Exhibit 4.1
[FORM OF GUARANTY]
The CIT Group, Inc.
000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
November 15, 1999
Re: Unconditional Guaranty
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Ladies and Gentlemen:
Reference is hereby made to the existing publicly issued and
outstanding indebtedness (the "Indebtedness") of [Obligor], a [ ]
corporation (the "Obligor"), consisting of the debt securities, notes and
other obligations issued to holders (the "Holders") pursuant to the indentures
and other agreements described on Schedule A attached hereto (each such
indenture, agreement, debt security and note hereinafter referred to
individually as a "Debt Agreement", and collectively as the "Debt
Agreements").
1. Guaranty. The CIT Group, Inc. (the "Guarantor") hereby (a)
unconditionally, absolutely and irrevocably guarantees to the Holders the full
and prompt payment by the Obligor of the obligations incurred by the Obligor
to the Holders pursuant to each Debt Agreement (the "Obligations") and (b)
agrees to pay all out-of-pocket expenses incurred by the trustee or other
representative of the applicable Holders (each, a "Trustee") (including
reasonable counsel fees and expenses) in enforcing its rights under this
Guaranty.
2. Guarantor's Obligations Unconditional. (a) The Guarantor
hereby guarantees that the Obligations will be paid strictly in accordance
with the terms of the applicable Debt Agreement, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting
any of such terms or the rights of the applicable Trustee and the applicable
Holders with respect thereto. The liability of the Guarantor hereunder shall
be absolute and unconditional irrespective of: (i) any lack of a validity or
enforceability of any of the Obligations, or any agreement, instrument or
other document evidencing or securing any of the Obligations; (ii) any change
in the time, manner or place of, payment of, or in any other term in respect
of, all or any of the Obligations, or any other amendment or waiver of, or
consent to any departure from any agreement, instrument or document evidencing
or securing the Obligations; or (iii) any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Obligor or
any other guarantor in respect of the Obligations.
(b) This Guaranty (i) is a continuing guarantee of payment and shall
remain in full force and effect until the satisfaction in full of the
Obligations and the payment of the other expenses to be paid by the Guarantor
pursuant hereto; and (ii) shall continue to be effective or shall be
reinstated, as the case may be, if at any time any payment of any of the
Obligations is rescinded or must otherwise be returned by any Trustee or any
Holder upon the insolvency, bankruptcy or reorganization of the Obligor or
otherwise, all as though such payment had not been made.
3. Waivers. The Guarantor hereby waives: (a) promptness and
diligence; (b) notice of acceptance and notice of the incurrence of any
Obligation by the Obligor; (c) notice of any actions taken by any Trustee or
any Holder or the Obligor under any Debt Agreement or any other agreement or
instrument relating thereto, except as expressly provided for in clause (a) of
Section 1; (d) all other notices, demands and protests, and all other
formalities of every kind in connection with the enforcement of the
Obligations or of the obligations of the Guarantor hereunder, the omission of
or delay in which, but for the provisions of this Section 3, might constitute
grounds for relieving the Guarantor of its obligations hereunder, except as
expressly provided for in clause (a) of Section 1; and (e) any requirement
that any Trustee or any Holder protect, secure, perfect or insure any security
interest or lien or any property subject thereto or exhaust any right or take
any action against the Obligor or any other person or entity or any
collateral.
4. No Subrogation. Notwithstanding any payment or payments made
by the Guarantor hereunder, or any set-off or application of funds of the
Guarantor by any Trustee or any Holder, the Guarantor shall not be entitled to
be subrogated to any of the rights of such Trustee or such Holder against the
Obligor or against any collateral security or guarantee or right of offset
held by such Trustee or such Holder for the payment of the Obligations, nor
shall the Guarantor seek or be entitled to seek any contribution or
reimbursement from the Obligor in respect of payments made by the Guarantor
hereunder, until all amounts owing to such Trustee and such Holders by the
Obligor on account of the Obligations are paid in full. If any amount shall
be paid to the Guarantor on account of such subrogation rights at any time
when all of the Obligations shall not have been paid in full, such amount
shall be held by the Guarantor in trust for the applicable Trustee and the
applicable Holders, segregated from other funds of the Guarantor, and shall,
forthwith upon receipt by the Guarantor, be turned over to the applicable
Trustee in the exact form received by the Guarantor (duly indorsed by the
Guarantor to the applicable Trustee, if required), to be applied against the
Obligations, whether matured or unmatured.
5. Miscellaneous. (a) The Guarantor will make each payment
hereunder in lawful money of the United States or as otherwise required by the
applicable Debt Agreement and in immediately available funds to the applicable
Trustee.
(b) This Guaranty may be amended or terminated by the Guarantor at
any time in writing; provided that, so long as any Indebtedness remains
outstanding under a Debt Agreement or under the debt securities or other
obligations issued pursuant thereto prior to such amendment or termination, no
such amendment which adversely affects the related Holders of such
Indebtedness or any such termination shall become effective with respect to
such Indebtedness unless (i) at least two nationally recognized statistical
rating agencies that have rated such Indebtedness prior to such amendment or
termination confirm in writing that their ratings for such Indebtedness in
effect immediately prior to such amendment or termination will not be
downgraded as a result of such amendment or termination (or, in the case of
any Indebtedness that is not so rated, such Indebtedness shall be treated in
the same manner as any similar Indebtedness that is so rated); or (ii) such
Indebtedness shall have been defeased in accordance with the provisions of the
applicable Debt Agreement; or (iii) the Holders of at least a majority of the
outstanding principal amount of such Indebtedness consent in writing to such
amendment or termination.
(c) All communications provided for hereunder shall be in writing
(including telecopier communication) and shall be mailed, telecopied or
delivered, if to the Guarantor, to it at its address at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Treasurer; and if to any
Trustee, to its address provided for in the applicable Debt Agreement; or, as
to either such Person, at such other address as shall be designated by such
Person in a written notice to such other Person complying as to delivery with
the terms of this Section 5(d). All such notices and other communications
shall be effective (i) if mailed, the earlier of three days after deposit in
the mail or when received, (ii) if telecopied, when transmitted, and (iii) if
delivered, upon delivery.
6. Rights of Holders of Debt. All Holders of Indebtedness shall
be intended third-party beneficiaries of this Guaranty.
7. GOVERNING LAW. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8. Submission To Jurisdiction; Waivers. The Guarantor hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Guaranty, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the
United States for the Southern District of New York, and appellate courts
from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar for of mail), postage
prepaid, to the Guarantor at is address set forth in Section 5(d) above
or at such other address of which the Agent shall have been notified
pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to xxx in any other jurisdiction.
9. WAIVERS OF JURY TRIAL. THE GUARANTOR (AND, BY ACCEPTANCE OF
THE BENEFITS HEREOF, THE TRUSTEES AND THE HOLDERS) HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS GUARANTY AND FOR ANY COUNTERCLAIM THEREIN.
Very truly yours,
THE CIT GROUP, INC.
By:
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Name:
Title:
