CIT Group Inc.
Global Medium-Term Notes
Due 9 Months or More From Date of Issue
Global Selling Agency Agreement
January 20, 2006
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, New York 10179
BNP Paribas Securities Corp.
787 Seventh Avenue
New York, New York 10019
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Credit Suisse Securities (USA) LLC
11 Madison Avenue
New York, New York 10010
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Goldman, Sachs & Co.
85 Broad St.
New York, New York 10004
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HSBC Securities (USA) Inc.
452 Fifth Avenue
New York, New York 10018
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
LaSalle Financial Services, Inc.
55 East 52nd Street
New York, New York 10055
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center, 15th Floor
New York, New York 10080
Morgan Stanley & Co. Incorporated
1585 Broadway, 4th Floor
New York, New York 10036
UBS Securities LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Wachovia Capital Markets, LLC
301 South College Street
Charlotte, North Carolina 28288-0602
Ladies and Gentlemen:
CIT Group Inc., a Delaware corporation, (the "Company"), confirms
its agreement with each of you (individually, an "Agent", and collectively, the
"Agents") with respect to the issue and sale by the Company of its Medium-Term
Senior Notes, Series A, Due 9 Months or More from Date of Issue (the "Senior
Notes") and its Medium-Term Subordinated Notes, Series A, Due 9 Months or More
from Date of Issue (the "Subordinated Notes") (the Senior Notes and the
Subordinated Notes are referred to collectively herein as the "Notes"). The
Senior Notes will be issued under an indenture described on Schedule I attached
hereto (as may be amended or supplemented from time to time, the "Senior
Indenture"), between the Company and the trustee described on such Schedule (the
"Senior Trustee") and pursuant to resolutions of the Board of Directors of the
Company, or a committee thereof, or supplemental indentures, if any, as provided
in Section 3.1 of the Senior Indenture. The Company may change or add trustees
to Schedule I with the consent of the Agents, which consent shall not be
unreasonably withheld. The Subordinated Notes will be issued under an indenture
described on Schedule I attached hereto (as may be amended or supplemented from
time to time, the "Subordinated Indenture"), between the Company and the trustee
described on such Schedule (the "Subordinated Trustee") and pursuant to
resolutions of the Board of Directors of the Company, or a committee thereof, as
provided in Section 3.1 of the Subordinated Indenture. The Senior
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Indenture and the Subordinated Indenture are collectively referred to herein as
the "Indentures." The Senior Trustee and the Subordinated Trustee are each
referred to herein as a "Trustee." The Notes will be in fully registered form
and will be, in the case of Notes denominated in currencies or currency units
other than U.S. dollars (the "Foreign Currency Notes"), represented by one or
more global Notes or, in the case of all other Notes (the "Dollar Denominated
Notes"), represented by one or more global Notes registered in the name of and
delivered to The Depository Trust Company ("DTC") or its nominee and recorded in
the book-entry system maintained by DTC. The Notes will be in a minimum
denomination of U.S. $1,000 and integral multiples of U.S. $1,000 in excess
thereof, or, in the case of Foreign Currency Notes, in the denominations
indicated in a Term Sheet (as defined below) and/or in a pricing supplement (the
"Pricing Supplement") to the Prospectus referred to below. The Notes will have
the maturities, priority, annual interest rates (whether fixed or floating), if
any, or original issue discount, if any, redemption or repayment provisions, if
any, currency or currency unit of denomination, and other terms set forth in the
Pricing Supplement. The Notes will be issued, and the terms thereof established,
in accordance with the applicable Indenture and the Global Medium-Term Note
Administrative Procedures attached hereto as Exhibit I (the "Procedures"). The
Procedures may only be amended by written agreement of the Company and each
Agent after notice to and, in the case of amendments which affect the rights,
duties or obligations of a Trustee, a registrar, a paying agent, an
authenticating agent or an exchange rate agent, with the approval of, such
Trustee, registrar, paying agent, authenticating agent, or exchange rate agent,
as the case may be.
1. Representations and Warranties of the Company The Company
represents and warrants to, and agrees with, each Agent that:
(a) Registration statement No. 333-131159 has been filed with the
Securities and Exchange Commission (the "Commission"). On or prior to the
date hereof, a prospectus supplement relating to the Notes has been filed
as a part of the Registration Statement (defined below), if applicable, or
pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the
"Act"). As used in this Agreement, "Registration Statement" means
registration statement No. 333-131159 (and any further registration
statements which may be filed by the Company for the purpose of
registering Notes and in connection with which this Agreement is included
or incorporated by reference as an exhibit), as amended at the date of
this Agreement and in the form in which it has most recently been filed,
or transmitted for filing at or prior to the Time of Sale (as defined
below) with the Commission and "Prospectus" means the prospectus relating
to the Notes included in the Registration Statement, the prospectus
supplement relating to the Notes heretofore filed with the Commission and
any Pricing Supplement relating to the Notes in the form in which it has
most recently been filed, or transmitted for filing with the Commission at
or prior to the Time of Sale, that has not been superseded or modified, in
each case including all material incorporated by reference therein. The
Company proposes to file with the Commission from time to time, pursuant
to Rule 424(b) under the Act, Pricing Supplements to the Prospectus which
will describe certain pricing terms of the Notes and, as further set forth
herein, prior to any such filing will advise you of all information to be
set forth therein.
(b) (i) At the time of filing the Registration Statement, (ii) at
the time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act
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(whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") or form of prospectus), and
(iii) at the time the Company or any person acting on its behalf (within
the meaning, for this clause only, of Rule 163(c)) under the Act made any
offer relating to the Notes in reliance on the exemption of Rule 163, the
Company was a "well-known seasoned issuer" as defined in Rule 405 under
the Act, including not having been an "ineligible issuer" as defined in
Rule 405.
The Registration Statement is an "automatic shelf registration
statement," as defined in Rule 405, that initially became effective within
three years of the date of this Agreement.
The Company has not received from the Commission any notice pursuant
to Rule 401(g)(2) under the Act objecting to use of the automatic shelf
registration statement form.
(c) On the date the Registration Statement became effective, the
Registration Statement and the Prospectus (i) conformed in all respects to
the applicable requirements of the Act, the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the applicable rules and
regulations of the Commission promulgated pursuant to the Act, the Trust
Indenture Act or the Exchange Act, as the case may be (the "Rules and
Regulations"), and (ii) did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. On the date of
this Agreement, the Registration Statement and the Prospectus conform, and
when any supplement to the Prospectus is filed with the Commission and at
the date of delivery by the Company of any Notes sold hereunder, the
Registration Statement and the Prospectus and any supplement thereto will
conform, in all respects to the applicable requirements of the Act, the
Trust Indenture Act and the applicable Rules and Regulations thereunder,
and neither the Registration Statement nor the Prospectus includes, or
will include as of any such time, any untrue statement of a material fact
or omits or will omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, this representation and warranty shall not apply to any
statement or omission made in reliance upon and in conformity with,
written information furnished to the Company by an Agent specifically for
use in the Registration Statement or Prospectus or to that part of the
Registration Statement which shall constitute the Statement of Eligibility
under the Trust Indenture Act (Form T-1) of the Trustee under the
Indenture.
(d) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the Rules and Regulations
thereunder, as applicable, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the applicable
requirements of the Exchange Act and the Rules and Regulations thereunder,
and will not contain an untrue statement of a material fact or
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omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
(e) As of the applicable Time of Sale, the Term Sheet (as defined
below), any Alternative Issuer Free Writing Prospectus (as defined below),
the prospectus relating to the Notes included in the Registration
Statement and the prospectus supplement relating to the Notes heretofore
filed with the Commission, all considered together (the "General
Disclosure Package") did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the General Disclosure Package based upon
and in conformity with written information furnished to the Company by any
Agent specifically for use therein.
(f) (i) At the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) under the Act) of the
Notes and (ii) at the date hereof, the Company was not and is not an
"ineligible issuer" as defined in Rule 405.
2. Solicitations by the Agent of Offers to Purchase; Purchases as
Principal; Additional Agents; Marketing Materials
(a) Subject to the terms and conditions set forth herein, the
Company hereby authorizes each Agent to act as its agent to solicit offers for
the purchase of all or any part of the Notes, upon the terms set forth in the
Prospectus, as it may be amended or supplemented from time to time pursuant to
this Agreement, during the period beginning on the date hereof and ending on the
date the Company shall specify to the Agent in writing. On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, each of the Agents agrees, as agent of the Company,
to use its reasonable best efforts to solicit offers to purchase the Notes upon
the terms and conditions set forth in the Prospectus as then amended or
supplemented. The Company reserves the right, in its sole discretion, (i) to
sell the Notes on its own behalf directly to investors in those jurisdictions
where it is authorized to do so or indirectly to investors through other agents,
(ii) to sell the Notes to other agents acting as principal and (iii) to suspend
solicitation of purchases of the Notes commencing at any time for any period of
time or permanently. Upon receipt of written instructions from the Company, an
Agent will forthwith suspend solicitation of offers to purchase the Notes until
such time as the Company has advised it that such solicitation may be resumed.
Unless otherwise agreed between the Company and such Agent, the
Company agrees to pay each Agent, as consideration for soliciting the sale of
any Notes, a commission in U.S. dollars, at the time of settlement of each sale
of Notes by the Company as a result of a solicitation made by such Agent in an
amount equal to the following percentages of the principal amount of each Note
placed by such Agent:
Term Commission Rate %
---- -----------------
9 months to less than 1 yr. .05
1 yr. to less than 18 months .05
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18 months to less than 2 yrs. .05
2 yrs. to less than 3 yrs. .10
3 yrs. to less than 4 yrs. .15
4 yrs. to less than 5 yrs. .25
5 yrs. to less than 6 yrs. .35
6 yrs. to less than 7 yrs. .375
7 yrs. to less than 10 yrs. .40
10 yrs. to less than 15 yrs. .45
15 yrs. to less than 20 yrs. .50
20 yrs. up to and including 30 yrs. .750
More than 30 yrs. To be negotiated at
time of issuance
The Agents are authorized to solicit offers to purchase the Notes
only in the denominations indicated in the applicable Term Sheet or Pricing
Supplement to the Prospectus.
Each Agent shall communicate to the Company, orally or in writing,
each offer received by it to purchase Notes other than those reasonably rejected
by it as provided below. The Company shall have the sole right to accept offers
to purchase the Notes and may reject any such offer in whole or in part. Each
Agent shall have the right to reject, in its discretion reasonably exercised,
any offer received by it to purchase the Notes in whole or in part, and any such
rejection shall not be deemed a breach of its agreements contained herein.
Unless otherwise agreed between the Agents and the Company, the Agents and the
Company agree to perform the respective duties and obligations specifically
provided to be performed by them in the Procedures.
(b) Subject to the terms and conditions stated herein, the Company
agrees that, whenever the Company determines to sell Notes directly to any Agent
as principal for its own account or for resale to others, it will enter into a
separate supplemental agreement relating to such sale in accordance with the
provisions of this Section 2(b) and for the purposes of this Agreement, (i) the
term "Agent" shall refer to each of you acting solely in the capacity as agent
for the Company hereunder and not as principal; (ii) the term "Purchaser" shall
refer to each of you acting solely as principal hereunder and not as agent; and
(iii) the term "you" or "your" shall refer to each of you acting in both such
capacities or in either such capacity. Any Purchaser may utilize a selling or
dealer group in connection with the resale of the Notes and may reallow any
portion of its commission.
Each sale of Notes to a Purchaser shall be made in accordance with
the terms of this Agreement and the Procedures and a supplemental agreement
which will provide for the sale of such Notes to, and the purchase and
reoffering thereof by, a Purchaser. Each supplemental agreement (which may be
substantially in the form of Exhibit B hereto) is herein referred to as a "Terms
Agreement". Unless the context otherwise requires, each reference contained
herein to "this Agreement" shall be deemed to include any applicable Terms
Agreement between the Company and the Purchaser. Each such Terms Agreement,
shall be with respect to such information (as applicable) as is specified in
Exhibit B hereto. Unless and until a Terms Agreement has been validly entered
into as described above with regard to an issuance of Notes, an Agent purchasing
such Notes shall be deemed to be acting as Agent and not as Purchaser with
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regard to such issuance. The Purchaser's commitment to purchase Notes as
principal pursuant to any Terms Agreement shall be deemed to have been made on
the basis of the representations, warranties, covenants and agreements of the
Company herein contained and shall be subject to the terms and conditions set
forth in this Agreement and any further terms and conditions set forth in such
Terms Agreement. Each Terms Agreement shall specify the principal amount of
Notes to be purchased by the Purchaser pursuant thereto, the price to be paid to
the Company for such Notes, the currency or currency unit in which such Notes
shall be denominated, the rate at which interest, if any, will be paid on the
Notes (and whether such rate of interest shall be fixed or floating), the time
the Company and the Purchaser have agreed is immediately prior to or at the time
when sales of such Notes will first be confirmed orally or in writing (the "Time
of Sale"), the date of delivery of and payment for such Notes (the "Purchase
Date"), and such other provisions (including further terms of the Notes) as may
be mutually agreed upon. Each such Terms Agreement shall also specify the
requirements for the opinions of counsel and the certificate of the Company or
its officers pursuant to Sections 4(d) and 4(f) hereof and the requirements, if
any, for the letter(s) from the Company's independent registered public
accounting firm pursuant to Section 4(c) hereof. In addition, each such Terms
Agreement shall also specify whether such Notes are to be listed on any stock
exchange.
Delivery of the certificates for Notes sold to a Purchaser pursuant
to any Terms Agreement shall be made as agreed to between the Company and the
Purchaser as set forth in the respective Terms Agreement, not later than the
Purchase Date set forth in such Terms Agreement, against payment of immediately
available funds to the Company in the net amount due to the Company for such
Notes by the method and in the form set forth in the respective Terms Agreement.
(c) The documents required to be delivered by Section 4 hereof shall
be delivered to the office of Wilmer Cutler Pickering Hale and Dorr LLP, counsel
for the Agents, at 2445 M Street, N.W., Washington, DC 20037 on the date hereof,
or such other places as the parties may agree.
(d) The Company, without the consent of the Agents, may appoint
additional firms or corporations to become Agents hereunder and within the
meaning of this Agreement upon the execution by the Company and each such firm
or corporation of an agreement to the effect that such firm or corporation shall
have all the rights and obligations of an Agent hereunder.
(e) Each Agent agrees that it will comply with and make the
representations and warranties in accordance with the provisions set forth in
Schedule S hereof, provided that (i) such provisions may be supplemented or
modified by the agreement of the Company and the relevant Agent in relation to a
specific issue of Notes as set forth in the relevant Pricing Supplement and (ii)
such provisions shall not apply if the relevant law or regulation in the
relevant jurisdiction no longer applies and has not been replaced or modified by
any different law or regulation.
(f) (i) Each Term Sheet and each Alternative Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times through the
completion of the public offer and sale of the Notes to which such Term Sheet or
Alterative Issuer Free Writing Prospectus relates or until
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any earlier date that the Company notified or notifies the Agents as described
in the next sentence, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information contained in
the Registration Statement relating to the Notes, including any document
incorporated by reference therein and any prospectus supplement deemed to be a
part thereof that has not been superseded or modified. If at any time from the
issuance of a Term Sheet or Alternative Issuer Free Writing Prospectus to the
completion of the distribution of the Notes there occurred or occurs an event or
development as a result of which such Term Sheet or Alternative Issuer Free
Writing Prospectus conflicted or would conflict with the information contained
in the Registration Statement relating to the Notes, the Company has promptly
notified or will promptly notify the Agents and has promptly amended or will
promptly amend or supplement, at its own expense, such Term Sheet or Alternative
Issuer Free Writing Prospectus to eliminate or correct such conflict. The
foregoing two sentences do not apply to statements in or omissions from any Term
Sheet or Alternative Issuer Free Writing Prospectus based upon and in conformity
with written information furnished to the Company by any Agent specifically for
use therein. "Term Sheet" means a term sheet with respect to the final terms of
the Notes substantially in the form of Exhibit C-1 or Exhibit C-2. "Alternative
Issuer Free Writing Prospectus" means any "issuer free writing prospectus," as
defined in Rule 433 under the Act (other than the Term Sheet), relating to the
Notes that the Company and the Agents have agreed to, prior to the use thereof,
in writing pursuant to Section 2(f)(ii) in the form filed or required to be
filed with the Commission or, if not required to be filed, in the form retained
in the Company's records pursuant to Rule 433(g).
(ii) The Company represents and agrees that, unless it obtains the
prior consent of the applicable Agents, it has not made and will not make any
offer relating to the Notes that would constitute an "issuer free writing
prospectus," as defined in Rule 433, or that would otherwise constitute a "free
writing prospectus," as defined in Rule 405, required to be filed with the
Commission, and each relevant Agent represents and warrants to, and agrees with,
the Company and each other relevant Agent that, unless it obtains the prior
consent of the Company and the Agents, it has not made and will not make any
offer relating to the Notes that would constitute a "free writing prospectus" as
defined in Rule 405 (except as provided below); provided that, prior to the use
thereof, and the filing thereof, the prior consent of the Company and Agents
shall be deemed to have been given in respect of any Term Sheet or Alternative
Issuer Free Writing Prospectus attached as a schedule to any applicable Terms
Agreement. Any such Term Sheet, or in the case of an Alternative Issuer Free
Writing Prospectus that the Company and the Agents have agreed in writing to
use, prior to the use thereof, is hereinafter referred to as a "Permitted Free
Writing Prospectus." The Company represents that it has treated or agrees that
it will treat each Permitted Free Writing Prospectus as an "issuer free writing
prospectus," as defined in Rule 433, and has complied and will comply with the
requirements of Rule 433 applicable to any Permitted Free Writing Prospectus,
including timely Commission filing where required, legending and record keeping.
The Company consents to the use by any Agent of a free writing prospectus that
contains only (i) information describing the preliminary terms of the Notes or
their offering or (ii) information that describes the final terms of the Notes
or their offering and that is included in the final Term Sheet of the Company
contemplated by Section 3(m).
3. Covenants of the Company The Company covenants and agrees with
each Agent that it will deliver to counsel for the Agents one signed copy of the
Registration Statement
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relating to the Notes, including all exhibits, in the form it became effective
and of all amendments thereto and that:
(a) The Company will advise counsel for the Agents promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus or to prepare any additional registration statement with
respect to the registration of Notes, and in any case, prior to the
termination of the offering of the Notes pursuant to this Agreement, will
provide such Agent with a reasonable opportunity to comment thereon and
will advise such Agent promptly of (x) the institution by the Commission
of any stop order proceedings in respect of the Registration Statement or
of any part thereof or the additional registration statement or (y)
receipt from the Commission of any notice of objection to the use of the
Registration Statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) under the Act by the Company and will use its best efforts
to prevent the issuance of any such stop order or notice of objection and
to obtain as soon as possible the withdrawal of such stop order or notice
of objection, if issued. If the termination of the offering of the Notes
pursuant to this Agreement has not occurred prior to the third anniversary
(the "Renewal Deadline") of the initial effective date of the Registration
Statement, the Company will prior to the Renewal Deadline file, if it has
not already done so and is eligible to do so, a new automatic shelf
registration statement relating to the Notes. If the Company is no longer
eligible to file an automatic shelf registration statement, the Company
will prior to the Renewal Deadline, if it has not already done so, file a
new shelf registration statement relating to the Notes, and will use its
reasonable efforts to cause such registration statement to be declared
effective within 180 days after the Renewal Deadline. The Company will use
its reasonable efforts to permit the public offering and sale of the Notes
to continue as contemplated in the expired registration statement relating
to the Notes. If the Company receives from the Commission a notice
pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the
automatic shelf registration statement form, the Company will (i) promptly
notify the Agents, (ii) promptly file a new registration statement or
post-effective amendment on the proper form relating to the Notes, (iii)
use its reasonable efforts to cause such registration statement or
post-effective amendment to be declared effective as soon as practicable,
and (iv) promptly notify the Agents of such effectiveness. The Company
will use its reasonable efforts to permit the public offering and sale of
the Notes to continue as contemplated in the registration statement that
was the subject of the Rule 401(g)(2) notice or for which the Company has
otherwise become ineligible. The Company will promptly advise each Agent
(i) when each supplement to the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b), (ii) when any amendment of the
Registration Statement or the additional registration statement shall have
been filed and become effective, (iii) when any Term Sheet or Alternative
Issuer Free Writing Prospectus shall have been filed with the Commission
pursuant to Rule 433, (iv) of any request by the Commission for any
amendment of the Registration Statement or amendment of or supplement to
the Prospectus or for any additional information, and (v) of the receipt
by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose.
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(b) If, at any time when a Prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Registration Statement or
the Prospectus to comply with the Act, the Company promptly will (i)
notify each Agent to suspend the solicitation of offers to purchase the
Notes and (ii) prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance.
(c) The Company will file such reports pursuant to the Exchange Act
and the Rules and Regulations thereunder, as are necessary in order to
make generally available to its security holders as soon as practicable an
earning statement within the meaning of Rule 158 under the Act for the
purposes of, and to provide the benefits contemplated by the last
paragraph of Section 11(a) of the Act.
(d) The Company will furnish each Agent with copies of the
Registration Statement, including all exhibits, the Prospectus and all
amendments and supplements to such documents, including documents
incorporated by reference therein, in each case as soon as available and
in such quantities as are reasonably requested and so long as an Agent is
required to deliver a Prospectus in connection with sales or solicitations
of offers to purchase the Notes.
(e) The Company will use its best efforts, in cooperation with the
Agents, to qualify the Notes for sale under the applicable laws of such
jurisdictions as the Agents may reasonably request and will continue such
qualifications in effect so long as required for the sale of the Notes
hereunder; provided, however, that the Company shall not be obligated to
qualify as a foreign corporation or as a dealer in securities or to
execute or file any consents to service of process under the laws of any
such state. Counsel for the Agents shall provide or cause to be provided
to the Agents, annually, a "blue sky" memorandum relating to its debt
securities of the Company registered under the Registration Statement.
(f) The Company covenants and agrees with each Agent that the
Company will pay or cause to be paid the following: (i) the fees and
expenses of the Company's counsel and accountants in connection with the
registration of the Notes under the Act and all other expenses in
connection with the registration of the Notes under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any preliminary prospectus, any Term Sheet or
Alternative Issuer Free Writing Prospectus, the Prospectus and any Pricing
Supplement and all other amendments and supplements thereto and the
mailing and delivering of copies thereof to such Agent; (ii) all
reasonable and necessary fees and expenses of counsel for the Agents in
connection with any issuance of the Notes to investors through each such
Agent, which fees and expenses are incurred subsequent to the date hereof,
unless otherwise agreed to between the Company and the Agents; (iii) all
expenses in connection with the qualification of the Notes for offering
and sale under state securities laws as provided in
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Section 3(e) hereof, including fees and disbursements in connection with
such qualification and in connection with "blue sky" and "blue sky"
surveys; (iv) any fees charged by securities rating services for rating
the Notes; (v) any filing fees incident to any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale
of the Notes; (vi) the cost of preparing the Notes; (vii) any advertising
connected with the solicitation of offers to purchase and the sale of
Notes so long as such advertising expenses have been approved by the
Company; (viii) the cost of providing any CUSIP, ISIN, common code or
other identification numbers for the Notes; and (ix) all other costs and
expenses incident to the performance of the Company's obligations
hereunder which are not otherwise specifically provided for in this
paragraph. Except as provided in Section 5 hereof, each Agent shall pay
all other expenses it incurs.
(g) Each time the Registration Statement or the Prospectus is
amended or supplemented, including by the filing with the Commission of
any document incorporated by reference into the Prospectus (other than by
an amendment or supplement (i) relating to an offering of securities other
than the Notes, (ii) consisting of additional exhibits to the Registration
Statement filed in a Current Report on Form 8-K or a Post-Effective
Amendment to the Registration Statement filed pursuant to Rule 462(d)
under the Act, (iii) providing solely for the specification of the terms
of the Notes (excluding (a) any change in the formula by which interest
rates on the Notes may be determined and (b) any information relating to
Specified Currencies (as defined in the Prospectus) other than U.S.
dollars), or (iv) occurring due to incorporation by reference of a Form
10-Q or Form 10-K of the Company), the Company, upon the request of an
Agent, will deliver or cause to be delivered forthwith to such Agent a
certificate of the Company signed by the principal financial or accounting
officer of the Company, dated the date of the effectiveness of such
amendment or the date of filing of such supplement (or document
incorporated by reference), in form reasonably satisfactory to such Agent,
to the effect that the statements contained in the certificate referred to
in Section 4(f) hereof that was last furnished to the Agents (either
pursuant to Section 4(f) hereof or pursuant to this Section 3(g)) are true
and correct at the time of the effectiveness of such amendment or the
filing of such supplement (or document incorporated by reference) as
though made at and as of such time (except that (i) the last day of the
fiscal quarter for which financial statements of the Company were last
filed with the Commission shall be substituted for the corresponding date
in such certificate and (ii) such statements shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented
to the time of the effectiveness of such amendment or the filing of such
supplement (or document incorporated by reference)) or, in lieu of such
certificate, a certificate substantially in the form of the certificate
referred to in Section 4(f) hereof but modified to relate to the last day
of the fiscal quarter for which financial statements of the Company were
last filed with the Commission and to the Registration Statement and the
Prospectus as amended and supplemented to the time of the effectiveness of
such amendment or the filing of such supplement (or document incorporated
by reference); provided, however, that such certificate need not be
furnished with respect to an amendment or supplement (or document
incorporated by reference) deemed immaterial in the reasonable opinion of
such Agent.
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(h) Each time the Registration Statement or the Prospectus is
amended or supplemented, including by the filing with the Commission of
any document incorporated by reference into the Prospectus, the Company,
upon the request of an Agent, shall furnish or cause to be furnished
forthwith to such Agent the written opinion or opinions of Robert J.
Ingato, General Counsel of the Company, and/or Shearman & Sterling LLP, or
other counsel of the Company reasonably satisfactory to such Agent;
provided, however, that such opinions need not be furnished with respect
to an amendment or supplement (or document incorporated by reference) (i)
relating to an offering of securities other than the Notes, (ii)
consisting of additional exhibits to the Registration Statement filed in a
Current Report on Form 8-K or a Post-Effective Amendment to the
Registration Statement filed pursuant to Rule 462(d) under the Act (iii)
providing solely for the specification of the terms of the Notes
(excluding (a) any change in the formula by which interest rates on the
Notes may be determined and (b) any information relating to Specified
Currencies other than U.S. dollars), or (iv) occurring due to
incorporation by reference of a Form 10-Q or Form 10-K of the Company. Any
such opinion shall be dated the date of the effectiveness of such
amendment or the date of filing of such supplement (or document
incorporated by reference), in form satisfactory to the Agents, and shall
be substantially in the form of the opinions referred to in Section 4(d)
hereof but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of the effectiveness of
such amendment or the filing of such supplement (or document incorporated
by reference); provided, however, that such opinion need not be furnished
with respect to an amendment or supplement (or document incorporated by
reference) deemed immaterial in the reasonable opinion of such Agent. In
lieu of such opinion, counsel last furnishing such an opinion to the
Agents may furnish to the Agents a letter to the effect that the Agents
may rely on such last opinion to the same extent as though it were dated
the date of such letter authorizing reliance on such last opinion (except
that statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the time of the effectiveness of such amendment or the filing of such
supplement (or document incorporated by reference therein)).
(i) Each time that the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus, the Company
shall, upon request by an Agent, unless a letter is otherwise furnished
pursuant to Section 3(o) hereof, cause its independent registered public
accounting firm, forthwith to furnish such Agent a letter, dated the date
of the effectiveness of such amendment or the date of filing of such
supplement, in form satisfactory to such Agent, substantially in the form
of the letter referred to in Section 4(c) hereof with such changes as may
be necessary to reflect the amended and supplemental financial information
included or incorporated by reference in the Registration Statement and
the Prospectus, as amended or supplemented to the date of such letter.
(j) Each acceptance by the Company of an offer to purchase Notes
will be deemed to be a representation and warranty to the Agents that
neither the Registration
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Statement, the Prospectus nor the General Disclosure Package, as then
amended or supplemented, includes any untrue statement of a material fact,
or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(k) During the period from the date of any Terms Agreement with
regard to a sale of Notes in aggregate amount of not less than $50 million
to a Purchaser and continuing to and including the Purchase Date for such
Notes, the Company will not offer, sell, contract to sell or otherwise
dispose of debt securities of the Company in the United States which are
substantially similar to such Notes, without the prior written consent of
the Purchaser.
(l) The Company, during the period when the Prospectus is required
to be delivered under the Act, will file promptly all documents required
to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act.
(m) The Company will prepare with respect to any Notes to be sold
through or to the Agents pursuant to this Agreement, a final Term Sheet,
containing solely a description of the Notes, substantially in the form of
Exhibit C-1 or Exhibit C-2 hereto and approved by the Agents and will file
such Term Sheet and, if agreed to in writing by the Company and the
Agents, any Alternative Issuer Free Writing Prospectus pursuant to Rule
433(d) under the Act within the time period prescribed by such Rule.
(n) The Company will prepare, with respect to any Notes to be sold
through or to the Agents pursuant to this Agreement, a Pricing Supplement
with respect to such Notes in a form previously approved by the Agents and
will timely file such Pricing Supplement pursuant to Rule 424(b) under the
Act.
