany or precede the earliest of any
written offer of such Book-Entry Note,
confirmation of the purchase of such Book-Entry
Note or payment for such Book-Entry Note by its
purchaser. If notice of a change in the terms
of the Book-Entry Notes is received by the
Agents between the time an order for a
Book-Entry Note is placed and the time written
confirmation thereof is sent by the Presenting
Agent to a customer or his agent, such
confirmation shall be accompanied by a
Prospectus and Pricing Supplement setting forth
the terms in effect when the order was placed.
Subject to "Suspension of Solicitation;
Amendment or Supplement" above, the Presenting
Agent will deliver a Prospectus and Pricing
Supplement as herein described with respect to
each Book-Entry Note sold by it. The Company
will make such delivery if such Book-Entry Note
is sold directly by the Company to a purchaser
(other than an Agent).
Confirmation: For each order to purchase a Book-Entry Note
solicited by any Agent and accepted by or on
behalf of the Company, the Presenting Agent
will issue a confirmation to the purchaser,
with a copy to the Company, setting forth the
details set forth above and delivery and
payment instructions.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry
Note and the authentication and issuance of the
Global Note representing such Book-Entry Note
shall constitute "settlement" with respect to
such Book-Entry Note. All orders accepted by
the Company will be settled on the third
business day following the date of sale of such
Book-Entry Note pursuant to the timetable for
settlement set forth below unless the Company,
the applicable Bank and the purchaser agree to
settlement on another day which shall be no
earlier than the next business day following
the date of sale.
Settlement Procedures for Settlement Procedures with respect to each
Dollar Denominated Notes: Dollar Denominated Note sold by the Company
through any Agent, as agent, shall be as
follows:
A. The Presenting Agent will advise the Company
by telephone of, and confirm in writing, the
following settlement information:
20
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Note, the
interest rate or, in the case of a
Floating Rate Note, the interest rate
basis (including, if LIBOR, the
method for determining LIBOR),
initial interest rate (if known at
such time), Index Maturity, Interest
Reset Period and Interest Reset Dates
(if any), Spread or Spread Multiplier
(if any), minimum interest rate (if
any) and maximum interest rate (if
any).
4. Interest Payment Dates and the
Interest Payment Period.
5. Settlement date.
6. Price.
7. Presenting Agent's commission,
determined as provided in Section 2
of the Selling Agency Agreement.
8. Priority (including, if a
Subordinated Note, whether such Note
is intended to qualify as Tier II
Capital).
9. Redemption and/or repayment
provisions, if any.
10. If such Book-Entry Note is issued at
an original issue discount ("OID"),
the total amount of OID, the yield to
maturity and the initial accrual
period OID.
B. The Company will advise the Presenting Agent
by telecopy or other mutually acceptable method
of the name of the Bank and, if the Notes are
Senior Notes, the name of the Senior Trustee.
The Company will advise such Bank by telecopy
or other mutually acceptable method of the
information set forth in Settlement Procedure
"A" above and the name of the Presenting Agent.
C. The Company will assign a CUSIP number to
the Global Note and will notify such Bank and
the Presenting Agent by telephone of such CUSIP
number as soon as
21
practicable. Such Bank will enter a pending
deposit message through DTC's Participant
Terminal System providing the following
settlement information to DTC (which shall
route such information to Standard & Poor's
Corporation and the Presenting Agent):
1. The information set forth in
Settlement Procedure "A".
2. Identification as a Fixed Rate Note
or a Floating Rate Note.
3. Initial Interest Payment Date for
such Book-Entry Note, number of days
by which such date succeeds the
related Record Date and amount of
interest payable on such Interest
Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the Global Note
representing such Book-Entry Note.
6. Whether such Global Note will
represent any other Book-Entry Note
(to the extent known at such time).
D. To the extent the Company has not already
done so, the Company will deliver to such Bank
a Global Note in a form that has been approved
by the Company, the Agents and such Bank.
E. Such Bank will complete such Book-Entry
Note, stamp or type in the appropriate legend,
as instructed by DTC, if not already set forth
thereon, and authenticate the Global Note
representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to such
Bank's participant account at DTC.
G. Such Bank will enter a delivery order
through DTC's Same-Day Funds Settlement System
("SDFS") and Participant Terminal System
instructing DTC to (i) debit such Book-Entry
Note to such Bank's participant account and
credit such Book-Entry Note to the Presenting
Agent's participant account and (ii) debit the
Presenting Agent's settlement account and
credit such Bank's settlement account for an
amount equal to the price of such
22
Book-Entry Note less the Presenting Agent's
commission. The entry of such a deliver order
shall constitute a representation and warranty
by such Bank to DTC that (i) such Global Note
representing such Book-Entry Note has been
issued and authenticated and (ii) such Bank is
holding such Global Note pursuant to the Global
Medium-Term Note Certificate Agreement between
such Bank and DTC.
