THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE
Third Supplemental Indenture (this “Supplemental Indenture”), dated as of
October 1, 2009, among CIT Group Inc., a Delaware corporation (the “Issuer”), the entities listed
on Schedule A hereto (collectively, the “Guarantors”), and The Bank of New York Mellon (as
successor to XX Xxxxxx Xxxxx Bank, N.A.), as trustee under the Indenture referred to below (the
“Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer has heretofore executed and delivered to the Trustee an indenture, dated
as of January 20, 2006 (as supplemented by the first supplemental indenture, dated as of February
13, 2007 and the second supplemental indenture, dated as of October 23, 2007) (as so supplemented,
the “Indenture”), providing for the issuance of certain of the Issuer’s outstanding notes with
maturities on or prior to December 15, 2017 and the Issuer’s 5.80% Senior Notes due October 1,
2036;
WHEREAS, the Indenture provides that under certain circumstances the Issuer may execute and
deliver to the Trustee a supplemental indenture;
WHEREAS, pursuant to Section 9.1 of the Indenture, which does not require the consent of the
Holders, the Guarantors desire to enter into this Supplemental Indenture pursuant to which the
Guarantors shall fully and unconditionally guarantee all of the Issuer’s obligations under the
Indenture and all the notes with maturities on or prior to December 15, 2017 that were issued prior
to September 30, 2009 and all of the 5.80% Senior Notes due October 1, 2036 that, in each case, are
outstanding as of such date (the “Guaranteed Notes”) pursuant to the Indenture on the terms and
conditions set forth herein (and not any other series of notes);
WHEREAS, the Guarantors’ obligations under the guarantees of the Guaranteed Notes will be
subordinated to their respective senior indebtedness; and
WHEREAS, pursuant to Section 9.3 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Issuer, the
Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the
Holders of the Guaranteed Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture, except as set forth below:
(a) “Guarantee” means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including, without
limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements
in respect thereof, of all or any part of any indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
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goods, securities or services, to take or pay or to maintain financial statement conditions or
otherwise).
(b) “Note Guarantee” means the Guarantee by each Guarantor of the Issuer’s obligations under
this Supplemental Indenture and the Guaranteed Notes, executed pursuant to the provisions of this
Supplemental Indenture.
(c) “Senior Indebtedness” means, with respect to the Guaranteed Notes or any Note Guarantee,
all Indebtedness of the Guarantor outstanding at any time, except (a) the Guaranteed Notes, (b)
Indebtedness as to which, by the terms of the instrument creating or evidencing the same, it is
provided that such Indebtedness is subordinated to the Guaranteed Notes, or ranks pari passu with
the Guaranteed Notes that are subordinated to the Guaranteed Notes, (c) Indebtedness of the
Guarantor to an Affiliate of the Guarantor, (d) interest accruing after the filing of a petition
initiating any proceeding relating to the Guarantor referred to in Section 5.1(6) and (7) unless
such interest is an allowed claim enforceable against the Guarantor in a proceeding under federal
or state bankruptcy laws, (e) trade accounts payable, (f) any Indebtedness issued in violation of
the instrument creating the same and (g) any guarantee of any Indebtedness. The term
“Indebtedness,” when used in the definition of the term “Senior Indebtedness,” means all
obligations which, in accordance with generally accepted accounting principles, should be
classified as liabilities on a balance sheet.