(o) The Company will pay the required Commission filing fees
relating to the Notes within the time required by Rule 456(b)(1) under the
Act without regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r) under the Act.
(p) If required by Rule 430B(h) under the Act, the Company will
prepare and file a prospectus pursuant to Rule 424(b) under the Act not
later than may be required by such Rule; provided, however that to the
extent such prospectus names one or more Agents, the Company will not file
such prospectus without the prior approval of the Agents which consent
shall not be unreasonably withheld.
(q) The Company, in relation to any Notes that are to be listed on
any stock exchange will use its best efforts to arrange the admission to
listing of such Notes on such stock exchange and to maintain such listing
until the relevant Notes are no longer outstanding; provided that if it
should become impracticable or unduly burdensome to maintain any such
listing, the Company will use its best efforts to arrange and maintain
such listing for the relevant Notes on such other stock exchange as it and
the relevant Agent(s) may agree.
(r) The Company will make available to each Agent as soon as
practicable, but not later than 60 days after the close of each of the
first three fiscal quarters of each fiscal
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year of the Company and 135 days after the close of each fiscal year of
the Company, each of the following, each of which shall be dated as of the
date of the close of such fiscal quarter or fiscal year a letter of the
Company's independent registered public accounting firm, substantially in
the form of the letter referred to in Section 4(c). If requested by any
Agent, the Company will make available to each Agent as soon as
practicable, not later than 60 days after the close of each of the first
three fiscal quarters of each fiscal year of the Company or 135 days after
the close of each fiscal year of the Company: (i) the written opinion or
opinions of Robert J. Ingato, General Counsel of the Company, and Shearman
& Sterling LLP, or other counsel of the Company reasonably satisfactory to
the Agents, in form satisfactory to the Agents, substantially in the form
of the opinions referred to in Section 4(d) (which opinions may be in the
form of a confirmation that the opinions delivered the date hereof
pursuant to Section 4(d) remain in effect without modification) and (ii) a
certificate of the principal financial or accounting officer of the
Company substantially in the form of the certificate referred to in
Section 4(f).
4. Conditions of the Obligations of the Agents The obligations of
any Agent, as agent of the Company, at any time to solicit offers to purchase
the Notes, and the obligation of any Agent to purchase Notes as a Purchaser
pursuant to any Terms Agreement, will be subject to the accuracy, as of the date
hereof, as of the date of the effectiveness of any amendment to the Registration
Statement (including the filing of any document incorporated by reference into
the Prospectus), as of the date any supplement to the Prospectus is filed with
the Commission, as of the Time of Sale and as of the time of delivery of Notes
to any purchaser or to the Agents as Purchaser, of the representations and
warranties on the part of the Company herein (and, in the case of an obligation
of an Agent under a Terms Agreement, in or incorporated in such Terms Agreement
by reference), to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent
(other than the conditions specified in clauses (w), (x), (y) and (z) of
paragraph (b)(ii) below, which are conditions precedent to, and only to, the
obligations of an Agent to purchase Notes as a Purchaser pursuant to a Terms
Agreement):
(a) The Prospectus as amended or supplemented in relation to the
Notes shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
3(n) hereof; any final Term Sheet or Alternative Issuer Free Writing
Prospectus contemplated by Section 3(m) hereof, and any other material
required to be filed by the Company pursuant to Rule 433(d) under the Act,
shall have been filed with the Commission within the applicable time
periods prescribed for such filings by Rule 433; no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
instituted or, to the knowledge of the Company or such Agent, shall be
contemplated by the Commission; and no notice of objection of the
Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been
received by the Company; and all requests for additional information on
the part of the Commission shall have been complied with to the Agents'
reasonable satisfaction.
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(b) (i) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus or the Time of
Sale with respect to any Note or, if applicable, the date of any Terms
Agreement, there shall not have occurred any change, or any development
involving a prospective change, in or affecting the business, properties,
financial condition or results of operations of the Company or its
subsidiaries the effect of which is, in the reasonable judgment of such
Agent (which, in the case of any syndicated offering, shall be the lead
manager(s)), so material and adverse to the Company so as to make it
impracticable or inadvisable to proceed with the soliciting of offers to
purchase the Notes as contemplated by the Registration Statement and the
Prospectus; and (ii) subsequent to the sale date with respect to any Note
or, if applicable, the date of any Terms Agreement, (v) no public
announcement shall have been given of any intended or potential
downgrading or withdrawal in the credit rating accorded any of the
Company's debt securities, or no credit rating of any debt securities of
the Company shall have been lowered or withdrawn, by Moody's Investors
Service, Standard & Poor's Ratings Services or Fitch, Inc., (w) trading of
securities generally on the New York Stock Exchange or the National
Association of Securities Dealers Automated Quotations System, or any
exchange on which the Notes may be listed, shall not have been suspended
or materially limited, (x) a general moratorium on commercial banking
activities shall not have been declared by either federal or state
authorities, or if a material disruption in commercial banking or
securities settlement or clearance services in the United States has
occurred, (y) trading of any securities of the Company shall not have been
suspended on any exchange or in any over-the-counter market and (z) there
shall not have occurred any outbreak or escalation of hostilities or
national emergency or other calamity or crisis the effect of which on the
financial markets of the United States is, in the judgment of such Agent
(which, in the case of any syndicated offering, shall be the lead
manager(s)), such as to make it impracticable or inadvisable to market the
Notes.
(c) Such Agent shall have received a letter, dated as of the date
hereof, and in connection with its purchase of Notes as a Purchaser
pursuant to a Terms Agreement, dated as of the Purchase Date, of the
Company's independent registered public accounting firm, confirming that
they are an independent registered public accounting firm within the
meaning of the Act and the published Rules and Regulations and to the
effect that (i) in their opinion, the financial statements and financial
schedules examined by them and included in the Prospectus comply in form
in all material respects with the applicable accounting requirements of
the Act, the Exchange Act and the related published Rules and Regulations,
(ii) on the basis of their review (which does not constitute an
examination of financial statements in accordance with procedures
specified by the Public Company Accounting Oversight Board (United States)
(the "PCAOB") ) of the financial statements referred to below, inquiries
of officials of the Company responsible for financial and accounting
matters and other specified procedures, nothing came to their attention
that caused them to believe that (w) any unaudited consolidated condensed
financial statements included in the Prospectus do not comply in form in
all material respects with the applicable accounting requirements of the
Exchange Act as it applies to Forms 10-Q or 8-K and the related published
Rules and Regulations or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with
that of the audited consolidated financial statements included in the
Prospectus, or (x) with respect to the period after the date of the most
-15-
recent financial statements incorporated in the Registration Statement and
the Prospectus, there were any changes, when compared to the most recent
internal balance sheet, in the capital stock or increase in total debt of
the Company or any decreases in the consolidated total assets, finance
receivables, reserve for credit losses or shareholders' equity of the
Company as compared with the amounts shown on the most recent consolidated
balance sheet included or incorporated in the Registration Statement and
the Prospectus, or (y) with respect to the period after the date of the
most recent financial statements included or incorporated in the
Registration Statement and the Prospectus and subsequent to the most
recent internal balance sheet through a specified date not more than five
business days prior to the date of the letter there were any changes in
the capital stock or increase in total debt of the Company or any decrease
in the consolidated total assets, finance receivables, reserve for credit
losses or shareholders' equity of the Company as compared with the amounts
shown on the most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Prospectus (if the
Company is unable to quantify any such decrease, a statement to that
effect will be included in the letter), or (z) for the period from the
date of the most recent financial statements incorporated in the
Registration Statement and the Prospectus to such specified date there
were any quantifiable decreases, as compared with the corresponding period
in the preceding year, in consolidated finance income or net income of the
Company (if the Company is unable to quantify any such decrease, a
statement to that effect will be included in the letter), except in all
instances for changes or decreases which the Prospectus disclosed have
occurred or may occur or which are described in such letter and (iii) they
have compared specific dollar amounts (or percentages derived from such
dollar amounts) and other financial information included in the Prospectus
(in each case to the extent that such dollar amounts or percentages or
other financial information are derived from the general accounting
records of the Company and consolidated subsidiaries which are subject to
the internal controls of the accounting systems of the Company and
consolidated subsidiaries or are derived directly from such records by
analysis or computation, and are not directly traceable to the publicly
available audited consolidated financial statements of the Company or
unaudited condensed financial statements contained in its reports on Forms
10-Q or 8-K) with the results obtained from inquiries, a reading of such
general accounting records of the Company and consolidated subsidiaries
and other procedures specified in such letter and have found such dollar
amounts and percentages and other financial information to be in agreement
with such results, except as otherwise specified in such letter. All
financial statements included in material incorporated by reference into
the Prospectus shall be deemed included in the Prospectus for purposes of
this subsection.
(d) Such Agent shall have received an opinion of Shearman & Sterling
LLP (or other counsel of the Company reasonably satisfactory to such
Agent) and of Robert J. Ingato, General Counsel of the Company, each dated
as of the date hereof, the form of which is attached hereto as Exhibit A-1
and Exhibit A-2, respectively, and in connection with its purchase of
Notes as a Purchaser pursuant to a Terms Agreement, dated as of the
Purchase Date, of Robert J. Ingato, General Counsel of the Company, the
form of which is attached hereto as Exhibit A-2 and of Shearman & Sterling
LLP (or other counsel of the Company reasonably satisfactory to such
Agent), the form of which is attached hereto as Exhibit A-3.
-16-
(e) The Agents shall have received from Wilmer Cutler Pickering Hale
and Dorr LLP, counsel for the Agents, such opinion or opinions, dated as
of the date hereof, and in connection with its purchase of Notes as a
Purchaser pursuant to a Terms Agreement, dated as of the Purchase Date,
with respect to the Indentures, the Registration Statement, the Prospectus
and other related matters as they may require and the Company shall have
furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(f) Such Agent shall have received a certificate, dated as of the
date hereof, and in connection with its purchase of Notes as a Purchaser
pursuant to a Terms Agreement, a certificate dated as of the Purchase Date
of the principal financial or accounting officer of the Company in which
such officer shall state, to the best of his knowledge after reasonable
investigation, (i) that the representations and warranties of the Company
in this Agreement are true and correct as of the date of such certificate,
(ii) that the Company has complied with all agreements and satisfied all
conditions to the obligation of such Agent to solicit offers to purchase
the Notes, (iii) that no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission, (iv) no notice of objection of the Commission to the use
of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act has been received by the Company,
(v) that, subsequent to the date of the most recent financial statements
in the Prospectus, there has been no material adverse change, or any
development involving a prospective material adverse change, in or
affecting the business, properties, financial condition or results of
operations of the Company or its subsidiaries, except as set forth in or
contemplated by the Prospectus and (vi) that such officer has reviewed
each agreement or instrument to which the Company is a party or by which
it is bound which contains any covenant or restriction which limits or
restricts the Company's freedom to incur indebtedness, that the issuance
and sale by the Company of the Notes would not result in a breach of, or
constitute a default under, the provisions of any of such agreements or
instruments and that, with respect to any Notes in respect of which such
covenants or restrictions apply, attached thereto are calculations
demonstrating that, based upon the Company's latest available financial
statements, the issuance and sale of such Notes would not result in a
breach of, or constitute a default under, the provisions of any of such
agreements or instruments.
(g) The Agents shall have received from Shearman & Sterling LLP,
counsel for the Company, an opinion or opinions, dated as of the date
hereof, and in connection with its purchase of Notes as a Purchaser
pursuant to a Terms Agreement, dated as of the Purchase Date, to the
effect that, as of the date hereof, the description of United States
Federal income tax consequences set forth under "Material U. S. Federal
Income Tax Consequences" in the Prospectus Supplement is accurate in all
material respects.
The Company will furnish each Agent with such conformed copies of such opinions,
certificates, letters and documents as it reasonably requests.
In the event that, after the date hereof, the Company files any
further registration statements for the purpose of registering Notes and in
connection with which this Agreement is
-17-
included or incorporated by reference as an exhibit, the Company shall (i)
promptly comply with its obligations and take any steps as are required to be
taken by it pursuant to Sections 3(a), (d), (e) and (f) and (ii) after such
registration statement shall have become or been declared effective by the
Commission and at the time and on the date as shall be mutually agreed by the
Company and the Agents, deliver to each Agent and its counsel the opinions,
certificates, letters and other documents required to be delivered pursuant to
paragraphs (c), (d), (e) and (f) of this Section 4, provided that none of the
Agents will solicit offers to purchase the Notes registered pursuant to such
registration statement until such opinions, certificates, letters and other
documents shall have been so delivered.
In addition to the foregoing, the obligation of any person who has
agreed to purchase Notes through an Agent to consummate such purchase at the
time designated therefor is subject to the condition precedent that such Agent
has not chosen to cease soliciting offers to purchase Notes at such time owing
to failure of the conditions precedent to such solicitation as provided above.
5. Indemnification and Contribution
(a) The Company agrees to indemnify, defend and hold harmless you
and any person who controls you within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any loss, expense, liability or
claim (including the reasonable cost of investigation) which, jointly or
severally, you or any such other indemnified person may incur under the Act or
otherwise, insofar as such loss, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any General Disclosure Package, the
Prospectus or any amendment or supplement thereto, or arises out of or is based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except insofar as any such loss, expense, liability or claim arises out of or is
based upon any alleged untrue statement of a material fact contained (i) therein
in conformity with information furnished in writing by you to the Company
expressly for use in any of such documents or (ii) in any Form T-1 Statement of
Eligibility under the Trust Indenture Act of any Trustee or arises out of or is
based upon any alleged omission to state therein a material fact in connection
with such information required to be stated therein or necessary to make such
information not misleading. The Company's agreement to indemnify you or any such
other indemnified person as aforesaid is expressly conditioned upon it being
notified of the action in connection therewith brought against you or such
controlling person by letter or telegram or other facsimile transmission
addressed to the Company with reasonable promptness after the first legal
process which discloses the nature of the liability or claim shall have been
served upon you or such controlling person (or after it shall have received
notice of such service upon any agent designated by it), but failure so to
notify the Company shall not relieve the Company from any liability which it may
have to you or to such other indemnified person otherwise than on account of the
indemnity agreement contained in this Section 5.
