Exhibit 99.4
FORM OF TYCO VE AGREEMENT
1. FOR VALUE RECEIVED, Tyco International Ltd. ("TYCO") irrevocably covenants
and agrees with Tyco Acquisition Corp. XIX (NV) ("CIT HOLDINGS"), CIT
Exchangeco Inc. ("EXCHANGECO") and Montreal Trust Company of Canada (the
"TRUSTEE") that each and every:
(a) representation and warranty of CIT Holdings contained in that
certain voting and exchange trust agreement made as of November 15,
1999 among Exchangeco, The CIT Group, Inc. ("CIT") and the Trustee
(the "VETA") as supplemented by agreement in writing made as of the
date hereof among CIT Holdings, CIT, Exchangeco and the Trustee (the
"SUPPLEMENTAL VETA"):
(i) contains no untrue statement; and
(ii) does not omit to state a fact that is required to be stated or
that is necessary to make such representation or warranty not
misleading in the light of the circumstances; and
(b) covenant, agreement or other obligation of CIT Holdings contained in
the VETA shall be fully performed in the manner and at the time
required for payment or performance thereof.
2. Tyco acknowledges and agrees that:
(a) its obligations hereunder are full and unconditional; and
(b) no release or extinguishment of the obligations or liabilities of
CIT Holdings (other than in accordance with the terms of the VETA),
whether by decree in any bankruptcy proceeding or otherwise, shall
affect the continuing validity and enforceability of this Agreement,
as well as any provision requiring or contemplating performance by
Tyco.
3. Tyco hereby waives, for the benefit of CIT Holdings, Exchangeco and the
Trustee:
(a) any right to require Exchangeco or the Trustee, as a condition of
payment or performance by Tyco, to proceed against CIT Holdings or
pursue any other remedy whatsoever; and
(b) to the fullest extent permitted by law, any defences or benefits
that may be derived from or afforded by law which limit the
liability of or exonerate sureties, except to the extent that any
such defence is available to CIT Holdings.
4. Without limiting in any way the foregoing, Tyco covenants and agrees to
take all action to enable CIT Holdings to adhere to each of the provisions
of the VETA and the Supplemental VETA which requires an act or omission on
the part of Tyco or any of its subsidiaries to enable CIT Holdings to
comply with its obligations under the VETA and the Supplemental VETA.
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5. The provisions of Articles 1 and 12 and Sections 14.1, 14.2, 14.3, 14.6
and 14.7 of the VETA are incorporated herein, MUTATIS MUTANDIS, except
that notices and other communications hereunder to Tyco shall be delivered
to:
Tyco International Ltd.
The Zurich Centre, Second Floor
90 Xxxxx Bay Road
Pembroke, HM08
Bermuda
Attention: Chief Corporate Counsel
Fax: (441) 295 - 9647
Confirm No.: (441) 292 - 8674
with a copy (which shall not constitute notice) to:
XxXxxxxx Xxxxx
Xxxxx 0000
Xxxxx Xxxxx, Xxxxx Bank Plaza
Toronto, Ontario
M5J 2J7 Canada
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
6. Tyco understands that CIT Holdings, Exchangeco and the Trustee are relying
on this Agreement in entering into the Supplemental VETA and may enforce
this Agreement as if Tyco were a party thereto.
7. Notwithstanding the date of execution and delivery of this Agreement, it
shall only come into force and become effective as of the Effective Time
as defined in Section 1.02 of the agreement and plan of merger made as of
March 12, 2001 between CIT Holdings and CIT (the "TYCO PLAN OF MERGER").
If the Tyco Plan of Merger is terminated and the transactions contemplated
herein have been abandoned pursuant to Section 7.01 of the Tyco Plan of
Merger, then this Agreement shall be terminated and shall be of no further
force and effect.
Tyco has executed this Agreement as of the ___ day of _____, 2001.
TYCO INTERNATIONAL LTD.
By:
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Name:
Title:
TVCO SUPPORT AGREEMENT
