EXHIBIT 10.4
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT dated as of June 1, 2001, made by THE CIT
GROUP, INC. (formerly known as Tyco Acquisition Corp. XX (NV)), a Nevada
corporation, ("CIT") and CIT HOLDINGS (NV) INC. (formerly known as Tyco
Acquisition Corp. XIX (NV)), a Nevada corporation ("CIT HOLDINGS"), to the
364-DAY CREDIT AGREEMENT, dated as of March 28, 2000 (the "ORIGINAL CREDIT
AGREEMENT"), as amended by a certain Amendment dated as of March 27, 2001 (the
"AMENDMENT", collectively along with the Original Credit Agreement, the "CREDIT
AGREEMENT"; unless otherwise defined herein, capitalized terms which are defined
in the Credit Agreement are used herein as defined therein) among THE CIT GROUP,
INC., a Delaware corporation (the "CIT DELAWARE"), the several banks and other
financial institutions from time to time parties to the Credit Agreement (the
"LENDERS"), JPMorgan, a division of CHASE SECURITIES INC., as sole arranger and
bookrunner (in such capacity, the "ARRANGER"), BARCLAYS BANK PLC, BANK OF
AMERICA, N.A., CITIBANK, N.A. and THE DAI-ICHI KANGYO BANK, LIMITED, as
syndication agents (in such capacity, the "SYNDICATION AGENTS") and THE CHASE
MANHATTAN BANK ("CHASE") (in such capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H
WHEREAS, CIT Delaware, the Lenders, the Arranger, the
Syndication Agents and the Administrative Agent are parties to the Credit
Agreement pursuant to which Lenders have agreed to make certain loans and other
extensions of credit to CIT Delaware;
WHEREAS, effective as of the date hereof, CIT Delaware has
merged into CIT Holdings pursuant to a Certificate of Merger filed with the
Delaware Secretary of State on the date hereof and Articles of Merger filed with
the Nevada Secretary of State on the date hereof (the "MERGER");
WHEREAS, immediately following the Merger CIT Holdings will
transfer all of the assets owned by CIT Delaware immediately prior to the
Merger, whether tangible or intangible, including, without limitation, any and
all claims, judgments, contractual rights, causes of action and other rights,
whether legal or equitable (the "ASSETS"), to CIT, and CIT will accept the
contribution of the Assets and assume substantially all of the liabilities of
CIT Delaware, whether fixed or contingent, liquidated or unliquidated, matured
or unmatured, secured or unsecured (collectively, the "LIABILITIES"), in each
case as the same shall exist immediately following the Merger (such assignment
and assumption, the "TRANSFER"), pursuant to, and in accordance with, the terms
and conditions of the Contribution and Assumption Agreement (the "CONTRIBUTION
AND ASSUMPTION AGREEMENT");
WHEREAS, pursuant to the terms of the Merger and applicable
law, CIT Holdings succeeded to all of the rights and obligations of CIT
Delaware, and pursuant to the
Contribution and Assumption Agreement, CIT Holdings has transferred to CIT all
such rights and CIT has assumed all such obligations;
WHEREAS, pursuant to Section 6.2 of the Credit Agreement if
CIT Delaware merges with or into another corporation or sells substantially all
of its assets or property to another corporation, the surviving corporation
and/or the purchaser of the property and assets shall expressly assume the
obligations of the Company under the Credit Agreement and expressly agree to be
bound by all other provisions applicable to the Company under the Credit
Agreement; and
WHEREAS, pursuant to this Assumption Agreement the parties
wish to provide that CIT Holdings shall become the "Company" under the Credit
Agreement by reason of the Merger and that, immediately thereafter, CIT shall
become the "Company" by reason of the Transfer.
NOW, THEREFORE, in consideration of the premises and the
agreements herein, CIT LLC hereby agrees as follows:
ARTICLE I
ASSUMPTION AND RELEASE
Section 1.1. ASSUMPTION AND SUBSTITUTION.
(a) Pursuant to the Merger and this Assumption Agreement, CIT
Holdings has expressly assumed, as its direct and primary obligation, the due
and punctual performance and observance of all of the covenants and conditions
to be performed or observed by CIT Delaware under the Credit Agreement, and has
succeeded to, and has been substituted for, CIT Delaware, with the same effect
as if CIT Holdings had been named in the Credit Agreement.