The Company shall assume the defense of any suit brought to enforce
any such liability or claim, including the employment of counsel satisfactory to
you and the payment of all expenses. You or such other indemnified person
against whom such suit is brought shall have the right to employ one separate
counsel in any such suit and participate in the defense thereof, but
-18-
the fees and expenses of such counsel shall be at your expense or the expense of
such controlling person unless (i) the employment of such counsel has been
specifically authorized by the Company or (ii) the named parties to any such
suit (including any impleaded parties) include you or such controlling person
and the Company and you or such other indemnified person shall have been advised
by such counsel that there may be one or more legal defenses available to it
which are different from or additional to those available to the Company, in
which case the Company shall not have the right to assume the defense of such
action on your behalf or on the behalf of such other indemnified person, it
being understood, however, that the Company shall not, in connection with any
one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (and any required local counsel) for you and such other indemnified
persons, which firm (and local counsel, if any) shall be designated in writing
by you. The Company shall not be liable for any settlement of any such action
effected without its consent (which will not be unreasonably withheld or
delayed).
The Company agrees to notify you with reasonable promptness of the
commencement of any litigation or proceedings against the Company or any of its
officers or directors in connection with the issue and sale of the Notes or with
the Registration Statement or Prospectus.
(b) You represent and warrant that the information furnished in
writing by you to the Company expressly for use with reference to you in the
Registration Statement or the Prospectus does not contain any untrue statement
of a material fact and does not omit to state a material fact in connection with
such information required to be stated in the Registration Statement or the
Prospectus or necessary to make such information not misleading.
You severally agree to indemnify, defend and hold harmless the
Company, its directors and officers and any person who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
from and against any loss, expense, liability or claim (including the reasonable
cost of investigation) which, jointly or severally, the Company or any other
indemnified person may incur under the Act or otherwise, insofar as such loss,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, any General Disclosure Package, the Prospectus or any amendment or
supplement thereto which is in reliance on and in conformity with information
furnished in writing by you to the Company expressly for use with reference to
you, or arises out of or is based upon any omission or alleged omission to state
a material fact in connection with such information required to be stated in any
of such documents or necessary to make such information not misleading. Your
agreement to indemnify the Company and any other indemnified person as aforesaid
is expressly conditioned upon your being notified of the action in connection
therewith brought against the Company or any other indemnified person by letter,
telegram, or facsimile transmission addressed to it at its address furnished to
the Company for the purpose, with reasonable promptness after the first legal
process which discloses the nature of the liability or claim shall have been
served upon the Company or any other indemnified person (or after the Company or
any such person shall have received notice of such service on any agent
designated by the Company or any such person), but failure so to notify you
shall not relieve you from any liability which you may have to the
-19-
Company or any other indemnified person otherwise than on account of the
indemnity agreement contained in this Section 5.
You shall assume the defense of any suit brought to enforce any such
liability or claim, including the employment of counsel satisfactory to the
Company or such other person and the payment of all expenses. The Company or
other indemnified person against whom such suit is brought shall have the right
to employ separate counsel in any such suit and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the Company or such other indemnified person unless (i) the employment of such
counsel has been specifically authorized by you or (ii) the named parties to any
suit (including any impleaded parties) include the Company or such other
indemnified person and you, and the Company or such other indemnified person
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to you, in which case you shall not have the right to assume the
defense of such action on behalf of the Company or such other indemnified
person, it being understood, however, that you shall not, in connection with any
one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (and any required local counsel) for the Company and such person,
which firm (and local counsel, if any) shall be designated in writing by the
Company. You shall not be liable for any settlement of any such action effected
without your consent (which will not be unreasonably withheld or delayed).
(c) If the indemnification provided for in this Agreement is
unavailable to or insufficient to hold harmless an indemnified party under
subsections (a) and (b) above for any reason other than as specified therein in
respect of any losses, expenses, liabilities or claims referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, expenses, liabilities or claims (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and you on the other hand from the offering of the Notes
to which such losses, expenses, liabilities or claims relate or (ii) if the
allocation provided in clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of you on the other in connection with the statements or
omissions which resulted in such losses, expenses, liabilities or claims, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and you on the other shall be deemed to
be in the same proportion as the total net proceeds to the Company from sales of
the Notes to which such losses, expenses, liabilities or claims relate bears to
the aggregate commissions received by you pursuant to Section 2 hereof in
connection with the sale of such Notes. The relative fault of the Company on the
one hand and of you on the other shall be determined by reference to, among
other things, whether the untrue statement or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by you and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages and liabilities referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any claim or action.
-20-
The Company and you agree that it would not be just and equitable if
contribution pursuant to this Agreement were determined by pro rata allocation
(even if you were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. Notwithstanding the
provisions of this Agreement, you shall not be required to contribute any amount
in excess of the amount by which the total price at which the Notes to which
such losses, expenses, liabilities or claims relate, placed by you exceeds the
amount of the damages which you have otherwise been required to pay by reason of
an untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Your obligations in this subsection (c) to
contribute are several, in the same proportion which the amount of the Notes
which are the subject of the action and which were distributed to the public
through you pursuant to this Agreement bears to the total amount of such Notes
distributed to the public through all of you pursuant to this Agreement, and not
joint.
The obligations of the Company and you under this Section 5 shall be
in addition to any liability that the Company or you may otherwise have.
6. Position of the Agent Except for purchases pursuant to Section
2(b) hereof, in soliciting offers to purchase the Notes, each Agent is acting
individually and not jointly and is acting solely as agent for the Company, and
not as principal. Each Agent shall make reasonable efforts to assist the Company
in obtaining performance by each purchaser whose offer to purchase Notes has
been solicited by such Agent and accepted by the Company, but such Agent shall
not have any liability to the Company in the event any such purchase is not
consummated for any reason. Except for purchases pursuant to Section 2(b)
hereof, under no circumstances will such Agent be obligated to purchase any
Notes for its own account.
7. Termination This Agreement may be terminated at any time either
by the Company as to any Agent or, in the case of any Agent, by such Agent upon
the giving of written notice of such termination to the other parties hereto. In
the event of such termination, no party shall have any liability to the other
parties hereto, except as provided herein and except that, if at the time of
termination an offer to purchase any of the Notes has been accepted by the
Company but the time of delivery to the purchaser or its agent of the Note or
Notes relating thereto has not occurred, the Company's obligations provided
herein shall not be terminated. In the case of purchases pursuant to Section
2(b) hereof, the Company's obligations pursuant to Section 3 hereof shall not be
terminated so long as any Purchaser continues to hold the Note or Notes as
principal for its own account or for resale to others.
8. Representations, Warranties, Agreements, Indemnities and Other
Statements to Survive The respective representations, warranties, agreements,
indemnities and other statements of the Company or its officers and of each
Agent set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of any Agent or
the Company or any of the officers, directors or controlling persons referred to
above, and will survive delivery of and payment for the Notes. The provisions of
Sections 3(c), 3(f) and 5 hereof shall survive the termination or cancellation
of this Agreement.
-21-
9. Notices All communications hereunder will be in writing and will
be mailed, delivered or telegraphed and confirmed to the party receiving such
communication at its address indicated below:
CIT Group Inc.
1 CIT Drive
Livingston, New Jersey 07039
Attention: Robert J. Ingato, Executive Vice President and General
Counsel
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Attention: Medium-Term Note Desk
Telephone: (212) 526-9664
Telecopy: (212) 526-0943
Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Attention: Rock Fu
Telephone: (212) 847-6434
Telecopy: (212) 847-5184
with a copy to:
Lily Chang
Banc of America Securities LLC
40 West 57th Street, 27th Floor
New York, New York 10019
Telephone: (646) 313-8798
Telecopy: (212) 901-7881
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Attention: MTN Trading
Telephone: (212) 412-2663
Telecopy: (212) 412-7305
with a copy to:
Pamela Kendall
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
-22-
Telephone: (212) 412-7606
Telecopy: (212) 412-7680
Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, New York 10179
Attention: Jonathan Lieberman
Telephone: (212) 272-2703
Telecopy: (917) 849-1160
BNP Paribas Securities Corp.
787 Seventh Avenue
New York, New York 10019
Attention: Debt Capital Markets
Telephone: (212) 841-3320
Telecopy: (212) 841-3930
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Attention: Medium-Term Note Department
Telephone: (212) 816-5831
Telecopy: (212) 816-0949
Credit Suisse Securities (USA) LLC
11 Madison Avenue
New York, New York 10010
Attention: Short and Medium-Term Finance Department
Telephone: (212) 325-7198
Telecopy: (212) 743-5825
with a copy to:
Helena Willner
11 Madison Avenue
New York, New York 10010
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Attention: Debt Capital Markets
Telephone: (212) 250-8587
Telecopy: (212) 797-2202
Goldman, Sachs & Co.
85 Broad St.
27th Floor
New York, New York 10004
-23-
Attention: Nick Philip
Telephone: (212) 902-2525
Telecopy: (212) 902-3000
HSBC Securities (USA) Inc.
452 Fifth Avenue
New York, New York 10018
Attention: Medium Term Notes Desk
Telephone: (212) 525-3142
Telecopy: (212) 525-0238
with a copy to:
HSBC Securities (USA) Inc.
452 Fifth Avenue, 3rd Floor
New York, New York 10018
Attention: Andrew S. Lazerus
Telephone: (212) 525-3456
Telecopy: (646) 366-3338
J.P. Morgan Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: Transaction Execution Group
Telephone: (212) 834-5710
Telecopy: (212) 834-6702
LaSalle Financial Services, Inc.
55 East 52nd Street
New York, New York 10055
Attention: Rob Silverschotz
Telephone: (212) 409-6862
Telecopy: (212) 409-7303
Merrill Lynch, Pierce, Fenner & Smith Incorporated
4 World Financial Center, 15th Floor
New York, New York 10080
Attention: Global Transaction Management Group - Scott Primrose
Telephone: (212) 449-7476
Telecopy: (212) 449-2234
Morgan Stanley & Co. Incorporated
1585 Broadway, 4th Floor
New York, New York 10036
Attention: Manager - Continuously Offered Products
Telephone: (212) 761-2825
-24-
Telecopy: (212) 507-2409
with a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway, 29th Floor
New York, New York 10036
Attention: Investment Banking Information Center
Telephone: (212) 761-7830
Telecopy: (212) 507-2705
UBS Securities LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Fixed Income Syndicate
Telephone: (203) 719-1088
Telecopy: (203) 719-0495
Wachovia Capital Markets, LLC
301 South College Street
Charlotte, North Carolina 28288-0602
Attention: Travis Barnes
Telephone: (704) 715-8407
Telecopy: (704) 383-9165
10. Successors This Agreement will inure to the benefit of and be
binding upon the parties hereto, the officers, directors and controlling persons
referred to in Section 5 hereof and their respective heirs, executors,
administrators, successors and assigns, and no other person will have any right
or obligation hereunder except as provided in the first paragraph of this
Agreement.
11. Governing Law; Counterparts This Agreement shall be governed by
and construed in accordance with the laws of the State of New York. This
Agreement may be executed in counterparts and the executed counterparts shall
together constitute a single instrument.
Very truly yours,
CIT GROUP INC.
By /s/ Glen A. Votek
------------------
Name: Glen A. Votek
Title: Executive Vice President
and Treasurer
-25-
The foregoing is hereby
confirmed and accepted
as of the date specified above.
LEHMAN BROTHERS INC.
By /s/ Martin Goldberg
________________________________
Name: Martin Goldberg
Title: Senior Vice President
BANC OF AMERICA SECURITIES LLC
By /s/ Lily Chang
________________________________
Name: Lily Chang
Title: Principal
BARCLAYS CAPITAL INC.
By /s/ Pamela Kendall
________________________________
Name: Pamela Kendall
Title: Director
BEAR, STEARNS & CO. INC.
By /s/ Christopher O'Conner
_________________________________
Name: Christopher O'Conner
Title: Senior Managing Director
BNP PARIBAS SECURITIES CORP.
By /s/ Janet Strickland
_________________________________
Name: Janet Strickland
Title: Authorized Signatory
CITIGROUP GLOBAL MARKETS INC.
By /s/ Peter Kapp
_________________________________
Name: Peter Kapp
Title: Director
CREDIT SUISSE SECURITIES (USA) LLC
-26-
By /s/ Michael Cummings
-------------------------------------
Name: Michael Cummings
Title: Vice President
DEUTSCHE BANK SECURITIES INC.
By /s/ Erich Mauff
-------------------------------------
Name: Erich Mauff
Title: Managing Director
By /s/ Marc Fratepietro
-------------------------------------
Name: Marc Fratepietro
Title: Director
GOLDMAN, SACHS & CO.
By /s/ Goldman, Sachs & Co.
-------------------------------------
(Goldman, Sachs & Co.)
HSBC SECURITIES (USA) INC.
By /s/ Andrew Lazerus
-------------------------------------
Name: Andrew Lazerus
Title: Senior Vice President
J.P. MORGAN SECURITIES INC.
By /s/ Robert Bottamedi
-------------------------------------
Name: Robert Bottamedi
Title: Vice President
LASALLE FINANCIAL SERVICES, INC.
By /s/ Vincent Murray
-------------------------------------
Name: Vincent Murray
Title: Managing Director
-27-
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Gary Swidler
--------------------------------
Name: Gary Swidler
Title: Director
MORGAN STANLEY & CO. INCORPORATED
By /s/ Michael Fusco
---------------------------------
Name: Michael Fusco
Title: Executive Director
UBS SECURITIES LLC
By /s/ Spencer Haimes
----------------------------------
Name: Spencer Haimes
Title: Director
By /s/ Todd Mahoney
----------------------------------
Name: Todd Mahoney
Title: Director
WACHOVIA CAPITAL MARKETS, LLC
By /s/ Dan Norton
-----------------------------------
Name: Dan Norton
Title: Director
-28-
Exhibit A-1
[MTN Opinion of Shearman & Sterling LLP]
(i) The Company is a corporation duly incorporated and validly existing in
good standing under the laws of the State of Delaware with corporate power and
authority under such law to conduct its business as described in the Prospectus.
(ii) The Global Selling Agency Agreement has been duly authorized,
executed and delivered by the Company.
(iii) Each of the Senior Indenture and Subordinated Indenture has been
duly authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the applicable Trustee, constitutes a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms.
(iv) When the final terms of the Senior Notes and the Subordinated Notes
have been duly established and approved, and when such Senior Notes and
Subordinated Notes have been duly authorized and executed by the Company and
duly authenticated by the Trustee in accordance with the terms of the Senior
Indenture and Subordinated Indenture, as applicable, and delivered to and paid
for by the purchasers thereof pursuant to the Global Selling Agency Agreement,
the Senior Notes and the Subordinated Notes will constitute valid and binding
obligations of the Company, entitled to the benefits of such Indenture and
enforceable against the Company in accordance with their terms.
(v) The statements in the Prospectus under the caption "Description of
Debt Securities" and "Description of Series A Notes," insofar as such statements
constitute summaries of legal matters or documents referred to therein, fairly
summarize in all material respects the legal matters or documents referred to
therein.
(vi) Each of the Senior Indenture and the Subordinated Indenture has been
duly qualified under the Trust Indenture Act of 1939, as amended.