H. The Presenting Agent will enter an SDFS
deliver order through DTC's Participant
Terminal system instructing DTC (i) to debit
such Book-Entry Note to the Presenting Agent's
participant account and credit such Book-Entry
Note to the participant accounts of the
Participants with respect to such Book-Entry
Note and (ii) to debit the settlement accounts
of such Participants and credit the settlement
account of the Presenting Agent for an amount
equal to the price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
J. Such Bank will, upon receipt of funds from
the Agent in accordance with Settlement
Procedure "G", wire transfer funds available
for immediate use in the amount transferred to
such Bank in accordance with Settlement
Procedure "G" to the account of the Company
maintained at The Chase Manhattan Bank, New
York, New York.
K. The Presenting Agent will confirm the
purchase of such Book-Entry Note to the
purchaser either by transmitting to the
Participants with respect to such Book-Entry
Note a confirmation order or orders through
DTC's institutional delivery system or by
mailing a written confirmation to such
purchaser.
Settlement Procedures For orders of Book-Entry Notes solicited by any
Timetable for Dollar Agent and accepted by the Company for
Denominated Notes: settlement on the first business day after the
sale date, Settlement Procedures "A" through
"K" set forth above shall be completed as soon
as possible but not later than the respective
times (New York City time) set forth below:
23
Settlement
Procedure Time
---------- ----------------------------------
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before
settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
If a sale is to be settled more than one
business day after the sale date, Settlement
Procedures "A", "B" and "C" shall be completed
as soon as practicable but no later than 11:00
A.M. and 12:00 Noon on the first business day
after the sale date and no later than 2:00 P.M.
on the business day before the settlement date,
respectively. If the initial interest rate for
a Floating Rate Book-Entry Note has not been
determined at the time that Settlement
Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as
soon as such rate has been determined but no
later than 12:00 Noon and 2:00 P.M.,
respectively, on the business day before the
settlement date. Settlement Procedure "I" is
subject to extension in accordance with any
extension of Fedwire closing deadlines and in
the other events specified in SDFS operating
procedures in effect on the settlement date.
If settlement of a Book-Entry Note is
rescheduled or canceled, such Bank will deliver
to DTC, through DTC's Participant Terminal
System, a cancellation message to such effect
by no later than 2:00 P.M. on the business day
immediately preceding the scheduled settlement
date.
24
Settlement Procedures and Foreign Currency Notes held through Euroclear
Timetable for Foreign Currency or Clearstream accounts will follow the
Notes: settlement procedures that are applicable to
conventional eurobonds in registered form.
Foreign Currency Notes will be credited to the
securities custody accounts of Euroclear and
Clearstream participants on the business day
following the settlement date, for value on the
settlement date. They will be credited either
free of payment or against payment for value on
the settlement date.
Failure to Settle Dollar If the applicable Bank has not entered an SDFS
Denominated Notes: deliver order with respect to a Book-Entry Note
pursuant to Settlement Procedure "G", such Bank
may, upon the written request of the Company,
deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable, a
withdrawal message instructing DTC to debit
such Book-Entry Note to such Bank's participant
account. DTC will process the withdrawal
message, provided that such participant account
contains a principal amount of the Global Note
representing such Book-Entry Note that is at
least equal to the principal amount to be
debited. If a withdrawal message is processed
with respect to all the Book-Entry Notes
represented by a Global Note, such Bank will
cancel such Global Note in accordance with the
applicable Indenture and so advise the Company,
and such Bank will make appropriate entries in
its records. The CUSIP number assigned to such
Global Note shall, in accordance with CUSIP
Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message
is processed with respect to one or more, but
not all, of the Book-Entry Notes represented by
a Global Note, such Bank will exchange such
Global Note for two Global Notes, one of which
shall represent such Book-Entry Notes and shall
be canceled immediately after issuance and the
other of which shall represent the other
Book-Entry Notes previously represented by the
surrendered Global Note and shall bear the
CUSIP number of the surrendered Global Note.
If the purchase price for any Dollar
Denominated Note is not timely paid to the
Participants with respect to such Note by the
beneficial purchaser thereof (or any Person,
including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the Presenting Agent
may enter SDFS deliver orders through DTC's
Participant Terminal System reversing the
orders entered pursuant to Settlement
Procedures "H" and "G",
25
respectively. Thereafter, such Bank will
deliver the withdrawal message and take the
related actions described in the preceding
paragraph. If such failure shall have occurred
for any reason other than a default by the
Presenting Agent in the performance of its
obligations hereunder and under the Selling
Agency Agreement, then the Company will
reimburse the Presenting Agent or such Bank, as
applicable, on an equitable basis for the loss
of the use of the funds during the period when
they were credited to the account of the
Company.