(b) Pursuant to the Transfer and this Assumption Agreement,
CIT has expressly assumed the due and punctual performance and observance of all
the covenants and conditions to be performed or observed by CIT Holdings, as
successor of CIT Delaware, under the Credit Agreement, and has succeeded to, and
is substituted for, CIT Delaware and CIT Holdings, with the same effect as if
CIT had been named in the Credit Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. REPRESENTATIONS AND WARRANTIES OF CIT HOLDINGS.
CIT Holdings hereby represents and warrants as follows:
(a) CIT Holdings (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada and (ii) has
the power and authority to execute, deliver and perform this Assumption
Agreement.
(b) The execution, delivery and performance by CIT Holdings of
this Assumption Agreement (i) have been duly authorized by all necessary company
action, (ii) do not and will not contravene its articles of incorporation or
bylaws, any material law or any material contractual restriction binding on or
affecting CIT Holdings or any of
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its material properties and (iii) do not and will not result in or require the
creation of any lien, security interest or other charge or encumbrance upon or
with respect to any of its material properties.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or other regulatory body is
required for the due execution, delivery and performance by CIT Holdings of this
Assumption Agreement or for its assumption of the obligations of CIT Delaware
under the Credit Agreement.
(d) This Assumption Agreement is, the legal, valid and binding
obligation of CIT Holdings, enforceable against CIT Holdings in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
(e) No litigation, investigation or proceeding of or before
any arbitrator or governmental authority or other regulatory body is pending or,
to the knowledge of CIT Holdings, threatened by or against CIT Holdings with
respect to this Assumption Agreement or any of the transactions contemplated
hereby.
(f) CIT Holdings was not, effective immediately following the
Merger, in default in the performance of any covenant or condition in the Credit
Agreement.
Section 2.2. REPRESENTATIONS AND WARRANTIES OF CIT. CIT hereby
represents and warrants as follows:
(a) CIT (i) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Nevada and (ii) has the
power and authority to assume the obligations of Corporation under the Credit
Agreement and to execute, deliver and perform this Assumption Agreement.
(b) The execution, delivery and performance by CIT of this
Assumption Agreement and the assumption of the obligations of CIT Holdings under
the Credit Agreement (i) have been duly authorized by all necessary company
action, (ii) do not and will not contravene its articles of incorporation or
bylaws, any material law or any material contractual restriction binding on or
affecting CIT or any of its material properties and (iii) do not and will not
result in or require the creation of any lien, security interest or other charge
or encumbrance upon or with respect to any of its material properties.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or other regulatory body is
required for the due execution, delivery and performance by CIT of this
Assumption Agreement or for its assumption of the obligations of CIT Holdings
under the Credit Agreement.
(d) This Assumption Agreement is the legal, valid and binding
obligation of CIT, enforceable against CIT in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws
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affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity
or at law).
(e) No litigation, investigation or proceeding of or before
any arbitrator or governmental authority or other regulatory body is pending or,
to the knowledge of CIT, threatened by or against CIT with respect to this
Assumption Agreement or any of the transactions contemplated hereby.
(f) CIT is not, effective immediately following the Transfer,
in default in the performance of any covenant or condition in the Credit
Agreement.
ARTICLE III
FURTHER ASSURANCES REQUIRED
Section 3.1. DOCUMENTS. The Administrative Agent shall have
received from CIT (a) the executed legal opinion of Xxxxxx Xxxxxx & Xxxxxxx,
Nevada counsel to CIT, substantially in the form of Exhibit A-1 and (b) the
executed legal opinion of the general counsel of CIT, substantially in the form
of Exhibit A-2.
Section 3.2. FURTHER ASSURANCES REQUIRED. At any time and from
time to time, upon the Administrative Agent's request, CIT Holdings and CIT will
promptly execute and deliver such documents and instruments and take such
further actions as the Administrative Agent may reasonably request to effect the
purposes of this Assumption Agreement, at their respective cost and expense.
ARTICLE IV
MISCELLANEOUS
Section 4.1. MISCELLANEOUS(a) This Assumption Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which shall be deemed to be an original, but all
of which taken together shall constitute one and the same agreement.
(b) This Assumption Agreement is effective in respect of CIT
Holdings, as of the Merger and, in respect of CIT, as of the Transfer.
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IN WITNESS WHEREOF, CIT Holdings and CIT have caused this
Assumption Agreement to be executed by an officer thereunto duly authorized, as
of the date first above written.
CIT HOLDINGS (NV) INC., a Nevada
corporation
By:
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Name:
Title:
THE CIT GROUP, INC., a Nevada corporation
By:
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Name: Xxxxx X. Xxxxx
Title: Executive Vice President
and Treasurer
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