(vii) To our knowledge, as of the date hereof, no stop order suspending
the effectiveness of the Registration Statement has been issued under the Act,
and no proceedings for such purpose have been initiated or threatened by the
Commission.
(viii) Each of the Registration Statement and the Prospectus (other than
the financial statements and other financial or statistical data contained or
incorporated by reference therein or omitted therefrom and the Trustee's
Statements of Eligibility on Form T-1, as to which we express no opinion)
appears on its face to be appropriately responsive in all material respects to
the requirements of the Act and the applicable rules and regulations of the
Commission thereunder.
-29-
(ix) Each of the documents incorporated by reference in the Prospectus
(other than the financial statements and other financial or statistical data
contained or incorporated by reference therein or omitted therefrom, as to which
we express no opinion), at the time it was filed with the Commission, appears on
its face to have been appropriately responsive in all material respects to the
requirements of the Securities Exchange Act of 1934, as amended, and the
applicable rules and regulations of the Commission thereunder.
(x) The execution and delivery by the Company of the Global Selling Agency
Agreement and the Indentures do not, and the performance by the Company of its
obligations thereunder and the consummation of the transactions contemplated
thereby will not, (a) result in a violation of the Company's certificate of
incorporation or by-laws, (b) result in a violation of Generally Applicable Law
or (c) result in a breach of, a default under or the acceleration of (or entitle
any party to accelerate) the maturity of any obligation of the Company under, or
result in or require the creation of any lien upon or security interest in any
property of the Company pursuant to the terms of, any document or contract filed
as an exhibit to (i) the Company's annual report on Form 10-K/A for the year
ended December 31, 2004 or the Company's quarterly reports on Form 10-Q/A for
the quarterly periods ended March 31, 2005, June 30, 2005 and September 30, 2005
pursuant to Items 601(b)(4) or 601(b)(10) of Regulation S-K under the Act and
(ii) the Company's Current Report on Form 8-K filed with the Commission on
December 22, 2005.
(xi) The Company is not required to register as an investment company
under the Investment Company Act of 1940, as amended.
(xii) No authorization, approval or other action by, and no notice to or
filing with, any United States federal or New York governmental authority or
regulatory body is required for the due execution, delivery or performance by
the Company of the Global Selling Agency Agreement and the Indentures, except as
have been obtained and are in full force and effect under the Act or the Trust
Indenture Act or as may be required under the state securities or blue sky laws
of any jurisdiction in the United States in connection with the offer and sale
of the Notes.
The opinions set forth above in paragraphs (iii) and (iv) are subject to
(a) the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally (including
without limitation all laws relating to fraudulent transfers), and (b) the
effect of general principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
No facts came to our attention which gave us reason to believe that (i)
the Registration Statement (other than the financial statements and other
financial or statistical data contained or incorporated by reference therein or
omitted therefrom and the Trustee's Statements of Eligibility on Form T-1, as to
which we have not been requested to comment), as of the date such Registration
Statement became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or (ii) the Prospectus (other than
the financial statements and other financial or statistical data contained or
incorporated by reference therein or omitted therefrom,
-30-
as to which we have not been requested to comment), as of its date and the date
hereof, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
-31-
Exhibit A-2
[Opinion of CIT's General Counsel]
(i) The Company is duly qualified or licensed and in good standing as a
foreign corporation in each jurisdiction where its business requires such
qualification or licensing, except where the failure to be so qualified,
licensed or in good standing would not have a material adverse effect on the
business, operations, assets or financial condition of the Company.
(ii) Each of the Company's subsidiaries that is a "significant subsidiary"
(as such term is defined in Rule 1-02 of Regulation S-X under the Act), is
validly existing, has the corporate power to transact the business in which it
is engaged, is duly qualified and in good standing as a foreign corporation in
each of the several states and jurisdictions where its business requires such
qualifications, where its business requires such licensing and where the failure
to be so qualified or licensed would have a material adverse effect on the
consolidated financial position and results of operations of the Company.
(iii) To my knowledge there are no legal or governmental proceedings
required to be described in the Prospectus which are not described as required,
or any contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required.
-32-
Exhibit A-3
[Opinion of Shearman & Sterling LLP]
(i) The Company is a corporation duly incorporated, validly existing and
in good standing under the law of the State of Delaware with corporate power and
authority under such law to conduct its business as described in the Prospectus.
(ii) The Company (a) has the corporate power to execute, deliver and
perform its obligations under each of the Terms Agreement, the Global Selling
Agency Agreement, the Indenture, the Notes, the Registration Statement, the
Prospectus, including any prospectus supplement thereto and the Pricing
Supplement (each an "Opinion Document" and collectively, the "Opinion
Documents"), to which it is a party and (b) has taken all corporate action
necessary to authorize the execution, delivery and performance of its
obligations under each Opinion Document to which it is a party.
(iii) The execution and delivery by the Company of each Opinion Document
to which it is a party do not, and the performance by the Company of its
obligations thereunder and the consummation of the transactions contemplated
thereby will not, (a) result in a violation of the Company's certificate of
incorporation or by-laws, (b) result in a violation of Generally Applicable Law
or (c) result in a breach of, a default under or the acceleration of (or entitle
any party to accelerate) the maturity of any obligation of the Company under, or
result in or require the creation of any lien upon or security interest in any
property of the Company pursuant to the terms of, any document or contract filed
as an exhibit, pursuant to Items 601(b)(4) or 601(b)(10) of Regulation S-K under
the Act, to the Company's most recently filed annual report on Form 10-K or the
Company's quarterly reports on Form 10-Q for the quarterly periods ended since
the filing date of the Company's most recently filed annual report on Form 10-K.
(iv) No authorization, approval or other action by, and no notice to or
filing with, any United States federal or New York governmental authority or
regulatory body is required for the due execution, delivery or performance by
the Company of any Opinion Document to which it is a party, except as have been
obtained and are in full force and effect under the Act or the Trust Indenture
Act or as may be required under the state securities or "blue sky" laws of any
jurisdiction in the United States in connection with the offer and sale of the
Notes.
(iv) To our knowledge, as of the date hereof, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Act, and
no proceedings for such purpose have been initiated or threatened by the
Commission.
(v) Each of the Global Selling Agency Agreement and the Terms Agreement
has been duly executed and delivered by the Company.
(vi) The Indenture has been duly executed and delivered and is the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms.
(vii) The Notes have been duly executed by the Company and, when
authenticated by the Trustee in accordance with the Indenture and delivered and
paid for as provided in the Global
-1-
Selling Agency Agreement and the Terms Agreement, the Notes will be the legal,
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms and entitled to the benefits of the Indenture.
(viii) The Company is not and, after giving effect to the issuance of the
Notes and the use of proceeds therefrom, as specified in the Prospectus, will
not be required to register as an investment company under the Investment
Company Act of 1940, as amended.
(ix) The Indenture has been duly qualified under the Trust Indenture Act.
(x) The description of the Notes and the Indenture in the Prospectus, in
each case, insofar as such statements constitute summaries of legal matters or
documents referred to therein, fairly summarize in all material respects the
legal matters or documents referred to therein.
The opinions set forth above in paragraphs (vii) and (viii) are subject to
(a) the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally (including
without limitation all laws relating to fraudulent transfers), and (b) the
effect of general principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
No facts came to our attention which gave us reason to believe that (i)
the Registration Statement (other than the financial statements and other
financial or statistical data contained or incorporated by reference therein or
omitted therefrom and the Trustee's Statement of Eligibility on Form T-1, as to
which we have not been requested to comment), as of the date such Registration
Statement was declared effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the prospectus
relating to the Notes included in the Registration Statement and the prospectus
supplement relating to the Notes heretofore filed with the Commission (other
than the financial statements and other financial or statistical data contained
or incorporated by reference therein or omitted therefrom, as to which we have
not been requested to comment) together with the Term Sheet and/or any
Alternative Issuer Free Writing Prospectus, as of the Time of Sale, contained
any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (iii) the
Prospectus (other than the financial statements and other financial or
statistical data contained or incorporated by reference therein or omitted
therefrom, as to which we have not been requested to comment), as of its date,
and as of the date hereof, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
-2-
EXHIBIT B
CIT Group Inc.
Global Medium-Term Notes
Due 9 Months or More from Date of Issue
TERMS AGREEMENT
________ __, 20__
CIT Group Inc.
1 CIT Drive
Livingston, New Jersey 07039
Attention: ________
Subject in all respects to the terms and conditions of the Global Selling
Agency Agreement dated _____________, 2006, among Lehman Brothers Inc., Banc of
America Securities LLC, Barclays Capital Inc., Bear, Stearns & Co. Inc., BNP
Paribas Securities Corp., Citigroup Global Markets Inc., Credit Suisse
Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman, Sachs & Co., HSBC
Securities (USA) Inc., J.P. Morgan Securities Inc., LaSalle Financial Services,
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated, UBS Securities LLC and Wachovia Capital Markets, LLC
(individually, an "Agent", and collectively, the "Agents") and you (the
"Agreement"), the undersigned agrees to purchase the following Notes of CIT
Group Inc.:
Aggregate Principal Amount:
Currency or Currency Unit:
Interest Rate or Method of Determining:
Date of Maturity:
Interest Payment Dates:
-3-
Regular Record Dates:
Purchase Price: ________% of Principal Amount [plus accrued interest from
________, 20__]
Issue Price:
Time of Sale:
Closing Date:
Trustee, Authenticating and Paying Agent:
Method of Payment:
Modification, if any, in the
requirements to deliver the
documents specified in Sections
4(c), (d) or (f) of the Agreement:
Other terms:
1. The Issuer hereby appoints [underwriters who are not a party to the
Agreement] as agents and principals (together with [underwriters who are a party
to the Agreement], the "Underwriters") under the Agreement in connection with
the purchase by the Underwriters of $[________] aggregate principal amount of
[ ] Notes due [_________] (the "Notes"). The Issuer agrees that, with respect to
the Notes and regardless of whether such Underwriter was named as an Agent under
the Agreement, the Underwriters shall be entitled to the benefit of the
representations and warranties, agreements and indemnities (including
contribution) by the Issuer in favor of the Agents set forth in the Agreement to
the extent as if each such Underwriter had been named as Agent thereunder. In
addition, the Issuer agrees that, regardless of whether such Underwriter was
named as a Purchaser under the Agreement, the Underwriters' commitment to
purchase the Notes shall be subject to the terms and conditions set forth in the
Agreement as if each such Underwriter had been named as Purchaser thereunder.
The Underwriters agree that, with respect to the Notes and regardless of whether
such Underwriter was named as an Agent under the Agreement, the Issuer shall be
entitled to the benefit of the representations and warranties, agreements and
indemnities by the Agents in favor of the Issuer set forth in the Agreement to
the extent as if each such Underwriter had been named as Agent thereunder.
2. The Issuer agrees to sell to the Underwriters, and the Underwriters
each severally agree to purchase the principal amount of the Notes set forth
below opposite their respective names:
-4-
Underwriters of Notes Principal Amount
--------------------- of
Notes
-----
[______________]..................................... $
[______________].....................................
[______________].....................................
[______________].....................................
Total......................................... $
3. The parties agree that for purposes of the Agreement the term sheet
attached hereto as Schedule A shall constitute the Term Sheet, and neither the
Issuer nor any Underwriter has produced or issued any other "issuer free writing
prospectus," as defined in Rule 433 under the Act, relating to the Notes in the
form filed or required to be filed with the Commission or, if not required to be
filed, in the form retained in the Company's records pursuant to Rule 433(g).
4. If any Agent or Agents default in their obligations to purchase the
Notes agreed to be purchased by such Agent or Agents hereunder and the aggregate
principal amount of Notes which such defaulting Agent or Agents agreed but
failed to purchase does not exceed 10% of the total principal amount of Notes,
the Agents may make arrangements satisfactory to the Issuer for the purchase of
such Notes by other persons, including any of the Agents, but if no such
arrangements are made by the Closing Date, the nondefaulting Agents shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Notes which such defaulting Agents agreed but failed to purchase.
If any Agent or Agents so default and the aggregate principal amount of Notes
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of Notes and arrangements satisfactory to the Agents and the
Issuer for the purchase of such Notes by other persons are not made within 36
hours after such default, this Terms Agreement will terminate without liability
on the part of any nondefaulting Agent or the Issuer, except that the Issuer
will continue to be liable for the payment of expenses to the extent set forth
in Section 3(f) of the Agreement. As used in this Terms Agreement, the term
"Underwriter" includes any person substituted for an Agent under this Section.
Nothing herein will relieve a defaulting Agent from liability for its default.
Listing:
-5-
[Name of Agent or Agents]
BY: _____________]
[Name of Agent or Agents]
BY: _____________]
Accepted:
CIT Group Inc.
BY: _______________
Title: ________
-6-
EXHIBIT C-1
FORM OF TERM SHEET
FIXED RATE NOTE
Filed under Rule 433
File No. 333-131159
Issuer: CIT Group Inc.
Principal Amount: $[ ]
Type: SEC Registered - Registration Statement
No. 333-131159
Proceeds to Issuer: [ ]%
Underwriters' Commission: [ ]%
Issue Price: [ ]%
Pricing Date: [ ]
Settlement Date: [ ]
Maturity Date: [ ]
Interest Rate: [ ]
Spread to Treasury: [ ]
[Benchmark Treasury]: [ ]
[Yield to Maturity]: [ ]
Specified Currency: [ ]
Interest Payment Dates: [ ]
Accrual of Interest: [ ]
Minimum Denomination: [ ]
-7-
Exchange Listing: [ ]
------------------------
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting EDGAR on the
SEC Web site at www.sec.gov. Alternatively, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you
request it by calling [ ] toll free [ ].
-8-
EXHIBIT C-2
FORM OF TERM SHEET
FLOATING RATE NOTE
Filed under Rule 433
File No. 333-131159
Issuer: CIT Group Inc.
Principal Amount: $[ ]
Type: SEC Registered - Registration Statement
No. 333-131159
Proceeds to the Issuer: $[ ]
Underwriters' Commission: [ ]%
Issue Price: [ ]%
Pricing Date: [ ]
Settlement Date: [ ]
Maturity Date: [ ]
Specified Currency: [ ]
Interest Payment Dates: [ ]
First Payment Date: [ ]
Accrual of Interest: [ ]
Interest Rate Basis: [ ]
Index Maturity: [ ]
Spread: [ ]
-9-
Interest Rate Calculation: [ ]
Initial Interest Rate: [ ]
Interest Reset Dates: [ ]
Interest Determination Date: [ ]
Calculation Date: [ ]
Minimum Denomination: [ ]
Maximum Interest Rate: [ ]
Minimum Interest Rate: [ ]
Exchange Listing: [ ]
Other Provisions: [ ]
------------------------
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting EDGAR on the
SEC Web site at www.sec.gov. Alternatively, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you
request it by calling [ ] toll free [ ].