Notwithstanding the foregoing, upon any failure
to settle with respect to a Dollar Denominated
Note, DTC may take any actions in accordance
with its SDFS operating procedures then in
effect. In the event of a failure to settle
with respect to one or more, but not all, of
the Book-Entry Notes to have been represented
by a Global Note, such Bank will provide, in
accordance with Settlement Procedure "E", for
the authentication and issuance of a Global
Note representing the other Book-Entry Notes to
have been represented by such Global Note and
will make appropriate entries in its records.
Failure to Settle Foreign Upon any failure to settle with respect to any
Currency Notes: Foreign Currency Note, Euroclear or Clearstream
may take any actions in accordance with its
operating procedures then in effect.
Bank Not to Risk Funds: Nothing herein shall be deemed to require any
Trustee or any Bank to risk or expend its own
funds in connection with any payment to the
Company, the applicable Depositary, the Agents
or any of the purchasers of the Notes, it being
understood by all parties that payments made by
any Bank to the Company, the applicable
Depositary, the Agents or such purchasers shall
be made only to the extent that funds are
provided to such Bank for such purpose.
Authenticity of Signatures: The Company will cause each Bank to furnish the
Agents from time to time with the specimen
signatures of such Bank's officers, employees
or agents who have been authorized by such Bank
to authenticate Book-Entry Notes, but none of
the Agents will have any obligation or
liability to the Company or such Bank in
respect of the authenticity of the signature of
any officer, employee or agent of the Company
or such Bank on any Book-Entry Note.
26
Advertising Costs: The Company will determine, after consulting
with the Agents, the amount of advertising that
may be appropriate in soliciting offers to
purchase the Book-Entry Notes. Advertising
expenses will be paid by the Company.
Periodic Statements from the Periodically, the applicable Bank will send to
Banks: the Company a statement setting forth the
principal amount of Book-Entry Notes
outstanding as of that date and setting forth a
brief description of any sales of Book-Entry
Notes of which the Company has advised such
Bank but which have not yet been settled.
PART II
Administrative Procedures for Certificated Notes
One or more Banks will serve as registrar and transfer agent (in such
capacities, the "Registrar" and "Transfer Agent", respectively) in connection
with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued
as of the date of its authentication by the
Bank acting as Registrar and Transfer Agent for
such Note. Each Certificated Note will bear an
Original Issue Date, which will be (i) with
respect to an original Certificated Note (or
any portion thereof), its original issuance
date (which will be the settlement date) and
(ii) with respect to any Certificated Note (or
portion thereof) issued subsequently upon
transfer or exchange of a Certificated Note or
in lieu of a destroyed, lost or stolen
Certificated Note, the Original Issue Date of
the predecessor Certificated Note, regardless
of the date of authentication of such
subsequently issued Certificated Note.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
27
Transfers and Exchanges: A Certificated Note may be presented for
transfer or exchange at the principal corporate
trust office in the City of New York of the
Bank acting as Registrar and Transfer Agent for
such Certificated Note or at the office of the
transfer agent in Luxembourg (in the case of
Notes listed on the Luxembourg Stock Exchange).
Certificated Notes will be exchangeable for
other Certificated Notes having identical terms
but different authorized denominations without
service charge. Certificated Notes will not be
exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date
not less than nine months after the settlement
date for such Note.
Denominations: The denomination of any Certificated Note
denominated in U.S. dollars will be a minimum
of $1,000 or any amount in excess thereof that
is an integral multiple of $1,000, or the
equivalent thereof in other currencies or
currency units. The authorized denominations of
Certificated Notes denominated in any other
currency will be specified pursuant to
"Settlement Procedures" below.
Interest: General. Interest, if any, on each Certificated
Note will accrue from the original issue date
for the first interest period or the last date
to which interest has been paid, if any, for
each subsequent interest period, and will be
calculated and paid in the manner described in
such Note and in the Prospectus, as
supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein,
each payment of interest on a Certificated Note
will include interest accrued to but excluding
the Interest Payment Date (provided that, in
the case of Floating Rate Certificated Notes
which reset daily or weekly, interest payments
will include accrued interest to and including
the Record Date immediately preceding the
Interest Payment Date) or to but excluding
Maturity (other than a Maturity of a Fixed Rate
Certificated Note occurring on the 31st day of
a month, in which case such payment of interest
will include interest accrued to but excluding
the 30th day of such month). Interest payable
at the Maturity of a Certificated Note, other
than on a day that would otherwise be an
Interest Payment Date, will be payable to the
person to whom the principal of such Note is
payable.
28
Record Dates. Unless otherwise specified in the
applicable Pricing Supplement, the Record Date
with respect to any Interest Payment Date shall
be the date fifteen calendar days immediately
preceding such Interest Payment Date.