2. Guarantee. The Indenture as it relates to the Guaranteed Notes only is hereby amended to
add Article Sixteen as follows:
ARTICLE SIXTEEN
NOTE GUARANTEES
Section 16.01. Guarantee
(a) Subject to this Article Sixteen, each of the Guarantors hereby, as primary obligor and
not merely as surety, jointly and severally, fully and unconditionally guarantees to each Holder
of the Guaranteed Notes authenticated and delivered by the Trustee and to the Trustee and
its successors and assigns, irrespective of the validity and enforceability of this Indenture, the
Guaranteed Notes or the obligations of the Issuer hereunder or thereunder, that:
| (1) | the principal of, premium, if any, and interest on, the Guaranteed Notes will be promptly paid in full when due, whether at Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest on the Guaranteed Notes, if any, if lawful, and all other monetary obligations of the Issuer to the Holders or the Trustee hereunder whether for payment of principal of or interest on the Guaranteed Notes, expenses, indemnification or otherwise, or thereunder will be punctually paid in full, all in accordance with the terms hereof and thereof; and |
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| (2) | in case of any extension of time of payment or renewal of any Guaranteed Notes or any of such other obligations, that same will be punctually paid in full when due in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. |
Notwithstanding any other provision of this Indenture, the maximum aggregate liability of each
Guarantor under this Note Guarantee shall not exceed fifty thousand United States dollars (U.S.
$50,000) (the “Guaranteed Amount”).
Failing payment when due of any amount so guaranteed for whatever reason, the Guarantors will
be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is
a guarantee of payment and not a guarantee of collection.
Each Guarantor, pursuant to its Note Guarantee, also hereby agrees to pay any and all
reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by the
Trustee or the Holders in enforcing any rights under its Note Guarantee.
(b) The Guarantors hereby agree that (to the fullest extent permitted by law) their
obligations hereunder are unconditional, irrespective of the validity, regularity or
enforceability of the Guaranteed Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Guaranteed Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to
enforce the same or any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each Guarantor hereby waives (to the fullest extent
permitted by law) diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against
the Issuer, protest, notice and all demands whatsoever and covenants (except as otherwise provided
in Section 16.04 hereof) that the Note Guarantee will not be discharged except by complete
performance of the monetary obligations contained in the Guaranteed Notes and this
Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the
Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to either the Issuer or the Guarantors, any amount paid by either to the Trustee or such
Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full
force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in full of
all obligations guaranteed hereby. Each Guarantor further agrees (to the fullest extent permitted
by law) that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the
other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided
in Article Five of this Indenture for the purposes of the Note Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as
provided in Article Five of this Indenture, such obligations (whether or not due and payable) will
forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The
Guarantors will have the right to
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seek contribution from the Issuer or any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Note Guarantee.
Section 16.02. Limitation on Guarantor Liability
Each Guarantor, and by its acceptance of Guaranteed Notes, each Holder, hereby confirms that
it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a
fraudulent transfer or fraudulent conveyance for purposes of United States Bankruptcy Code as then
in effect, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the
foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of such Guarantor will be limited to the maximum amount that will, after giving effect
to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are
relevant under such laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article Sixteen, result in the obligations of such
Guarantor under its Note Guarantee not constituting a fraudulent transfer or fraudulent conveyance
under applicable law. Each Guarantor acknowledges that it will receive direct and indirect
benefits from the arrangements contemplated by the Supplemental Indenture and that its Note
Guarantee, and the waiver set forth in Section 16.01(b), are knowingly made in contemplation of
such benefits.
Section 16.03. Delivery of Note Guarantee
Neither the Issuer nor any Guarantor shall be required to make a notation on the Guaranteed
Notes to reflect any Note Guarantee or any such release, termination or discharge thereof.
Section 16.04. Releases
The Note Guarantee of a Guarantor will be released:
| (1) | in connection with any sale or other disposition of all or substantially all of the assets of that Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Issuer or any of its Subsidiaries; | ||
| (2) | in connection with any sale or other disposition of all of the capital stock of that Guarantor to a Person that is not (either before or after giving effect to such transaction) the Issuer or any of its Subsidiaries; and | ||
| (3) | upon defeasance of the Guaranteed Notes in accordance with Article Four of this Indenture or satisfaction and discharge of this Indenture in accordance with its terms, each Guarantor will be released and relieved of any obligations under its Note Guarantee. |
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Upon any such occurrence specified in this Section 16.04, the Trustee will execute any
documents reasonably required in order to evidence the release of any Guarantor from its
obligations under its Note Guarantee.
