THIS FIRST SUPPLEMENTAL INDENTURE dated June 1, 2001, among THE CIT GROUP,
INC. (formerly known as Tyco Acquisition Corp. XX (NV)), a Nevada corporation,
("CIT"), CIT HOLDINGS (NV) INC. (formerly known as Tyco Acquisition Corp. XIX
(NV)), a Nevada corporation ("CIT Holdings"), and THE BANK OF NEW YORK, a
banking corporation organized and existing under the laws of New York (the
"Trustee").
WHEREAS:
(1) The CIT Group, Inc., a Delaware corporation ("CIT Delaware"), and the
Trustee are parties to an Indenture dated as of September 24, 1998 (the
"Indenture"), pursuant to which CIT Delaware authorized the issue of an
unlimited amount of unsecured and unsubordinated debt securities (the
"Securities");
(2) CIT Delaware did issue, under the Indenture, Securities in one or more
series varying in maturity date, interest rate, redemption price, denominations,
original issue date, issue price and as to other terms;
(3) 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");
(4) Immediately following the Merger, CIT Holdings is transferring all of
the assets owned by CIT Delaware immediately prior to the Merger to CIT and CIT
has assumed substantially all of the liabilities of CIT Delaware outstanding
immediately prior to the Merger (the "Transfer") pursuant to a Contribution and
Assumption Agreement (the "Assumption Agreement").
(5) Pursuant to the terms of Merger and applicable law, CIT Holdings
succeeded to all of the rights and obligations of CIT Delaware, and pursuant to
the Assumption Agreement, CIT Holdings has transferred to CIT all such rights
and CIT has assumed all such obligations.
(6) Section 15.01 of the Indenture requires as a condition to a merger of
the Corporation under the Indenture, and to a sale of substantially all of the
property and assets of the Corporation, that the successor corporation and/or
transferee of the property and assets expressly assume the due and punctual
payment of the principal of and interest, if any, on all of the Debt Securities,
according to their tenor, and the due and punctual performance and observance of
all the covenants and conditions of the Indenture to be performed or observed by
the Corporation by supplemental indenture, in form satisfactory to the Trustee,
executed and delivered to the Trustee by such successor or transferee.
(7) The parties wish to provide that CIT Holdings become the "Corporation"
under the Indenture by reason of the Merger and that, immediately thereafter,
CIT becomes the "Corporation" by reason of the Transfer.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
ARTICLE ONE
PROVISIONS OF GENERAL APPLICATION
Section 1.1 To be Read with Indenture; Governing Law
This First Supplemental Indenture is supplemental to the Indenture, and
the Indenture and this First Supplemental Indenture shall hereafter be read
together and shall have effect with respect to the Debt Securities as if all the
provisions thereof and hereof were contained in one instrument, which instrument
shall be governed by and construed in accordance with the laws of the State of
New York, including the laws of the United States applicable therein.
Section 1.2 Interpretation
In this First Supplemental Indenture, unless there is something in the
subject or context inconsistent therewith:
(a) "Indenture", "herein", "hereby", "hereof" and similar expressions
mean and refer to the Indenture and this First Supplemental
Indenture;
(b) the expression "Article" and "Section" followed by a number mean and
refer to the specified Article or Section of this First Supplemental
Indenture unless otherwise expressly stated; and
(c) other expressions defined in the Indenture shall have the same
meanings when used in this First Supplemental Indenture.
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ARTICLE TWO
ASSUMPTION AND RELEASE
Section 2.1 Assumption and Substitution.
(a) By reason of the Merger and this First Supplemental Indenture and
effective as of the consummation of the Merger, CIT Holdings did expressly
assume, as its direct and primary obligation, the due and punctual payment of
the principal of and interest, if any, on all the Debt Securities according to
their tenor, and the due and punctual performance and observance of all of the
covenants and conditions under the Indenture to be performed or observed by CIT
Delaware, and did succeed to, and was substituted for, CIT Delaware, with the
same effect as if CIT Holdings had been named in the Indenture.
(b) By reason of Transfer and this First Supplemental Indenture and
effective as of the consummation of the Transfer, CIT does expressly assume the
due and punctual payment of the principal of and interest, if any, on all of the
Debt Securities, according to their tenor, and the due and punctual performance
and observance of all the covenants and conditions of the Indenture to be
performed or observed by CIT Holdings as successor of CIT Delaware, and does
succeeds to, and is substituted for, CIT Delaware and CIT Holdings, with the
same effect as if CIT had been named in the Indenture.
Section 2.2 Release.
Effective as of the consummation of the Transfer, CIT Holdings is hereby
relieved, released and forever discharged of any further obligations or duties
under the Indenture.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
Section 3.1 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 First
Supplemental Indenture.
(b) The execution, delivery and performance by CIT Holdings of this
First Supplemental Indenture (i) have been duly authorized by all necessary
company action, (ii) do not and will not contravene its articles of
incorporation or bylaws,
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any material law or any material contractual restriction binding on or affecting
CIT Holdings 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 Holdings of this
First Supplemental Indenture or for its assumption of the obligations of CIT
Delaware under the Indenture.
(d) This First Supplemental Indenture 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 First Supplemental Indenture or any of the transactions
contemplated hereby.
(f) CIT Holdings was not, effective immediately following
consummation of the Merger, in default in the performance of any covenant or
condition in the Indenture.
Section 3.2 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 Indenture and to
execute, deliver and perform this First Supplemental Indenture.
(b) The execution, delivery and performance by CIT of this First
Supplemental Indenture and the assumption of the obligations of CIT Holdings
under the Indenture (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
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for the due execution, delivery and performance by CIT of this First
Supplemental Indenture or for its assumption of the obligations of CIT Holdings
under the Indenture.
(d) This First Supplemental Indenture 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 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 First
Supplemental Indenture or any of the transactions contemplated hereby.
(f) CIT is not, effective immediately following consummation of the
Transfer, in default in the performance of any covenant or condition in the
Indenture.
ARTICLE FOUR
FURTHER ASSURANCES REQUIRED
Section 4.1 Trustee Documents.
CIT Holdings and CIT have delivered to the Trustee, pursuant to the
Indenture, an Officer's Certificate and an Opinion of Counsel.
Section 4.2 Further Assurances Required.
At any time and from time to time, upon the Trustee's request, CIT
Holdings and CIT will promptly execute and deliver such documents and
instruments and take such further actions as the Trustee may reasonably request
to effect the purposes of this First Supplemental Indenture, at their respective
cost and expense.
ARTICLE FIVE
MISCELLANEOUS
Section 5.1 Miscellaneous.
(a) This First Supplemental Indenture may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of
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which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
(b) This First Supplemental Indenture is effective in respect of CIT
Holdings, as of the consummation of the Merger and, in respect of CIT, as of the
consummation of the Transfer.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
CIT HOLDINGS (NV) INC.
(formerly known as Tyco Acquisition
Corp. XIX (NV)), a Nevada
corporation
By:______________________________
THE CIT GROUP, INC. (formerly
known as Tyco Acquisition Corp. XX
(NV)), a Nevada corporation
By:______________________________
THE BANK OF NEW YORK,
Trustee
By:______________________________
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