Interest Payment Dates on Fixed Rate
Certificated Notes. Unless otherwise specified
pursuant to Settlement Procedure "A" below,
interest payments on Fixed Rate Certificated
Notes will be made semi-annually on January 15
and July 15 of each year and at Maturity;
provided, however, that, unless otherwise
specified in the applicable Pricing Supplement,
in the case of a Fixed Rate Certificated Note
issued between a Record Date and an Interest
Payment Date, the first interest payment will
be made on the Interest Payment Date following
the next succeeding Record Date.
Calculation of Interest: Fixed Rate Certificated Note. Unless otherwise
specified in the applicable Pricing Supplement,
interest on Fixed Rate Certificated Notes
(including interest for partial periods) will
be calculated on the basis of a 360-day year of
twelve 30-day months.
Floating Rate Certificated Notes. Unless
otherwise specified in the applicable Pricing
Supplement, interest rates on Floating Rate
Certificated Notes will be determined as set
forth in the form of Notes. Interest on
Floating Rate Certificated Notes, except as
otherwise set forth therein, will be calculated
on the basis of actual days elapsed and a year
of 360 days, except that in the case of a
Floating Rate Certificated Note for which the
interest rate basis is the Treasury Rate,
interest will be calculated on the basis of the
actual number of days in the year.
If any Interest Payment Date for or the
Maturity of a Certificated Note is not a
business day, the payment due on such day shall
be made on the next succeeding business day and
no interest shall accrue on such payment for
the period from and after such Interest Payment
Date or Maturity, as the case may be.
Withholding Taxes: Such Bank will be
responsible for withholding taxes on interest
paid on Certificated Notes as required by
applicable law.
Procedure for Rate Setting and The Company and the Agents will discuss from
Posting: time to time the aggregate principal amount of,
the issuance price
29
Posting: of, and the interest rates to be borne by,
Notes that may be sold as a result of the
solicitation of orders by the Agents. If the
Company decides to set prices of, and rates
borne by, any Notes in respect of which the
Agents are to solicit orders (the setting of
such prices and rates to be referred to herein
as "posting") or if the Company decides to
change prices or rates previously posted by it,
it will promptly advise the Agents of the
prices and rates to be posted.
Acceptance and Rejection of Unless otherwise instructed by the Company,
Orders: each Agent will advise the Company promptly by
telephone of all orders to purchase
Certificated Notes received by such Agent,
other than those rejected by it in whole or in
part in the reasonable exercise of its
discretion. Unless otherwise agreed by the
Company and the Agents, the Company has the
sole right to accept orders to purchase
Certificated Notes and may reject any such
orders in whole or in part.
Preparation of Pricing If any order to purchase a Certificated Note is
Supplement: accepted by or on behalf of the Company, the
Company will prepare a Pricing Supplement
reflecting the terms of such Certificated Note
and will arrange to have a copy thereof filed
with the Commission's XXXXX system in
accordance with the applicable paragraph of
Rule 424(b) under the Act and will supply at
least two copies thereof (and additional copies
if requested) to the Presenting Agent. One copy
of such filed document shall be sent by email,
telecopy or overnight express (for delivery not
later than 11:00 A.M. on the second business
day next following the sale date and, in any
case, not prior to the filing date) to the
Presenting Agent at the following applicable
addresses:
Xxxxxx Brothers Inc.:
c/o ADP Prospectus Services
on behalf of Xxxxxx Brothers Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Client Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
30
ABN AMRO Incorporated:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Banc of America Securities LLC:
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Rock Fu
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxx Xxxxx
Xxxx of America Securities LLC
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Barclays Capital Inc.:
c/o ADP Prospectus
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Client Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Bear, Xxxxxxx & Co. Inc.:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
31
BNP Paribas Securities Corp.:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Citigroup Global Markets Inc.:
Brooklyn Army Terminal
000 00xx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Credit Suisse First Boston LLC:
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Deutsche Bank Securities Inc.:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Debt Capital Markets
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx, Xxxxx & Co.:
00 Xxxxx Xx.
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
32
HSBC Securities (USA) Inc.:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium Term Notes Desk
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
HSBC Securities (USA) Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
X.X. Xxxxxx Securities Inc.:
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Transaction Execution Group
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated:
c/o ADP Prospectus
Distribution Services
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxx Xxxxxxx & Co. Incorporated:
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, New York 10036
Attention: Medium-Term Note Trading Desk
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
33
UBS Securities LLC:
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Fixed Income Syndicate
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Wachovia Capital Markets, LLC:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0602
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
For record keeping purposes, one copy of each
Pricing Supplement shall be mailed to the
Presenting Agent at the following applicable
addresses:
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium-Term Note Desk
Telecopy: (000) 000-0000
ABN AMRO Incorporated:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
34
Banc of America Securities LLC:
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Rock Fu
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxx Xxxxx
Xxxx of America Securities LLC
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MTN Trading
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Bear, Xxxxxxx & Co. Inc.:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
BNP Paribas Securities Corp.:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
35
Citigroup Global Markets Inc.