Any Guarantor not released from its obligations under its Note Guarantee as provided in this
Section 16.04 will remain liable for the principal, if any, of and interest and premium on the
Guaranteed Notes and for the other obligations of any Guarantor up to the Guaranteed Amount under
this Indenture as provided in this Article Sixteen.
3. Subordination. The Indenture as it relates to the Guaranteed Notes only is hereby amended
to add Article Seventeen as follows:
ARTICLE SEVENTEEN
SUBORDINATION OF SECURITIES
Section 17.01 Agreement to Subordinate.
Each Guarantor, for itself, its successors and assigns, covenants and agrees, and each Holder
of Guaranteed Notes issued under this Indenture and any indenture supplemental thereto by
such Holder’s acceptance thereof likewise covenants and agrees, that all Guaranteed Notes issued
pursuant to this Indenture shall be subject to the provisions of this Article Seventeen; and each
Holder of a Guaranteed Note, whether upon original issue or upon transfer or assignment
thereof, accepts and agrees to be bound by such provisions.
The payment by each Guarantor of the Note Guarantees on all Guaranteed Notes issued
under this Indenture shall, to the extent and in the manner hereinafter set forth, be subordinate
in right of payment to the prior payment in full of all such Guarantor’s obligations with respect
to the Senior Indebtedness with respect to such series, whether outstanding at the date of this
Indenture or thereafter incurred.
Section 17.02 Default on Senior Indebtedness.
In the event and during the continuation of any default by the Guarantor in the payment of
principal, premium, interest or any other amount due on any Senior Indebtedness, or in the event
that the maturity of any Senior Indebtedness has been accelerated because of a default, then, in
either case, no payment shall be made by any Guarantor with respect to the Note Guarantee on the
Guaranteed Notes until such Guarantor’s obligations with respect to the Senior
Indebtedness are paid in full.
In the event that, notwithstanding the foregoing, any payment shall be received by the Trustee
when such payment is prohibited by the preceding paragraph of this Section 17.02, such payment
shall be held in trust for the benefit of, and shall be paid over or delivered to, the Holders of
such Senior Indebtedness or their respective representatives, or to the trustee or trustees under
any indenture or agreement pursuant to which any of such Senior Indebtedness may have been issued,
as their respective interests may appear, but only to the extent that the
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Holders of such Senior Indebtedness (or their
representative or representatives or a trustee)
notify the Trustee in writing within 120 days of such
payment of the amounts then due and owing on
such Senior Indebtedness and only the amounts specified in such notice to the Trustee shall be paid
to the Holders of such Senior Indebtedness.
Section 17.03 Liquidation; Dissolution; Bankruptcy.
Upon any payment by any Guarantor or distribution of assets of any Guarantor of any kind or
character, whether in cash, property or securities, to creditors upon any dissolution, winding-up,
liquidation or reorganization of any Guarantor, whether voluntary or involuntary, or in bankruptcy,
insolvency, receivership or other proceedings, all amounts due upon all Senior Indebtedness shall
first be paid in full, payment thereof shall have been provided for in money in accordance with its
terms or the Guaranteed Amount shall have been delivered to the Trustee pursuant to the following
paragraph, before any payment is made by such Guarantor on account of any Note Guarantee on the
Guaranteed Notes; and upon any such dissolution, winding-up, liquidation or
reorganization, or in any such bankruptcy, insolvency, receivership or other proceeding, any
payment by any Guarantor, or distribution of assets of any Guarantor of any kind or character,
whether in cash, property or securities, which the Holders of the Guaranteed Notes or the
Trustee would be entitled to receive from such Guarantor, except for the provisions of this Article
Seventeen, shall be paid by such Guarantor or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution to the extent not already paid
(including to the Trustee pursuant to the following paragraph), or by the Holders of the
Guaranteed Notes or by the Trustee under this Indenture if received by them or it,
directly to the Holders of such Senior Indebtedness (pro rata to such Holders on the basis of the
respective amounts of such Senior Indebtedness held by such Holders, as calculated by the
Guarantor) or their representative or representatives, or to the trustee or trustees under any
indenture or agreement pursuant to which any instruments evidencing such Senior Indebtedness may
have been issued, as their respective interests may appear, to the extent necessary to pay such
Senior Indebtedness in full, in money or money’s worth, after giving effect to any concurrent
payment or distribution to or for the Holders of such Senior Indebtedness, before any payment or
distribution is made to the Holders of the Guaranteed Notes or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or distribution of assets of any
Guarantor of any kind or character, whether in cash, property or securities, prohibited by the
foregoing is made and, concurrently therewith, the Trustee shall have received an amount in cash
from the Guarantors equal to the Guaranteed Amount before all such Senior Indebtedness is paid in
full, or provision is made for such payment in money in accordance with its terms, such payment or
distribution shall be held in trust for the benefit of and shall be paid over or delivered to the
Holders of such Senior Indebtedness or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear, as calculated by the
Guarantor, for application to the payment of all such Senior Indebtedness remaining unpaid to the
extent necessary to pay such Senior Indebtedness in full in money in accordance with its terms,
after giving effect to any concurrent payment or distribution to or for the benefit of the Holders
of such Senior Indebtedness.