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SCHEDULE I
Schedule of Indentures
Senior Indenture
Indenture, dated as of January 20, 2006, between CIT Group Inc., a
Delaware corporation and JPMorgan Chase Bank, N.A., as Trustee.
Subordinated Indenture
Indenture, dated as of January 20, 2006, between CIT Group Inc., a
Delaware corporation and JPMorgan Chase Bank, N.A., as Trustee.
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SCHEDULE S
OFFERING RESTRICTIONS
Each Agent agrees that it will not offer, sell, or deliver any of the
Notes, directly or indirectly, or distribute the Prospectus Supplement, the
Prospectus, any Pricing Supplement or any other offering material relating to
the Notes, in or from any jurisdiction except under circumstances that will, to
the best of the Agent's knowledge and belief, result in compliance with the
applicable laws and regulations and which will not impose any obligations on the
Company except as set forth in the Global Selling Agency Agreement.
European Economic Area
In relation to each Member State of the European Economic Area which
has implemented the Prospectus Directive (each, a "Relevant Member State") each
Agent has represented and agreed, and each further Agent appointed under the
Program will be required to represent and agree, that with effect from and
including the date on which the Prospectus Directive is implemented in that
Relevant Member State (the "Relevant Implementation Date") it has not made and
will not make an offer of Notes to the public in that Relevant Member State
except that it may, with effect from and including the Relevant Implementation
Date, make an offer of Notes to the public in that Relevant Member State:
(a) in (or in Germany, where the offer starts within) the period
beginning on the date of publication of a prospectus in relation to those Notes
which has been approved by the competent authority in that Relevant Member State
or, where appropriate, approved in another Relevant Member State and notified to
the competent authority in that Relevant Member State, all in accordance with
the Prospectus Directive and ending on the date which is 12 months after the
date of such publication;
(b) at any time to legal entities which are authorized or regulated
to operate in the financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities;
(c) at any time to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year; (2) a total
balance sheet of more than (euro)43,000,000 and (3) an annual net turnover of
more than (euro)50,000,000 as shown in its last annual or consolidated accounts;
or
(d) at any time in any other circumstances which do not require the
publication by the Company of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the purposes of this provision, the expression an "offer of
Notes to the public" in relation to any Notes in any Relevant Member State means
to communication in any form and by any means of sufficient information on the
terms of the offer and the Notes to be offered so as to enable an investor to
decide to purchase or subscribe the Notes, as the same may be varied in that
Member State by any measure implementing the Prospectus Directive in that Member
State
-12-
and the expression "Prospectus Directive" means Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant Member State.
United Kingdom
Each Agent represents, agrees and covenants that it and each of its
affiliates:
1. No deposit taking: in relation to any notes which have a maturity of
less than one year, (i) it is a person whose ordinary activities involve it in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of its business and (ii) it has not offered or sold and will
not offer or sell any notes other than to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or who it is reasonable
to expect will acquire, hold, manage or dispose of investments (as principal or
agent) for the purposes of their businesses where the issue of the notes would
otherwise constitute a contravention of Section 19 of the Financial Services and
Markets Act of 2000 (the "FSMA") by the Company;
2. Financial promotion: it has only communicated or caused to be
communicated and will only communicate or cause to be communicated an invitation
or inducement to engage in investment activity (within the meaning of Section 21
of FSMA received by it in connection with the issue or sale of any Notes in
circumstances in which Section 21(1) of the FSMA does not, or in the case of the
Company, would not, if it was not an authorized institution, apply to the
Company; and
3. General compliance: it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation to any
Notes in, from or otherwise involving the United Kingdom.
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EXHIBIT I
CIT GROUP INC.
Global Medium-Term Note Administrative Procedures
Global Medium-Term Notes (the "Senior Notes") and Global Medium-Term
Subordinated Notes (the "Subordinated Notes"; the Senior Notes and the
Subordinated Notes are referred to collectively herein as the "Notes"), Due 9
Months or More from Date of Issue are to be offered on a continuing basis by CIT
Group Inc. (the "Company"). Lehman Brothers Inc., Banc of America Securities
LLC, Barclays Capital Inc., Bear, Stearns & Co. Inc., BNP Paribas Securities
Corp., Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC,
Deutsche Bank Securities Inc., HSBC Securities (USA) Inc., Goldman, Sachs & Co.,
J.P. Morgan Securities Inc., LaSalle Financial Services, Inc., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated, UBS
Securities LLC and Wachovia Capital Markets, LLC (individually, an "Agent", and
collectively, the "Agents") have agreed to use reasonable best efforts to
solicit purchases of the Notes. The Agents will not be obligated to purchase
Notes for their own accounts. The Notes are being sold pursuant to a Global
Selling Agency Agreement between the Company and the Agents dated January 20,
2006 (the "Selling Agency Agreement"), and have been, or prior to sale will be,
registered with the Securities and Exchange Commission (the "Commission"). J.P.
Morgan Trust Company, National Association (the "Senior Trustee") is the trustee
under the indenture described on Schedule I covering the Senior Notes (the
"Senior Indenture"). The Company may change or add trustees to Schedule I
attached hereto with the consent of the Agents, which consent shall not be
unreasonably withheld. J.P. Morgan Trust Company, National Association (the
"Subordinated Trustee") is the trustee under the indenture described on Schedule
I covering the Subordinated Notes (the "Subordinated Indenture"). The Senior
Indenture and the Subordinated Indenture are collectively referred to herein as
the "Indentures". The Senior Trustee and the Subordinated Trustee, including any
agent acting for them, are each referred to herein as a "Trustee". The banks
listed on Schedule II attached hereto (individually, a "Bank" and collectively,
the "Banks") may act as the registrars, paying agents, exchange rate agents and
authenticating agents for the Notes. The Company may change or add banks to
Schedule II. The Company may appoint more than one Bank to act as the registrar,
paying agent, exchange rate agent and authenticating agent, which Bank may or
may not be the same as the Trustee for the Notes.
Each Note will be represented by either a Global Note (as defined
hereinafter) delivered to a Bank as agent for The Depository Trust Company
("DTC"), Clearstream Banking, societe anonyme ("Clearstream"), or Euroclear Bank
S.A./N.V. ("Euroclear") (each of DTC, Clearstream and Euroclear, a
"Depositary"), and recorded in the book-entry system maintained by the
applicable Depositary (a "Book-Entry Note") or a certificate delivered to the
holder thereof or a person designated by such holder (a "Certificated Note").
Only Notes denominated and payable in U.S. dollars may be issued as Book-Entry
Notes. An owner of a Book-Entry Note will not be entitled to receive a
certificate representing such Note.
The procedures to be followed during, and the specific terms of, the
solicitation of offers to purchase by the Agents and the sale as a result
thereof by the Company are explained
-14-
below. Administrative and record-keeping responsibilities will be handled for
the Company by its Treasury Department. The Company will advise the Agents, the
Banks and the Trustees of those persons handling administrative responsibilities
with whom the Agents, the Banks and the Trustees are to communicate regarding
orders to purchase Notes and the details of their delivery.
Administrative procedures and specific terms of the offering are
explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof, as adjusted in accordance
with changes in the applicable Depositary's operating requirements, and
Certificated Notes will be issued in accordance with the administrative
procedures set forth in Part II hereof. Unless otherwise defined herein, terms
defined in the Indentures and the Notes shall be used herein as therein defined.
Notes for which interest is calculated on the basis of a fixed interest rate,
which may be zero, are referred to herein as "Fixed Rate Notes". Notes for which
interest is calculated on the basis of a floating interest rate are referred to
herein as "Floating Rate Notes". To the extent the procedures set forth below
conflict with the provisions of the Notes, the Indentures, the applicable
Depositary's operating requirements or the Selling Agency Agreement, the
relevant provisions of the Notes, the Indentures, the applicable Depositary's
operating requirements or the Selling Agency Agreement, as the case may be,
shall control.
PART I
Administrative Procedures for
Book-Entry Notes
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Clearstream or
Euroclear, one or more Banks will perform the custodial, document control and
administrative functions described below with respect to particular Notes, in
accordance with their respective obligations under a Letter of Representations
from the Company and each such Bank to the applicable Depositary dated as of the
date hereof, a Global Medium-Term Note Certificate Agreement between such Bank
and the applicable Depositary, and the Banks' obligations as participants in
such Depositary, including such Depositary's settlement procedures.
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
the Company will issue a single global Note in fully
registered form without coupons (a "Global Note")
representing up to $500,000,000 principal amount of all
such Book-Entry Notes that have the same original issue
date, original issue discount provisions, if any,
Interest Payment Dates, Record Dates, Interest Payment
Period, redemption or repayment provisions, if any,
Maturity Date, priority and, in the case of Fixed Rate
Notes, interest rate, or, in the case of Floating Rate
Notes, initial interest rate, interest rate basis,
Index Maturity, Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier, if any, minimum
interest rate, if any, and maximum interest rate, if
any (collectively, the
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"Terms"). Each Global Note will be dated and issued as
of the date of its authentication by the Bank acting
as authenticating agent for such Note. Each Global
Note will bear an original issue date, which will be
(i) with respect to an original Global Note (or any
portion thereof), the original issue date specified in
such Global Note and (ii) following a consolidation of
Global Notes, with respect to the Global Note
resulting from such consolidation, the most recent
Interest Payment Date to which interest has been paid
or duly provided for on the predecessor Global Notes,
regardless of the date of authentication of such
resulting Global Note. No Global Note will represent
(i) both Fixed Rate Book-Entry Notes and Floating Rate
Book-Entry Notes or (ii) any Certificated Note.
Identification The Company has arranged with the CUSIP Service Bureau
Numbers: of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of a series of CUSIP
numbers, which series consists of approximately 900
CUSIP numbers and relates to the Global Notes
representing Book-Entry Notes. The Company has obtained
from the CUSIP Service Bureau a written list of such
reserved CUSIP numbers and will assign CUSIP numbers to
Global Notes as described below under Settlement
Procedure "B" and communicate such assignment to the
applicable Bank and DTC. DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that
the Company has assigned to Global Notes. At any time
when fewer than 100 of the reserved CUSIP numbers
remain unassigned to the Global Notes, and, if it deems
necessary, the Company will reserve additional CUSIP
numbers for assignment to the Global Notes. Upon
assigning such additional CUSIP numbers, the Company
shall communicate such assignment to the applicable
Bank and DTC.
Registration: Global Notes will be issued only in fully registered
form without coupons. Each Global Note will be
registered in the name of a nominee for the applicable
Depositary, on the securities register for the Notes
maintained under the applicable Indenture. The
beneficial owner of a Book-Entry Note (or one or more
indirect participants in the applicable Depositary
designated by such owner) will designate one or more
participants in the applicable Depositary (with respect
to such Book-Entry Note, the "Participants") to act as
agent or agents for such owner in connection with the
book-entry system maintained by the applicable
Depositary, and the applicable Depositary will
-16-
record in book-entry form, in accordance with
instructions provided by such Participants, a credit
balance with respect to such beneficial owner in such
Book-Entry Note in the account of such Participants.
The ownership interest of such beneficial owner (or
such Participant) in such Book-Entry Note will be
recorded through the records of such Participants or
through the separate records of such Participants and
one or more indirect participants in such Depositary.
Transfers: Transfers of a Book-Entry Note will be accomplished by
book entries made by the applicable Depositary and, in
turn, by Participants (and in certain cases, one or
more indirect participants in the applicable
Depositary) acting on behalf of beneficial transferors
and transferees of such Note.
Exchanges: The applicable Bank may deliver to the applicable
Depositary and the CUSIP Service Bureau at any time a
written notice of consolidation (a copy of which shall
be attached to the resulting Global Note described
below) specifying (i) the CUSIP numbers of two or more
outstanding Global Notes that represent (A) Fixed Rate
Book-Entry Notes having the same Terms and for which
interest has been paid to the same date or (B) Floating
Rate Book-Entry Notes having the same Terms and for
which interest has been paid to the same date, (ii) a
date, occurring at least thirty days after such written
notice is delivered and at least thirty days before the
next Interest Payment Date for such Book-Entry Notes,
on which such Global Notes shall be exchanged for a
single replacement Global Note and (iii) a new CUSIP
number, obtained from the Company, to be assigned to
such replacement Global Note. Upon receipt of such a
notice, the applicable Depositary will send to its
participants (including such Bank) a written
reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified
exchange date, such Bank will deliver to the CUSIP
Service Bureau a written notice setting forth such
exchange date and such new CUSIP number and stating
that, as of such exchange date, the CUSIP numbers of
the Global Notes to be exchanged will no longer be
valid. On the specified exchange date, such Bank will
exchange such Global Notes for a single Global Note
bearing the new CUSIP number and the CUSIP numbers of
the exchanged Global Notes will, in accordance with
CUSIP Service Bureau procedures, be canceled and not
immediately
-17-
reassigned. Notwithstanding the foregoing, if the
Global Notes to be exchanged exceed $500,000,000 in
aggregate principal amount, one Global Note will be
authenticated and issued to represent each $500,000,000
of principal amount of the exchanged Global Notes and
an additional Global Note will be authenticated and
issued to represent any remaining principal amount of
such Global Notes (see "Denominations" below).
Maturities: Each Book-Entry Note will mature on a date not less
than nine months after the settlement date for such
Note.
Denominations: Book-Entry Notes will be issued in principal amounts of
$1,000 and integral multiples of $1,000 in excess
thereof, or, in the case of Foreign Currency Notes, in
the denominations indicated in the applicable Pricing
Supplement (defined below) to the Prospectus (defined
below). Global Notes will be denominated in principal
amounts not in excess of $500,000,000. If one or more
Book-Entry Notes having an aggregate principal amount
in excess of $500,000,000 would, but for the preceding
sentence, be represented by a single Global Note, then
one Global Note will be authenticated and issued to
represent each $500,000,000 principal amount of such
Book-Entry Note or Notes and an additional Global Note
will be authenticated and issued to represent any
remaining principal amount of such Book-Entry Note or
Notes. In such a case, each of the Global Notes
representing such Book-Entry Note or Notes shall be
assigned the same CUSIP number.