Brooklyn Army Terminal
000 00xx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Short and Medium-Term Finance
Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Debt Capital Markets
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
36
HSBC Securities (USA) Inc.:
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
X.X. Xxxxxx Securities Inc.:
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Transaction Execution Group
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated:
4 World Financial Center, 4th Floor
New York, New York 10080
Attention: Global Transaction Management Group
- Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxx Xxxxxxx & Co. Incorporated:
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, New York 10036
Attention: Medium-Term Note Trading Desk
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
UBS Securities LLC:
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Fixed Income Syndicate
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
37
Wachovia Capital Markets, LLC:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0602
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Presenting Agent will cause a Prospectus
and Pricing Supplement to be delivered to the
purchaser of such Book-Entry Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to
their use. Outdated Pricing Supplements (other
than those retained for files) will be
destroyed.
Suspension of Solicitation; Subject to the Company's representations,
Amendment or Supplement: warranties and covenants contained in the
Selling Agency Agreement, the Company may
instruct the Agents to suspend at any time, for
any period of time or permanently, the
solicitation of orders to purchase Book-Entry
Notes. Upon receipt of such instructions, the
Agents will forthwith suspend solicitation
until such time as the Company has advised them
that such solicitation may be resumed.
In the event that at the time the Company
suspends solicitation of the purchases there
shall be any orders outstanding for settlement,
the Company will promptly advise the Agents and
the applicable Banks whether such orders may be
settled and whether copies of the Prospectus as
in effect at the time of suspension, together
with the appropriate Pricing Supplement, may be
delivered in connection with the settlement of
such orders. The Company will have the sole
responsibility for such decision and for any
arrangements that may be made in the event that
the Company determines that such orders may not
be settled or that copies of such Prospectus
and Pricing Supplement may not be so delivered.
If the Company decides to amend or supplement
the registration statement relating to the
registration of the Notes with the Commission
or the Prospectus or decides to file any
further registration statements for the purpose
of registering additional Notes and in
connection with which the Selling Agency
Agreement is included or incorporated by
reference as an exhibit, it will promptly
advise the
38
Agents and furnish the Agents with
the proposed amendment or supplement or
registration statement and with such
certificates and opinions as are required, all
to the extent required by and in accordance
with the terms of the Selling Agency Agreement.
Subject to the provisions of the Selling Agency
Agreement, the Company may file with the
Commission any such supplement to the
Prospectus relating to the Notes. The Company
will provide the Agents, each Trustee and each
Bank with copies of any such supplement, and
confirm to the Agents that such supplement has
been filed with the Commission pursuant to the
applicable paragraph of Rule 424(b).
Procedures For Rate Changes: When the Company has determined to change the
interest rates of Book-Entry Notes being
offered, it will promptly advise the Agents and
the Agents will forthwith suspend solicitation
of orders. The Agents will telephone the
Company with recommendations as to the changed
interest rates. At such time as the Company has
advised the Agents of the new interest rates,
the Agents may resume solicitation of orders.
Until such time only "indications of interest"
may be recorded. On or prior to the last day on
which a Pricing Supplement is required to be
filed pursuant to the Act and the Rules and
Regulations, the Company will file with the
Commission a Pricing Supplement to the
Prospectus relating to such Book-Entry Notes
that reflects the applicable interest rates and
other terms and will deliver copies of such
Pricing Supplement to the applicable Agent.
Delivery of Prospectus: A copy of the Prospectus and a Pricing
Supplement relating to a Book-Entry Note must
accompany or precede the earliest of any
written offer of such Book-Entry Note,
confirmation of the purchase of such Book-Entry
Note or payment for such Book-Entry Note by its
purchaser. If notice of a change in the terms
of the Book-Entry Notes is received by the
Agents between the time an order for a
Book-Entry Note is placed and the time written
confirmation thereof is sent by the Presenting
Agent to a customer or his agent, such
confirmation shall be accompanied by a
Prospectus and Pricing Supplement setting forth
the terms in effect when the order was placed.
Subject to "Suspension of Solicitation;
Amendment or Supplement" above, the Presenting
Agent will deliver a Prospectus and Pricing
Supplement as herein described with respect to
each Book-Entry Note sold by it. The Company
will make such delivery if such Book-Entry Note
is sold directly by the Company to a purchaser
(other than
39
an Agent).
Confirmation: For each order to purchase a Book-Entry Note
solicited by any Agent and accepted by or on
behalf of the Company, the Presenting Agent
will issue a confirmation to the purchaser,
with a copy to the Company, setting forth the
details set forth above and delivery and
payment instructions.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry
Note and the authentication and issuance of the
Global Note representing such Book-Entry Note
shall constitute "settlement" with respect to
such Book-Entry Note. All orders accepted by
the Company will be settled on the third
business day following the date of sale of such
Book-Entry Note pursuant to the timetable for
settlement set forth below unless the Company,
the applicable Bank and the purchaser agree to
settlement on another day which shall be no
earlier than the next business day following
the date of sale.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note sold by the Company through
any Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Company
by telephone of, and confirm in writing, the
following settlement information:
1. Name in which such Certificated Note
is to be registered ("Registered
Owner").