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For purposes of this Article Seventeen, the words “cash, property or securities” shall not be
deemed to include shares of stock of any Guarantor as reorganized or readjusted, or securities of
any Guarantor or any other corporation provided for by a plan of reorganization or readjustment,
the payment of which is subordinated at least to the extent provided in this Article Seventeen with
respect to the Guaranteed Notes to the payment of all Senior Indebtedness with respect to
the Guaranteed Notes.
Section 17.04 Subrogation.
Subject to the satisfaction in full of all obligations under the Note Guarantee pursuant to
the terms of this Indenture, the rights of the Holders of such Guaranteed Notes with respect to the
Note Guarantee shall be subrogated to the rights of the Holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities of the Guarantors applicable to
such Senior Indebtedness; and, for the purposes of such subrogation, no payments or distributions
to the Holders of such Senior Indebtedness of any cash, property or securities to which the Holders
of such Senior Indebtedness or the Trustee would be entitled except for the provisions of this
Article Seventeen, and no payment over pursuant to the provisions of this Article Seventeen to or
for the benefit of the Holders of such Senior Indebtedness by Holders of the Guaranteed
Notes or the Trustee, shall, as between such Guarantor, its creditors other than Holders of
such Senior Indebtedness, and the Holders of the Guaranteed Notes, be deemed to be a
payment by such Guarantor to or on account of such Senior Indebtedness. It is understood that the
provisions of this Article Seventeen are and are intended solely for the purposes of defining the
relative rights of the Holders of the Note Guarantees of the Guaranteed Notes, on the one
hand, and the Holders of the Senior Indebtedness with respect to the Note Guarantees of the
Guaranteed Notes on the other hand.
Nothing contained in this Article Seventeen or elsewhere in this Indenture or in the
Guaranteed Notes is intended to or shall impair, as between each Guarantor, its creditors
other than the Holders of Senior Indebtedness with respect to the Guaranteed Notes, and
the Holders of the Guaranteed Notes, the obligation of such Guarantor, which is absolute
and unconditional, to pay to the Holders of the Guaranteed Notes pursuant to the Note
Guarantee as and when the same shall become due and payable in accordance with its terms, or is
intended to or shall affect the relative rights of the Holders of the Guaranteed Notes and
creditors of such Guarantor, other than the Holders of such Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the Holder of any Guaranteed Note from exercising
all remedies otherwise permitted by applicable law upon default under this Indenture, subject to
the rights, if any, under this Article Seventeen of the Holders of such Senior Indebtedness in
respect of cash, property or securities of such Guarantor, as the case may be, received upon the
exercise of any such remedy.
Upon any payment or distribution of assets of any Guarantor referred to in this Article
Seventeen, the Trustee, subject to the provisions of Article Eleven of this Indenture, and the
Holders of the Guaranteed Notes shall be entitled to conclusively rely upon any order or
decree made by any court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of the receiver, trustee in
bankruptcy, liquidation trustee, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of the Guaranteed Notes, for the purposes of
ascertaining the Persons entitled to participate in such distribution, the Holders of Senior
Indebtedness with respect to the
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Guaranteed Notes and other indebtedness of such Guarantor, as the case may be, the
amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Seventeen.
