Exhibit 10.13
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 Guaranty made by The CIT
Group, Inc., a Delaware corporation ("CIT DELAWARE") dated as of November 15,
1999 (the "GUARANTY") guaranteeing Capita Corporation's obligations under a
certain $765,000,000 CREDIT AGREEMENT, dated as of April 13, 1998 as amended by
a certain Amendments dated as of April 9,1999, November 15, 1999 and May 30,
2001 (collectively the "CREDIT AGREEMENT"; unless otherwise defined herein,
capitalized terms which are defined in the Credit Agreement are used herein as
defined therein) among CAPITA CORPORATION, a Delaware corporation ("CAPITA"),
CIT FINANCIAL LTD., an Ontario corporation ("CIT FINANCIAL"), NEWCOURT CREDIT
GROUP USA INC. ("NEWCOURT USA") the banks party thereto (the "BANKS") and XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent (the "ADMINISTRATIVE
AGENT").
W I N E S S E T H
WHEREAS, Capita, the Banks and the Administrative Agent are parties
to the Credit Agreement pursuant to which Banks have agreed to make, and have
made, certain loans and other extensions of credit to Capita;
WHEREAS, pursuant to the terms and provisions of the Guaranty, CIT
Delaware agreed to guaranty performance of Capita's obligations under the Credit
Agreement:
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 this Assumption Agreement the parties wish to
provide that CIT Holdings shall become the "Guarantor" under the Guarantee by
reason of the Merger and that, immediately thereafter, CIT shall become the
"Guarantor" 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 Guaranty, and has
succeeded to, and has been substituted for, CIT Delaware, with the same effect
as if CIT Holdings had been named in the Guaranty.
(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 Guaranty, 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 Guaranty.
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 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,
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delivery and performance by CIT Holdings of this Assumption Agreement or for its
assumption of the obligations of CIT Delaware under the Guaranty.
(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
Guaranty.
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 Guaranty 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 Guaranty (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 Guaranty.
(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 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,
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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 Guaranty.
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 Xxxxxxx X- 0 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. 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 /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President and Assistant
Secretary
THE CIT GROUP, INC., a Nevada
corporation
By______________________________________
Name:
Title:
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______________________________________
Name:
Title:
THE CIT GROUP, INC., a Nevada
corporation
By /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
and Treasurer
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