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
40
6. In the case of a Fixed Rate
Certificated Note, the interest rate
or, in the case of a Floating Rate
Certificated Note, interest rate
basis (including, if LIBOR, the
method for determining LIBOR), the
initial interest rate (if known at
such time), Index Maturity, Interest
Reset Period and Interest Reset Dates
(if any), Spread or Spread Multiplier
(if any), minimum interest rate (if
any) and maximum interest rate (if
any).
7. Interest Payment Dates and the
Interest Payment Period.
8. Specified Currency and whether the
option to elect payment in a
Specified Currency applies and if the
Specified Currency is not U.S.
dollars, the authorized
denominations.
9. Settlement date.
10. Price (including currency).
11. Presenting Agent's commission,
determined as provided in Section 2
of the Selling Agency Agreement.
12. Priority (including, if a
Subordinated Note, whether such Note
is intended to qualify as Tier II
Capital).
13. Redemption and/or repayment
provisions, if any.
14. If such Certificated Note is issued
at an original issue discount
("OID"), the total amount of OID, the
yield to maturity and the initial
accrual period OID.
B. The Company will advise the Presenting Agent
by telecopy or other mutually acceptable method
of the name of the Bank. The Company will
advise such Bank by telecopy or other mutually
acceptable method or electronic transmission of
the information set forth in Settlement
Procedure "A" above and the name of the
Presenting Agent.
41
C. The Company will deliver to such Bank a
pre-printed four-ply packet for such
Certificated Note, which packet will
contain the following documents in forms
that have been approved by the Company,
the Agents and such Bank:
1. Certificated Note with customer
confirmation.
2. Stub One - For such Bank.
3. Stub Two - For Agent.
4. Stub Three - For the Company.
D. Such Bank will complete such
Certificated Note and will authenticate,
or cause to be authenticated, such
Certificated Note and deliver it (with the
confirmation) and Stubs One and Two to the
Presenting Agent at the following
applicable addresses:
Xxxxxx Brothers Inc.:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium-Term Note Desk
Telecopy: (000) 000-0000
ABN AMRO Incorporated:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
42
Banc of America Securities LLC:
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Rock Fu
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxx Xxxxx
Xxxx of America Securities LLC
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Barclays Capital Inc.:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MTN Trading
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Bear, Xxxxxxx & Co. Inc.:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
BNP Paribas Securities Corp.:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
43
Citigroup Global Markets Inc.:
Brooklyn Army Terminal
000 00xx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Short and Medium-Term
Finance Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to
Xxxxxx Xxxxxxx
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Debt Capital Markets
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
44
HSBC Securities (USA) Inc.:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium Term Notes Desk
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
HSBC Securities (USA) Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
X.X. Xxxxxx Securities Inc.
00 Xxxxxxxx Xxxxx
Xxxxxx Xxxx Xxxxxxxx
0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxxxx Xxxxxxxxx or Xxxxx Xxxxxxxx
Telephone: (000) 000-0000/8668
Telecopy: (000) 000-0000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated:
Xxxxxxx Xxxxx Money Markets Clearance
00 Xxxxx Xxxxxx
3rd Floor Plaza Level
DTC New York Window
New York, New York 10041
Attention: Moma Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxx Xxxxxxx & Co. Incorporated:
Bank of New York Dealer Clearance Department
0 Xxxx Xxxxxx
0xx Xxxxx, Xxxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: For the Account of
Xxxxxx Xxxxxxx & Co. Incorporated
45
UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Fixed Income Syndicate
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Wachovia Capital Markets, LLC:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0602
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Presenting Agent will acknowledge
receipt of the Note by stamping or
otherwise marking Stub One and returning
it to the such Bank. Such delivery will be
made only against such acknowledgment of
receipt and evidence that instructions
have been given by the Presenting Agent
for payment to the account of the Company
at The Chase Manhattan Bank, New York, New
York, in funds available for immediate
use, of an amount equal to the price of
such Certificated Note less the Presenting
Agent's commission. In the event that the
instructions given by the Presenting Agent
for payment to the account of the Company
are revoked, the Company will as promptly
as possible wire transfer to the account
of the Presenting Agent an amount of
immediately available funds equal to the
amount of such payment.
E. The Presenting Agent will deliver such
Certificated Note (with the confirmation)
to the customer against payment in
immediately payable funds. The Presenting
Agent will obtain the acknowledgment of
receipt of such Certificated Note by
retaining Stub Two.