Section 17.05 Trustee to Effectuate Subordination.
Each Holder of Note Guarantees by such Holder’s acceptance thereof authorizes and directs the
Trustee on such Holder’s behalf to execute such document and to take such action as may be
necessary or appropriate to effectuate the subordination provided in this Article Seventeen and
appoints the Trustee such Holder’s attorney-in-fact for any and all such purposes.
Section 17.06 Notice by the Guarantors.
Each Guarantor shall give prompt written notice to a Responsible Officer of the Trustee of any
fact known to such Guarantor that would prohibit the making of any payment of monies to or by the
Trustee in respect of the Note Guarantees of Guaranteed Notes pursuant to the provisions
of this Article Seventeen. Notwithstanding the provisions of this Article Seventeen or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts that would prohibit the making of any payment of monies to or by the Trustee in respect
of the Note Guarantees of Guaranteed Notes pursuant to the provisions of this Article
Seventeen, unless and until a Responsible Officer of the Trustee shall have received written notice
thereof from the Guarantor or a Holder or Holders of Senior Indebtedness with respect to the
Guaranteed Notes or from any trustee therefor; and before the receipt of any such written
notice, the Trustee, subject to the provisions of Article Six of this Indenture, shall be entitled
in all respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section 17.06 at least two Business
Days prior to the date upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the Note Guarantee on, any Guaranteed Note), then,
anything herein contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purposes for which they were received,
and shall not be affected by any notice to the contrary that may be received by it within two
Business Days prior to such date.
The Trustee, subject to the provisions of Article Six of this Indenture, shall be entitled to
conclusively rely on the delivery to it of a written notice by a Person representing himself to be
a Holder of Senior Indebtedness with respect to the Guaranteed Notes (or a trustee on
behalf of such Holder), to establish that such notice has been given by a Holder of such Senior
Indebtedness or a trustee on behalf of any such Holder or Holders. In the event that the Trustee
determines in good faith that further evidence is required with respect to the right of any Person
as a Holder of such Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Seventeen, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article Seventeen, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
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Upon any payment or distribution of assets of any Guarantor referred to in this Article
Seventeen, the Trustee and the Holders of the Guaranteed Notes shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of the Guaranteed
Notes, for the purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the Holders of Senior Indebtedness with respect to the Guaranteed Notes and other
indebtedness of the Guarantors, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article Seventeen.
Section 17.07 Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article Seventeen in respect of any Senior Indebtedness with respect to the Guaranteed
Notes at any time held by it, to the same extent as any other Holder of such Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such
Holder.
With respect to the Holders of Senior Indebtedness with respect to the Guaranteed
Notes, the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Seventeen, and no implied covenants or
obligations with respect to the Holders of such Senior Indebtedness shall be read into this
Indenture against the Trustee. By virtue of this Article Seventeen, the Trustee shall not be deemed
to owe any fiduciary duty to the Holders of such Senior Indebtedness and, subject to the provisions
of Article Six of this Indenture, the Trustee shall not be liable to any Holder of such Senior
Indebtedness if it shall mistakenly or otherwise pay over or deliver to Holders of the
Guaranteed Notes, any Guarantor or any other Person money or assets to which any Holder of
such Senior Indebtedness shall be entitled.
Nothing in this Article Seventeen shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 11.01(a).
Section 17.08 Subordination May Not Be Impaired.
No right of any present or future Holder of any Senior Indebtedness to enforce subordination
as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of any Guarantor, or by any act or failure to act, in good faith, by any such
Holder, or by any noncompliance by any Guarantor with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such Holder may have or otherwise be
charged with.