Interest: General. Interest, if any, on each Book-Entry Note
will accrue from the original issue date for the first
interest period or the last date to which interest has
been paid, if any, for each subsequent interest period,
on the Global Note representing such Book-Entry Note,
and will be calculated and paid in the manner described
in such Book-Entry Note and in the Prospectus relating
to the Notes, dated January 19, 2006 of the Company, as
supplemented by a Prospectus Supplement, dated January
20, 2006 (together, and as further amended or
supplemented from time to time, the "Prospectus"), as
supplemented by the applicable final term sheet
reflecting the terms of such Note (the "Term Sheet")
and applicable Pricing Supplement (the "Pricing
Supplement"). Unless otherwise specified therein, each
payment of interest on a Book-Entry Note will include
interest accrued to but
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excluding the Interest Payment Date (provided that, in
the case of Floating Rate Book-Entry Notes which reset
daily or weekly, interest payments will include accrued
interest to and including the Record Date immediately
preceding the Interest Payment Date) or to but
excluding Maturity (other than a Maturity of a Fixed
Rate Book-Entry Note occurring on the 31st day of a
month, in which case such payment of interest will
include interest accrued to but excluding the 30th day
of such month). Interest payable at the Maturity of a
Book-Entry Note, other than on a day that would
otherwise be an Interest Payment Date, will be payable
to the person to whom the principal of such Note is
payable. Standard & Poor's Corporation will use the
information received in the pending deposit message
described under Settlement Procedure "C" below in order
to include the amount of any interest payable and
certain other information regarding the related Global
Note in the appropriate (daily or weekly) bond report
published by Standard & Poor's Corporation.
Record Dates. Unless otherwise specified in the
applicable Term Sheet and Pricing Supplement, the
Record Date with respect to any Interest Payment Date
shall be the date fifteen calendar days immediately
preceding such Interest Payment Date.
Interest Payment Dates on Fixed Rate Book-Entry Notes.
Unless otherwise specified pursuant to Settlement
Procedure "A" below, interest payments on Fixed Rate
Book-Entry Notes will be made semiannually on January
15 and July 15 of each year and at Maturity; provided,
however, that, unless otherwise specified in the
applicable Pricing Supplement, in the case of a Fixed
Rate Book-Entry Note issued between a Record Date and
an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following the
next succeeding Record Date.
Interest Payment Dates on Floating Rate Book-Entry
Notes. Unless otherwise specified in the applicable
Term Sheet and Pricing Supplement, interest payments
will be made on Floating Rate Book-Entry Notes monthly,
quarterly, semi-annually or annually and will be
payable on the dates established by the Company on the
date of issue and set forth therein and in the
applicable Term Sheet and Pricing Supplement; provided,
however, that if an Interest Payment Date for a
Floating Rate Book-Entry Note would
-19-
otherwise be a day that is not a business day with
respect to such Floating Rate Book-Entry Note, such
Interest Payment Date will be the next succeeding
business day with respect to such Floating Rate
Book-Entry Note, except that in the case of a Floating
Rate Book-Entry Note for which the interest rate basis
is LIBOR, if such business day is in the next
succeeding calendar month, such Interest Payment Date
will be the immediately preceding business day; and
provided further, that in the case of a Floating Rate
Book-Entry Note issued between a Record Date and an
Interest Payment Date, the first interest payment will
be made on the Interest Payment Date following the next
succeeding Record Date.
Notice of Interest Rates. Promptly after each Interest
Determination Date for Floating Rate Book-Entry Notes,
the Company, as Calculation Agent, will notify the
applicable Bank and Standard & Poor's Corporation of
the interest rates determined on such Interest
Determination Date.
Calculation of Fixed Rate Book-Entry Notes. Unless otherwise specified
Interest: in the applicable Term Sheet and Pricing Supplement,
interest on Fixed Rate Book-Entry Notes (including
interest for partial periods) will be calculated on the
basis of a 360-day year of twelve 30-day months.
Floating Rate Book-Entry Notes. Interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the form of Notes. Interest on Floating
Rate Book-Entry Notes, except as otherwise set forth
therein, will be calculated on the basis of actual days
elapsed and a year of 360 days, except that in the case
of a Floating Rate Book-Entry Note for which the
interest rate basis is the Treasury Rate, interest will
be calculated on the basis of the actual number of days
in the year.
Payments of Principal Payment of Interest Only. Promptly after each Record
and Interest: Date, the applicable Bank will deliver to the Company
and the applicable Depositary a written notice setting
forth, by CUSIP number, the amount of interest to be
paid on each Global Note on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with Maturity) and the total of such
amounts. The applicable Depositary will confirm the
amount payable on each Global Note on such Interest
Payment Date by reference to the appropriate (daily or
weekly) bond reports published by Standard &
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Poor's Corporation. The Company will pay to such Bank
the total amount of interest due on such Interest
Payment Date (other than at Maturity), and such Bank
will pay such amount to the applicable Depositary, at
the times and in the manner set forth below under
"Manner of Payment". If any Interest Payment Date for a
Book-Entry Note is not a business day, the payment due
on such day shall be made on the next succeeding
business day and no interest shall accrue on such
payment for the period from and after such Interest
Payment Date, except as previously discussed with
respect to certain Floating Rate Book-Entry Notes for
which the interest rate basis is LIBOR.
Payments at Maturity. On or about the first business
day of each month, each Bank will deliver to the
Company and the applicable Depositary a written list of
principal and interest to be paid on each Global Note
for which such Bank is responsible and which will
mature (on a Maturity or Redemption Date or otherwise)
in the following month. The Company and the applicable
Depositary will confirm the amounts of such principal
and interest payments with respect to each such Global
Note on or about the fifth business day preceding the
Maturity of such Global Note. On or before Maturity,
the Company will pay to such Bank the principal amount
of such Global Note, together with interest due at such
Maturity. Such Bank will pay such amount to the
applicable Depositary at the times and in the manner
set forth below under "Manner of Payment". If any
Maturity of a Global Note representing Book-Entry Notes
is not a business day, the payment due on such day
shall be made on the next succeeding business day and
no interest shall accrue on such payment for the period
from and after such Maturity. Promptly after payment to
the applicable Depositary of the principal and interest
due at Maturity of such Global Note, such Bank will
cancel such Global Note in accordance with the
applicable Indenture and so advise the Company.
Manner of Payment. The total amount of any principal
and interest due on Global Notes on any Interest
Payment Date or at Maturity shall be paid by the
Company to the applicable Bank in immediately available
funds no later than 9:30 A.M. (New York City time), in
the case of Dollar Denominated Notes, or 9:30 A.M.
(London time), in the case of Foreign Currency Notes,
on such date. The Company will make such payment on
such Global Notes by instructing such Bank to withdraw
funds from an
-21-
account maintained by the Company at such Bank or by
wire transfer to such Bank. The Company will confirm
any such instructions in writing to such Bank. Prior to
10:00 A.M. (New York City time), in the case of Dollar
Denominated Notes, or 10:00 A.M. (London time), in the
case of Foreign Currency Notes, on the date of Maturity
or as soon as possible thereafter, such Bank will pay
by separate wire transfer (using Fedwire message entry
instructions in a form previously specified by the
applicable Depositary) to an account at the Federal
Reserve Bank of New York previously specified by such
Depositary, in funds available for immediate use by the
Depositary, each payment of principal (together with
interest thereon) due on a Global Note on such date. On
each Interest Payment Date (other than at Maturity),
interest payments shall be made to the applicable
Depositary, in funds available for immediate use by the
Depositary, in accordance with existing arrangements
between the Bank and the Depositary. On each such date,
the applicable Depositary will pay, in accordance with
its operating procedures then in effect, such amounts
in funds available for immediate use to the respective
Participants in whose names the Book-Entry Notes
represented by such Global Notes are recorded in the
book-entry system maintained by the applicable
Depositary. None of the Company, the Trustees or such
Bank shall have any direct responsibility or liability
for the payment by the Depositary to such Participants
of the principal of and interest on the Book-Entry
Notes.
Withholding Taxes: The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in
the applicable Depositary or other person responsible
for forwarding payments and materials directly to the
beneficial owner of such Note.
Procedure for Rate The Company and the Agents will discuss from time to
Setting and Posting: time the aggregate principal amount of, the issuance
price of, and the interest rates to be borne by,
Book-Entry Notes that may be sold as a result of the
solicitation of orders by the Agents. If the Company
decides to set prices of, and rates borne by, any
Book-Entry Notes in respect of which the Agents are to
solicit orders (the setting of such prices and rates to
be referred to herein as "posting") or if the Company
decides to change prices or rates previously
-22-
posted by it, it will promptly advise the Agents of the
prices and rates to be posted.
Acceptance and Unless otherwise instructed by the Company, each Agent
Rejection of will advise the Company promptly by telephone of all
Orders: orders to purchase Book-Entry Notes received by such
Agent, other than those rejected by it in whole or in
part in the reasonable exercise of its discretion.
Unless otherwise agreed by the Company and the Agents,
the Company has the right to accept orders to purchase
Book-Entry Notes and may reject any such orders in
whole or in part.
Preparation of Term If any order to purchase a Book-Entry Note is accepted
Sheet: by or on behalf of the Company, the Company will
prepare a Term Sheet. The Company (i) will arrange to
file an electronic format document, in the manner
prescribed by the Commission's Electronic Data
Gathering, Analysis, and Retrieval ("EDGAR") system, of
such Term Sheet with the Commission as required by Rule
433 under the Act and (ii) will, as soon as possible
and in any event not later than the date on which such
Term Sheet is filed with the Commission, deliver the
number of copies of such Term Sheet to the Agent as the
Agent shall reasonably request. The Agent will cause
such Term Sheet to be delivered, or otherwise made
available, to the purchaser of the Note.
Preparation of Pricing If any order to purchase a Book-Entry Note is accepted
Supplement: by or on behalf of the Company, the Company will
prepare a pricing supplement (a "Pricing Supplement")
reflecting the Terms of such Book-Entry Note and will
arrange to have a copy thereof filed with the EDGAR
system in accordance with the applicable paragraph of
Rule 424(b) under the Act and will supply at least two
copies thereof (and additional copies if requested) to
the Agent which presented the order (the "Presenting
Agent"). One copy of such filed document shall be sent
by email, telecopy or overnight express (for delivery
not later than 11:00 A.M. on the second business day
next following the sale date and, in any case, not
prior to the filing date) to the Presenting Agent at
the following applicable addresses:
Lehman Brothers Inc.:
c/o ADP Prospectus Services
on behalf of Lehman Brothers Inc.
-23-
1155 Long Island Avenue
Edgewood, New York 11717
Attention: Client Services
Telephone: (631) 254-7118
Telecopy: (631) 254-7268
Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Attention: Rock Fu
Telephone: (212) 847-6434
Telecopy: (212) 847-5184
with a copy to:
Lily Chang
Banc of America Securities LLC
40 West 57th Street, 27th Floor
New York, New York 10019
Telephone: (646) 313-8798
Telecopy: (212) 901-7881
Barclays Capital Inc.:
c/o ADP Prospectus
1155 Long Island Avenue
Edgewood, New York 11717
Attention: Client Services
Telephone: (631) 254-7129
Telecopy: (631) 254-7140
Bear, Stearns & Co. Inc.:
383 Madison Avenue
New York, New York 10179
Attention: Jonathan Lieberman
Telephone: (212) 272-2703
Telecopy: (917) 849-1160
BNP Paribas Securities Corp.:
787 Seventh Avenue
New York, New York 10019
Attention: Debt Capital Markets
Telephone: (212) 841-3320
Telecopy: (212) 841-3930
-24-
Citigroup Global Markets Inc.:
Brooklyn Army Terminal
140 58th Street, 8th Floor
Brooklyn, New York 11220
Attention: Annabelle Avila
Telephone: (718) 765-6725
Telecopy: (718) 765-6734
Credit Suisse Securities (USA) LLC:
11 Madison Avenue
New York, New York 10010
Attention: Joan Bryan
Telephone: (212) 538-7764
Telecopy: (212) 803-4096
Deutsche Bank Securities Inc.:
60 Wall Street
New York, New York 10005
Attention: Debt Capital Markets
Telephone: (212) 250-8587
Telecopy: (212) 797-2202
Goldman, Sachs & Co.:
85 Broad St.
27th Floor
New York, New York 10004
Attention: Nick Philip
Telephone: (212) 902-2525
Telecopy: (212) 902-3000
HSBC Securities (USA) Inc.:
452 Fifth Avenue
New York, New York 10018
Attention: Medium Term Notes Desk
Telephone: (212) 525-3142
Telecopy: (212) 525-0238
with a copy to:
HSBC Securities (USA) Inc.
452 Fifth Avenue, 3rd Floor
New York, New York 10018
-25-
Attention: Andrew S. Lazerus
Telephone: (212) 525-3456
Telecopy: (646) 366-3338
J.P. Morgan Securities Inc.:
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: Transaction Execution Group
Telephone: (212) 834-5710
Telecopy: (212) 834-6702
LaSalle Financial Services, Inc.:
55 East 52nd Street
New York, New York 10055
Attention: Rob Silverschotz
Telephone: (212) 409-6862
Telecopy: (212) 409-7303
Merrill Lynch, Pierce, Fenner & Smith
Incorporated:
c/o ADP Prospectus
Distribution Services
1155 Long Island Avenue
Edgewood, New York 11717
Attention: Shawn Leandre
Telephone: (631) 254-7081
Telecopy: (631) 254-7132
Morgan Stanley & Co. Incorporated:
1585 Broadway, 2nd Floor
New York, New York 10036
Attention: Medium-Term Note Trading Desk
Telephone: (212) 761-1721
Telecopy: (212) 761-0781
UBS Securities LLC:
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Fixed Income Syndicate
Telephone: (203) 719-1088
Telecopy: (203) 719-0495
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Wachovia Capital Markets, LLC:
301 South College Street
Charlotte, North Carolina 28288-0602
Attention: Travis Barnes
Telephone: (704) 715-8407
Telecopy: (704) 383-9165
For record keeping purposes, one copy of each
Pricing Supplement shall be mailed to the
Presenting Agent at the following applicable
addresses:
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Attention: Medium-Term Note Desk
Telecopy: (212) 526-0943
Banc of America Securities LLC:
9 West 57th Street
New York, New York 10019
Attention: Rock Fu
Telephone: (212) 847-6434
Telecopy: (212) 847-5184
with a copy to:
Lily Chang
Banc of America Securities LLC
40 West 57th Street, 27th Floor
New York, New York 10019
Telephone: (646) 313-8798
Telecopy: (212) 901-7881
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Attention: MTN Trading
Telephone: (212) 412-2663
Telecopy: (212) 412-7305
with a copy to:
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Pamela Kendall
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Telephone: (212) 412-7606
Telecopy: (212) 412-7680
Bear, Stearns & Co. Inc.:
383 Madison Avenue
New York, New York 10179
Attention: Jonathan Lieberman
Telephone: (212) 272-2703
Telecopy: (917) 849-1160
BNP Paribas Securities Corp.:
787 Seventh Avenue
New York, New York 10019
Attention: Debt Capital Markets
Telephone: (212) 841-3320
Telecopy: (212) 841-3930
Citigroup Global Markets Inc.