F. Such Bank will send Stub Three to the
Company by first-class mail.
Settlement Procedures For orders of Certificated Notes solicited
Timetable: by any Agent, as agent, and accepted by
the Company, Settlement Procedures "A"
through "F" set forth above shall be
completed on or before the respective
times (New York City time) set forth
below:
46
Settlement
Procedure Time
---------- ----
A 2:00 P.M. on the day before settlement
B-C 3:00 P.M. on the day before settlement
D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of
and make payment for any Certificated
Note, the Presenting Agent will notify the
Company and the applicable Bank by
telephone and return such Certificated
Note to such Bank. Upon receipt of such
notice, the Company will immediately wire
transfer to the account of the Presenting
Agent an amount equal to the amount
previously credited to the account of
Company in respect of such Certificated
Note. Such wire transfer will be made on
the settlement date, if possible, and in
any event not later than the business day
following the settlement date. If the
failure shall have occurred for any reason
other than a default by the Presenting
Agent in the performance of its
obligations hereunder and under the
Selling Agency Agreement, then the Company
will reimburse the Presenting Agent or
such Bank, as appropriate, on an equitable
basis for its loss of the use of the funds
during the period when they were credited
to the account of the Company. Immediately
upon receipt of the Certificated Note in
respect of which such failure occurred,
such Bank will cancel such Certificated
Note in accordance with the applicable
Indenture and so advise the Company, and
such Bank will make appropriate entries in
its records.
Bank Not to Risk Funds: Nothing herein shall be deemed to require
any Trustee or any Bank to risk or expend
its own funds in connection with any
payment to the Company, the Agents or any
of the purchasers of the Certificated
Notes, it being understood by all parties
that payments made by any Bank to the
Company, the Agents or such purchasers
shall be made only to the extent that
funds are provided to such Bank for such
purpose.
Authenticity of Signatures: The Company will cause each Bank to
furnish the Agents from time to time with
the specimen signatures of each of
47
such Bank's officers, employees or agents
who has been authorized by such Bank to
authenticate Certificated Notes, but none
of the Agents will have any obligation or
liability to the Company or such Bank in
respect of the authenticity of the
signature of any officer, employee or
agent of the Company or such Bank on any
Certificated Note.
Advertising Costs: The Company will determine, after
consulting with the Agents, the amount of
advertising that may be appropriate in
soliciting offers to purchase the
Certificated Notes. Advertising expenses
will be paid by the Company.
Periodic Statements from the Periodically, the appropriate Bank will
Banks: send to the Company a statement setting
forth the principal amount of Certificated
Notes outstanding as of that date and
setting forth a brief description of any
sales of Certificated Notes which the
Company has advised such Bank but which
have not yet been settled.
SCHEDULE I to
ADMINISTRATIVE PROCEDURES
Schedule of Indentures
Senior Indenture
Indenture, dated as of _______, 2004, between CIT Group Inc., a Delaware
corporation and X.X. Xxxxxx Trust Company, National Association, as
Trustee.
Subordinated Indenture
Indenture, dated as of _______, 2004, between CIT Group Inc., a Delaware
corporation and X.X. Xxxxxx Trust Company, National Association, as
Trustee.
SCHEDULE II to
ADMINISTRATIVE PROCEDURES
Schedule of Banks
Each of the Trustees listed on Schedule I to Administrative Procedures (which,
initially, shall be X.X. Xxxxxx Trust Company, National Association) together
with any Trustee added to such Schedule after the date hereof.
EXHIBIT B
CIT Group Inc.
Global Medium-Term Notes
Due 9 Months or More from Date of Issue
TERMS AGREEMENT
________ __, 20__
CIT Group Inc.
0 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: ________
Subject in all respects to the terms and conditions of the Global Selling
Agency Agreement dated _______, 2004, among Xxxxxx Brothers Inc., ABN AMRO
Incorporated, Banc of America Securities LLC, Barclays Capital Inc., Bear,
Xxxxxxx & Co. Inc., BNP Paribas Securities Corp., Citigroup Global Markets Inc.,
Credit Suisse First Boston LLC, Deutsche Bank Securities Inc., Xxxxxxx, Xxxxx &
Co., HSBC Securities (USA) Inc., X.X. Xxxxxx Securities Inc., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated, UBS
Securities LLC and Wachovia Capital Markets, LLC (individually, an "Agent", and
collectively, the "Agents") and you (the "Agreement"), the undersigned agrees to
purchase the following Notes of CIT Group Inc.:
Aggregate Principal Amount:
Currency or Currency Unit:
Interest Rate or Method of Determining:
Date of Maturity:
Interest Payment Dates:
3
Regular Record Dates:
Purchase Price: ________% of Principal Amount [plus accrued interest from
________, 20__]
Issue Price:
Closing Date:
Trustee, Authenticating and Paying Agent:
Method of Payment:
Modification, if any, in the
requirements to deliver the
documents specified in Sections
4(c), (d) or (f) of the Agreement:
Other terms:
[If any Agent or Agents default in their obligations to purchase the Notes
agreed to be purchased by such Agent or Agents hereunder and the aggregate
principal amount of Notes which such defaulting Agent or Agents agreed but
failed to purchase does not exceed 10% of the total principal amount of Notes,
the Agents may make arrangements satisfactory to the Issuer for the purchase of
such Notes by other persons, including any of the Agents, but if no such
arrangements are made by the Closing Date, the nondefaulting Agents shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Notes which such defaulting Agents agreed but failed to purchase.