Without in any way limiting the generality of the foregoing paragraph, the Holders of Senior
Indebtedness with respect to the Guaranteed Notes may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of Guaranteed Notes,
without incurring responsibility to such Holders and without impairing or releasing the
subordination provided in this Article Seventeen or the obligations hereunder of the Holders of the
Guaranteed
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Notes to the Holders of such Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of, or renew or alter,
such Senior Indebtedness, or otherwise amend or supplement in any manner such Senior Indebtedness
or any instrument evidencing the same or any agreement under which such Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Guarantors and any other Person.
4. No Recourse against Others. No past, present or future director, officer, employee,
incorporator, stockholder or agent of the Guarantors, as such, shall have any liability for any
obligations of the Issuer or any of the Guarantors under the Guaranteed Notes, any Note Guarantee,
the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of the Guaranteed Notes by accepting a
Guaranteed Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
5. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
6. Counterparts. The parties may sign any number of copies of this Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the same agreement.
7. Effect of Headings. The Section headings herein are for convenience only and shall not
affect the construction hereof.
8. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by the Guarantors and the Issuer.
9. Waiver of Jury Trial. EACH OF THE COMPANY, THE GUARANTORS AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE DEBT
SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
10. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or
delay in the performance of its obligations hereunder arising out of or caused by, directly or
indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
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reasonable efforts which are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances.
11. Consequential Damages. In no event shall the Trustee be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever (including, but not
limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.
| CIT Group Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| The Bank of New York Mellon, as Trustee |
||||
| By: | ||||
| Authorized Signatory | ||||
| Baffin Shipping Co, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| C.I.T. Leasing Corporation, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| Capita Colombia Holdings Corp., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
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| Capita Corporation, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| Capita International L.L.C., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| Capita Premium Corporation, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT Capital USA Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT China 12, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT China 13, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
13
| CIT China 2, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT China 3, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT Communications Finance Corporation, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT Credit Finance Corp., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT Credit Group USA Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT Financial Ltd. of Puerto Rico, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
14
| CIT Financial USA, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT Group (NJ) LLC, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT Group SF Holding Co., Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT Healthcare LLC, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT Holdings, LLC, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
15
| CIT Lending Services Corporation, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT Lending Services Corporation (Illinois), as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT Loan Corporation (f/k/a The CIT Group/Consumer Finance, Inc.), as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT Real Estate Holding Corporation, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT Realty LLC, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| CIT Technologies Corporation, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
16
| CIT Technology Financing Services, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| Education Loan Servicing Corporation, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| Equipment Acceptance Corporation, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| Franchise Portfolio 1, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| Franchise Portfolio 2, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| GFSC Aircraft Acquisition Financing Corporation, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
17
| Xxxxxx Shipping Co., Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| Namekeepers LLC, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| Owner-Operator Finance Company, as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| Student Loan Xpress, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| The CIT Group/BC Securities Investment, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
18
| The CIT Group/Business Credit, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| The CIT Group/Capital Finance, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| The CIT Group/Capital Transportation, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| The CIT Group/CmS Securities Investment, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| The CIT Group/Commercial Services, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| The CIT Group/Commercial Services, Inc. (Va.), as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
19
| The CIT Group/Consumer Finance, Inc. (NY), as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| The CIT Group/Consumer Finance, Inc. (TN), as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| The CIT Group/Corporate Aviation, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| The CIT Group/Equipment Financing, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| The CIT Group/Equity Investments, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| The CIT Group/Factoring One, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
20
| The CIT Group/FM Securities Investment, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| The CIT Group/LsC Securities Investment, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| The CIT Group/Securities Investment, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| The CIT Group/Venture Capital, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
| Western Star Finance, Inc., as Guarantor |
||||
| By: | ||||
| Authorized Signatory | ||||
21
Schedule A
Guarantors
| NAME OF | ENTITY | |||
| GUARANTOR | JURISD. | TYPE | ||
Baffin Shipping Co., Inc.
|
Delaware | CORP | ||
C.I.T. Leasing Corporation
|
Delaware | CORP | ||
Capita Colombia Holdings Corp.
|
Delaware | CORP | ||
Capita Corporation
|
Delaware | CORP | ||
Capita International L.L.C.
