Exhibit 4.2
THIS THIRD SUPPLEMENTAL INDENTURE dated July 2, 2002, between CIT
GROUP INC. (formerly known as CIT Group Inc. (Del)), a Delaware corporation
("CIT"), and THE BANK OF NEW YORK, a banking corporation organized and existing
under the laws of New York (the "Trustee").
WHEREAS, CIT Group Inc. (formerly known as Tyco Capital Corporation
and Tyco Acquisition Corp. XX (NV) and successor to The CIT Group, Inc.), a
Nevada corporation ("CIT Nevada"), as successor to (i) The CIT Group, Inc., a
Delaware corporation ("CIT Delaware"), and (ii) Tyco Capital Holding Inc.
(formerly known as CIT Holdings (NV) Inc.), a Nevada corporation ("Tyco
Holding"), and the Trustee are parties to an Indenture dated as of September 24,
1998 (as supplemented by the First Supplemental Indenture dated June 1, 2001 and
the Second Supplemental Indenture dated February 14, 2002, the "Indenture"),
pursuant to which CIT Delaware authorized the issue of an unlimited amount of
unsecured and senior subordinated debt securities (the "Debt Securities");
WHEREAS, CIT Nevada has merged into Tyco Holding, and, effective as
of the date hereof, Tyco Holding has subsequently merged into CIT, pursuant to
Articles of Merger previously filed with the Nevada Secretary of State and a
Certificate of Merger previously filed with the Delaware Secretary of State
(together, the "Merger");
WHEREAS, pursuant to the terms of the Merger and applicable law, CIT
succeeded to all of the rights and obligations of CIT Nevada;
WHEREAS, Section 16.01 of the Indenture requires as a condition to a
merger of CIT Nevada, as the Corporation, with or into any other corporation
that the successor corporation expressly assume, by supplemental indenture
executed and delivered to the Trustee, the due and punctual payment of the
principal of and interest, if any, on all the Debt Securities then outstanding
and the performance and observance of each and every covenant, agreement and
condition of the Indenture to be performed or observed by CIT Nevada, as the
Corporation;
WHEREAS, the parties wish to provide that CIT become the
"Corporation" under the Indenture by reason of the Merger;
WHEREAS, CIT has determined that this Third Supplemental Indenture
complies with Section 14.01(b) of the Indenture and does not require the consent
of the holders of any of the Debt Securities; and
WHEREAS, all acts and things necessary to make this Third
Supplemental Indenture a valid agreement of CIT according to its terms have been
done and performed, and the execution and delivery of this Third Supplemental
Indenture have in all respects been duly authorized by CIT;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the sufficiency and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE ONE
PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 TO BE READ WITH INDENTURE
This Third Supplemental Indenture is supplemental to the Indenture,
and the Indenture and this Third 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.
SECTION 1.2 INTERPRETATION
In this Third 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 Third
Supplemental Indenture;
(b) the expression "Article" and "Section" followed by a number
mean and refer to the specified Article or Section of this
Third Supplemental Indenture unless otherwise expressly
stated; and
(c) other expressions defined in the Indenture shall have the same
meanings when used in this Third Supplemental Indenture.
ARTICLE TWO
ASSUMPTION AND SUBSTITUTION
SECTION 2.1 ASSUMPTION AND SUBSTITUTION.
By reason of the Merger and this Third Supplemental Indenture and
effective as of the consummation of the Merger, CIT did and does agree to
succeed to and be substituted for CIT Nevada, as the Corporation, with the same
effect as if it had been named as the Corporation in the Indenture and to become
liable and bound for, and to expressly assume, the due and punctual payment of
the principal of (and premium, if any) and interest, if any, on all the Debt
Securities outstanding as of the date hereof and the performance and observance
of each and every covenant and condition of the Indenture on the part of CIT
Nevada, as the Corporation, to be performed or observed.
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ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 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 Delaware, and (ii) has the
company or corporate power and authority to assume the obligations of the
Corporation under the Indenture and to execute, deliver and perform this Third
Supplemental Indenture.
(b) The execution, delivery and performance by CIT of this
Third Supplemental Indenture and the assumption of the obligations of CIT Nevada
under the Indenture (i) have been duly authorized by all necessary company
action on its part, (ii) do not and will not contravene its certificate of
incorporation or bylaws or the Indenture, any material law or any material
contractual restriction binding on 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 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 Third
Supplemental Indenture or for its assumption of the obligations of CIT Nevada
under the Indenture.
(d) This Third Supplemental Indenture is the legal, valid and
binding obligation of CIT, enforceable against CIT in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and to 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 its knowledge, threatened by or against CIT with respect to this Third
Supplemental Indenture or any of the transactions contemplated hereby.
(f) CIT is not, effective immediately following consummation
of the Merger, in default in the performance of any covenant or condition in the
Indenture.
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ARTICLE FOUR
FURTHER ASSURANCES REQUIRED
SECTION 4.1 TRUSTEE DOCUMENTS.
CIT has delivered to the Trustee, pursuant to the Indenture, an
Officers' 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
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 Third Supplemental Indenture, at the cost and expense of CIT.
ARTICLE FIVE
MISCELLANEOUS
SECTION 5.1 MISCELLANEOUS.
(a) This Third Supplemental Indenture 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 Third Supplemental Indenture is effective as of
the consummation of the Merger.
(c) This Third Supplemental Indenture shall be deemed to be a
contract made under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
(d) The recitals contained herein shall be taken as the
statements of CIT, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representation as to the validity or
sufficiency of this Third Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed as of the day and year first above
written.
CIT GROUP INC., A DELAWARE CORPORATION
By:
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THE BANK OF NEW YORK,
TRUSTEE
By:
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