If any Agent or Agents so default and the aggregate principal amount of Notes
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of Notes and arrangements satisfactory to the Agents and the
Issuer for the purchase of such Notes by other persons are not made within 36
hours after such default, this Terms Agreement will terminate without liability
on the part of any nondefaulting Agent or the Issuer, except that the Issuer
will continue to be liable for the payment of expenses to the extent set forth
in Section 3(f) of the Agreement. As used in this Terms Agreement, the term
"Underwriter" includes any person substituted for an Agent under this Section.
Nothing herein will relieve a defaulting Agent from liability for its default.]
Listing:
[Name of Agent or Agents]
BY: ]
-----------------
4
[Name of Agent or Agents]
BY: ]
-----------------
Accepted:
CIT Group Inc.
BY:
--------------------------
Title:
-------------------
EXHIBIT C
TERM SHEET AND AGREEMENT
To the Agent: Unless otherwise indicated below an opinion of counsel to the
Issuer and a certificate of the principal financial officer of the Issuer, as
contemplated by Sections 4(d) and 4(f) of the Global Selling Agency Agreement
referred to below, will be provided to you. A comfort letter from the Company's
independent registered public accounting firm, as contemplated by Section 4(c)
of the Agreement, will not be provided to you, unless otherwise indicated below.
The Trustee shall be designated by the Company from the list of Trustees
authorized to act under the Registration Statements relating to the Notes.
Type of offering: [_] Fixed Rate Notes [_] Floating Rate Notes
(check all that apply) [_] Senior Notes [_] Subordinated Notes
Aggregate Principal Amount: Proceeds to Issuer:
Underwriting Discount: Issue Price:
Maturity Date: Settlement Date:
Trade (Acceptance) Date: Currency or Currency
Unit of Denomination:
Interest Rate or
Interest Rate Basis: Interest Payment Dates:
Spread or Spread Multiplier, if any: Method of Payment:
Opinion of Counsel Certificate of Principal Financial
to the Issuer not required: [_] Officer of the Issuer not required: [_]
Comfort Letter from the Company's
independent registered public accounting
firm required: [_] "Due diligence" call requested: [_] Yes [_] No
To be listed on an Exchange? [_] Yes [_] No Name of Exchange, if applicable:
Additional Terms, if any:
(attach additional pages, if necessary)
Subject in all respects to the terms and conditions of the Global Selling Agency
Agreement dated _______, 2004, among Xxxxxx Brothers Inc., ABN AMRO
Incorporated, Banc of America Securities LLC, Barclays Capital Inc., Bear,
Xxxxxxx & Co. Inc., BNP Paribas Securities Corp., Citigroup Global Markets Inc.,
Credit Suisse First Boston LLC, Deutsche Bank Securities Inc., Xxxxxxx, Xxxxx &
Co., HSBC Securities (USA) Inc., X.X. Xxxxxx Securities Inc., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated, UBS
Securities LLC and Wachovia Capital Markets, LLC (individually an "Agent", and
collectively, the "Agents") and CIT Group Inc. (the "Agreement") the undersigned
Agent or Agents agree to purchase the aforesaid Notes and each of the
undersigned agrees to and accepts the terms set forth above, and acknowledges
that this document shall constitute a Terms Agreement.
[NAME OF AGENT OR AGENTS] CIT GROUP INC.
(Name of Issuer)
By: By:
----------------------------------- ----------------------------------
Name: Name:
Title: Title:
[NAME OF AGENT OR AGENTS]
By:
-----------------------------------
Name:
Title:
Administrative Procedures
Table of Contents
Page
----
1. Representations and Warranties of the Company.............................3
2. Solicitations by the Agent of Offers to Purchase; Purchases as
Principal; Additional Agents...........................................4
3. Covenants of the Company..................................................7
4. Conditions of the Obligations of the Agents..............................11
5. Indemnification and Contribution.........................................15
6. Position of the Agent....................................................18
7. Termination..............................................................18
8. Representations, Warranties, Agreements, Indemnities and Other
Statements to Survive.................................................19
9. Notices..................................................................19
10. Successors...............................................................22
11. Governing Law; Counterparts..............................................22
-i-