|
Delaware | LLC | ||
Capita Premium Corporation
|
Delaware | CORP | ||
CIT Capital USA Inc.
|
Delaware | CORP | ||
CIT China 12, Inc.
|
Delaware | CORP | ||
CIT China 13, Inc.
|
Delaware | CORP | ||
CIT China 2, Inc.
|
Delaware | CORP | ||
CIT China 3, Inc.
|
Delaware | CORP | ||
CIT Communications Finance Corporation
|
Delaware | CORP | ||
CIT Credit Finance Corp.
|
Delaware | CORP | ||
CIT Credit Group USA Inc.
|
Delaware | CORP | ||
CIT Financial Ltd. of Puerto Rico
|
Delaware | CORP | ||
CIT Financial USA, Inc.
|
Delaware | CORP | ||
CIT Group (NJ) LLC
|
Delaware | LLC | ||
CIT Group SF Holding Co., Inc.
|
Delaware | CORP | ||
CIT Healthcare LLC
|
Delaware | LLC | ||
CIT Holdings, LLC
|
Delaware | LLC | ||
CIT Lending Services Corporation
|
Delaware | CORP | ||
CIT Lending Services Corporation (Illinois)
|
Delaware | CORP | ||
CIT Loan Corporation (f/k/a The CIT
Group/Consumer Finance, Inc.)
|
Delaware | CORP | ||
CIT Real Estate Holding Corporation
|
Delaware | CORP | ||
CIT Realty LLC
|
Delaware | LLC | ||
CIT Technologies Corporation
|
Michigan | CORP | ||
CIT Technology Financing Services, Inc.
|
Massachusetts | CORP | ||
Education Loan Servicing Corporation
|
Delaware | CORP | ||
Equipment Acceptance Corporation
|
New York | CORP | ||
Franchise Portfolio 1, Inc.
|
Delaware | CORP | ||
Franchise Portfolio 2, Inc.
|
Delaware | CORP | ||
GFSC Aircraft Acquisition Financing Corporation
|
Delaware | CORP | ||
Xxxxxx Shipping Co., Inc.
|
Delaware | CORP | ||
Namekeepers LLC
|
Delaware | LLC | ||
Owner-Operator Finance Company
|
Delaware | CORP | ||
Student Loan Xpress, Inc.
|
Delaware | CORP | ||
The CIT Group/BC Securities Investment, Inc.
|
New Jersey | CORP | ||
The CIT Group/Business Credit, Inc.
|
New York | CORP |
22
| NAME OF | ENTITY | |||
| GUARANTOR | JURISD. | TYPE | ||
The CIT Group/Capital Finance, Inc.
|
Delaware | CORP | ||
The CIT Group/Capital Transportation, Inc.
|
Delaware | CORP | ||
The CIT Group/CmS Securities Investment, Inc.
|
New Jersey | CORP | ||
The CIT Group/Commercial Services, Inc.
|
New York | CORP | ||
The CIT Group/Commercial Services, Inc. (Va.)
|
Delaware | CORP | ||
The CIT Group/Consumer Finance, Inc. (NY)
|
New York | CORP | ||
The CIT Group/Consumer Finance, Inc. (TN)
|
Delaware | CORP | ||
The CIT Group/Corporate Aviation, Inc.
|
Delaware | CORP | ||
The CIT Group/Equipment Financing, Inc.
|
Delaware | CORP | ||
The CIT Group/Equity Investments, Inc.
|
New Jersey | CORP | ||
The CIT Group/Factoring One, Inc.
|
New York | CORP | ||
The CIT Group/FM Securities Investment, Inc.
|
New Jersey | CORP | ||
The CIT Group/LsC Securities Investment, Inc.
|
New Jersey | CORP | ||
The CIT Group/Securities Investment, Inc.
|
Delaware | CORP | ||
The CIT Group/Venture Capital, Inc.
|
New Jersey | CORP | ||
Western Star Finance, Inc.
|
Delaware | CORP |
23