Brooklyn Army Terminal
140 58th Street, 8th Floor
Brooklyn, New York 11220
Attention: Anabelle Avila
Telephone: (718) 765-6725
Telecopy: (718) 765-6734
Credit Suisse Securities (USA) LLC
11 Madison Avenue
New York, New York 10010
Attention: Short and Medium-Term Finance
Department
Telephone: (212) 325-7198
Telecopy: (212) 743-5825
with a copy to:
Helena Willner
11 Madison Avenue
New York, New York 10010
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Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Attention: Debt Capital Markets
Telephone: (212) 250-8587
Telecopy: (212) 797-2202
Goldman, Sachs & Co.
85 Broad Street
27th Floor
New York, New York 10004
Attention: Nick Philip
Telephone: (212) 902-2525
Telecopy: (212) 902-3000
HSBC Securities (USA) Inc.:
452 Fifth Avenue, 3rd Floor
New York, New York 10018
Attention: Andrew S. Lazerus
Telephone: (212) 525-3456
Telecopy: (646) 366-3338
J.P. Morgan Securities Inc.:
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: Transaction Execution Group
Telephone: (212) 834-5710
Telecopy: (212) 834-6702
LaSalle Financial Services, Inc.:
55 East 52nd Street
New York, New York 10055
Attention: Rob Silverschotz
Telephone: (212) 409-6862
Telecopy: (212) 409-7303
Merrill Lynch, Pierce, Fenner & Smith
Incorporated:
4 World Financial Center, 4th Floor
New York, New York 10080
Attention: Global Transaction Management
Group - Scott Primrose
Telephone: (212) 449-7476
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Telecopy: (212) 449-2234
Morgan Stanley & Co. Incorporated:
1585 Broadway, 2nd Floor
New York, New York 10036
Attention: Medium-Term Note Trading Desk
Telephone: (212) 761-1721
Telecopy: (212) 761-0781
UBS Securities LLC:
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Fixed Income Syndicate
Telephone: (203) 719-1088
Telecopy: (203) 719-0495
Wachovia Capital Markets, LLC:
301 South College Street
Charlotte, North Carolina 28288-0602
Attention: Travis Barnes
Telephone: (704) 715-8407
Telecopy: (704) 383-9165
The Presenting Agent will cause a Prospectus and
Pricing Supplement to be delivered to the
purchaser of such Book-Entry Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements (other than
those retained for files) will be destroyed.
Suspension of Solicitation; Subject to the Company's representations,
Amendment or Supplement warranties and covenants contained in the Selling
Agency Agreement, the Company may instruct the
Agents to suspend at any time, for any period of
time or permanently, the solicitation of orders to
purchase Book-Entry Notes. Upon receipt of such
instructions, the Agents will forthwith suspend
solicitation until such time as the Company has
advised them that such solicitation may be
resumed.
In the event that at the time the Company suspends
solicitation of the purchases there shall be any
orders
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outstanding for settlement, the Company will
promptly advise the Agents and the applicable
Banks whether such orders may be settled and
whether copies of the Prospectus as in effect at
the time of suspension, together with the
appropriate Pricing Supplement or Term Sheet may
be delivered in connection with the settlement of
such orders. The Company will have the sole
responsibility for such decision and for any
arrangements that may be made in the event that
the Company determines that such orders may not be
settled or that copies of such Prospectus, Pricing
Supplement or Term Sheet may not be so delivered.
If the Company decides to amend or supplement the
registration statement relating to the
registration of the Notes with the Commission or
the Prospectus or decides to file any further
registration statements for the purpose of
registering Notes and in connection with which the
Selling Agency Agreement is included or
incorporated by reference as an exhibit, it will
promptly advise the Agents and furnish the Agents
with the proposed amendment or supplement or
registration statement and with such certificates
and opinions as are required, all to the extent
required by and in accordance with the terms of
the Selling Agency Agreement. Subject to the
provisions of the Selling Agency Agreement, the
Company may file with the Commission any such
supplement to the Prospectus relating to the
Notes. The Company will provide the Agents, each
Trustee and each Bank with copies of any such
supplement, and confirm to the Agents that such
supplement has been filed with the Commission
pursuant to the applicable paragraph of Rule
424(b).
Procedures For When the Company has determined to change the
Rate Changes: interest rates of Book-Entry Notes being offered,
it will promptly advise the Agents and the Agents
will forthwith suspend solicitation of orders. The
Agents will telephone the Company with
recommendations as to the changed interest rates.
At such time as the Company has advised the Agents
of the new interest rates, the Company will
prepare a revised Term Sheet and the Agents may
resume solicitation of orders. Until such time
only "indications of interest" may be recorded. On
or prior to the last day on which a Pricing
Supplement is required to be filed pursuant to the
Act and the Rules and Regulations, the Company
will file with the Commission a Pricing Supplement
to the Prospectus relating to such Book-Entry
Notes that reflects the applicable interest rates
and other terms and will deliver
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copies of such Pricing Supplement to the
applicable Agent.
Delivery of Prospectus: A copy of the Prospectus and a Pricing Supplement
relating to a Book-Entry Note or a notice
satisfying the requirements of Rule 173 under the
Act must accompany or precede the earlier of
confirmation of the purchase of such Book-Entry
Note or payment for such Book-Entry Note by its
purchaser. If notice of a change in the terms of
the Book-Entry Notes is received by the Agents
between the time an order for a Book-Entry Note is
placed and the time written confirmation thereof
is sent by the Presenting Agent to a customer or
his agent, such confirmation shall be accompanied
by a Prospectus and Pricing Supplement setting
forth the terms in effect when the order was
placed. Subject to "Suspension of Solicitation;
Amendment or Supplement" above, the Presenting
Agent will deliver a Prospectus and Pricing
Supplement as herein described or a notice
satisfying the requirements of Rule 173 under the
Act with respect to each Book-Entry Note sold by
it. The Company will make such delivery if such
Book-Entry Note is sold directly by the Company to
a purchaser (other than an Agent).
Confirmation: For each order to purchase a Book-Entry Note
solicited by any Agent and accepted by or on
behalf of the Company, the Presenting Agent will
issue a confirmation to the purchaser, with a copy
to the Company, setting forth the details set
forth above and delivery and payment instructions.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry Note
and the authentication and issuance of the Global
Note representing such Book-Entry Note shall
constitute "settlement" with respect to such
Book-Entry Note. All orders accepted by the
Company will be settled on the third business day
following the date of sale of such Book-Entry Note
pursuant to the timetable for settlement set forth
below unless the Company, the applicable Bank and
the purchaser agree to settlement on another day
which shall be no earlier than the next business
day following the date of sale.
Settlement Procedures Settlement Procedures with respect to each Dollar
for Dollar Denominated Denominated Note sold by the Company through any
Notes: Agent, as agent, shall be as follows:
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A. The Presenting Agent will advise the Company by
telephone of, and confirm in writing, the following
settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Note, the
interest rate or, in the case of a Floating
Rate Note, the interest rate basis
(including, if LIBOR, the method for
determining LIBOR), initial interest rate
(if known at such time), Index Maturity,
Interest Reset Period and Interest Reset
Dates (if any), Spread or Spread Multiplier
(if any), minimum interest rate (if any)
and maximum interest rate (if any).
4. Interest Payment Dates and the Interest
Payment Period.
5. Settlement date.
6. Price.
7. Presenting Agent's commission, determined
as provided in Section 2 of the Selling
Agency Agreement.
7. Presenting Agent's commission, determined
as provided in Section 2 of the Selling
Agency Agreement.
8. Priority (including, if a Subordinated
Note, whether such Note is intended to
qualify as Tier II Capital).
9. Redemption and/or repayment provisions, if
any.
10. If such Book-Entry Note is issued at an
original issue discount ("OID"), the total
amount of OID, the yield to maturity and
the initial accrual period OID.
B. The Company will advise the Presenting Agent by
telecopy or other mutually acceptable method of the
name of the Bank and, if the Notes are Senior Notes,
the name of the Senior Trustee. The Company will advise
such Bank by telecopy or other mutually acceptable
method of the information set forth in Settlement
Procedure "A" above
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and the name of the Presenting Agent.
C. The Company will assign a CUSIP number to the Global
Note and will notify such Bank and the Presenting Agent
by telephone of such CUSIP number as soon as
practicable. Such Bank will enter a pending deposit
message through DTC's Participant Terminal System
providing the following settlement information to DTC
(which shall route such information to Standard &
Poor's Corporation and the Presenting Agent):
1. The information set forth in Settlement
Procedure "A".
2. Identification as a Fixed Rate Note or a
Floating Rate Note.
3. Initial Interest Payment Date for such
Book-Entry Note, number of days by which
such date succeeds the related Record Date
and amount of interest payable on such
Interest Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the Global Note
representing such Book-Entry Note.
6. Whether such Global Note will represent any
other Book-Entry Note (to the extent known
at such time).
D. To the extent the Company has not already done so,
the Company will deliver to such Bank a Global Note in
a form that has been approved by the Company, the
Agents and such Bank.
E. Such Bank will complete such Book-Entry Note, stamp
or type in the appropriate legend, as instructed by
DTC, if not already set forth thereon, and authenticate
the Global Note representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to such Bank's
participant account at DTC.
G. Such Bank will enter a delivery order through DTC's
Same-Day Funds Settlement System ("SDFS") and
Participant Terminal System instructing DTC to (i)
debit
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such Book-Entry Note to such Bank's participant account
and credit such Book-Entry Note to the Presenting
Agent's participant account and (ii) debit the
Presenting Agent's settlement account and credit such
Bank's settlement account for an amount equal to the
price of such Book-Entry Note less the Presenting
Agent's commission. The entry of such a deliver order
shall constitute a representation and warranty by such
Bank to DTC that (i) such Global Note representing such
Book-Entry Note has been issued and authenticated and
(ii) such Bank is holding such Global Note pursuant to
the Global Medium-Term Note Certificate Agreement
between such Bank and DTC.
H. The Presenting Agent will enter an SDFS deliver order
through DTC's Participant Terminal system instructing
DTC (i) to debit such Book-Entry Note to the Presenting
Agent's participant account and credit such Book-Entry
Note to the participant accounts of the Participants
with respect to such Book-Entry Note and (ii) to debit
the settlement accounts of such Participants and credit
the settlement account of the Presenting Agent for an
amount equal to the price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and "H"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
J. Such Bank will, upon receipt of funds from the Agent
in accordance with Settlement Procedure "G", wire
transfer funds available for immediate use in the amount
transferred to such Bank in accordance with Settlement
Procedure "G" to the account of the Company maintained
at JPMorgan Chase Bank, N.A., New York, New York.
K. The Presenting Agent will confirm the purchase of
such Book-Entry Note to the purchaser either by
transmitting to the Participants with respect to such
Book-Entry Note a confirmation order or orders through
DTC's institutional delivery system or by mailing a
written confirmation to such purchaser.
Settlement Procedures For orders of Book-Entry Notes solicited by any Agent
Timetable for Dollar and accepted by the Company for settlement on the first
Denominated Notes: business day after the sale date, Settlement Procedures
"A" through "K" set forth above shall be completed as
soon as
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possible but not later than the respective times (New
York City time) set forth below:
Settlement
Procedure Time
---------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
If a sale is to be settled more than one business day
after the sale date, Settlement Procedures "A", "B" and
"C" shall be completed as soon as practicable but no
later than 11:00 A.M. and 12:00 Noon on the first
business day after the sale date and no later than 2:00
P.M. on the business day before the settlement date,
respectively. If the initial interest rate for a
Floating Rate Book-Entry Note has not been determined at
the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as
soon as such rate has been determined but no later than
12:00 Noon and 2:00 P.M., respectively, on the business
day before the settlement date. Settlement Procedure "I"
is subject to extension in accordance with any extension
of Fedwire closing deadlines and in the other events
specified in SDFS operating procedures in effect on the
settlement date.
If settlement of a Book-Entry Note is rescheduled or
canceled, such Bank will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message to
such effect by no later than 2:00 P.M. on the business
day immediately preceding the scheduled settlement date.
-36-
Settlement Procedures Foreign Currency Notes held through Euroclear or
and Timetable for Clearstream accounts will follow the settlement
Foreign Currency procedures that are applicable to conventional eurobonds
Notes: in registered form. Foreign Currency Notes will be
credited to the securities custody accounts of Euroclear
and Clearstream participants on the business day
following the settlement date, for value on the
settlement date. They will be credited either free of
payment or against payment for value on the settlement
date.
Failure to Settle If the applicable Bank has not entered an SDFS deliver
Dollar Denominated order with respect to a Book-Entry Note pursuant to
Notes: Settlement Procedure "G", such Bank may, upon the
written request of the Company, deliver to DTC, through
DTC's Participant Terminal System, as soon as
practicable, a withdrawal message instructing DTC to
debit such Book-Entry Note to such Bank's participant
account. DTC will process the withdrawal message,
provided that such participant account contains a
principal amount of the Global Note representing such
Book-Entry Note that is at least equal to the principal
amount to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Notes
represented by a Global Note, such Bank will cancel such
Global Note in accordance with the applicable Indenture
and so advise the Company, and such Bank will make
appropriate entries in its records. The CUSIP number
assigned to such Global Note shall, in accordance with
CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of
the Book-Entry Notes represented by a Global Note, such
Bank will exchange such Global Note for two Global
Notes, one of which shall represent such Book-Entry
Notes and shall be canceled immediately after issuance
and the other of which shall represent the other
Book-Entry Notes previously represented by the
surrendered Global Note and shall bear the CUSIP number
of the surrendered Global Note.
If the purchase price for any Dollar Denominated Note is
not timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or any Person,
including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in
turn, the Presenting Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "H" and
"G",
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respectively. Thereafter, such Bank will deliver the
withdrawal message and take the related actions
described in the preceding paragraph. If such failure
shall have occurred for any reason other than a default
by the Presenting Agent in the performance of its
obligations hereunder and under the Selling Agency
Agreement, then the Company will reimburse the
Presenting Agent or such Bank, as applicable, on an
equitable basis for the loss of the use of the funds
during the period when they were credited to the account
of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Dollar Denominated Note, DTC
may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a
failure to settle with respect to one or more, but not
all, of the Book-Entry Notes to have been represented by
a Global Note, such Bank will provide, in accordance
with Settlement Procedure "E", for the authentication
and issuance of a Global Note representing the other
Book-Entry Notes to have been represented by such Global
Note and will make appropriate entries in its records.
Failure to Settle Upon any failure to settle with respect to any Foreign
Foreign Currency Currency Note, Euroclear or Clearstream may take any
Notes: actions in accordance with its operating procedures then
in effect.
Bank Not to Risk Nothing herein shall be deemed to require any Trustee or
Funds: any Bank to risk or expend its own funds in connection
with any payment to the Company, the applicable
Depositary, the Agents or any of the purchasers of the
Notes, it being understood by all parties that payments
made by any Bank to the Company, the applicable
Depositary, the Agents or such purchasers shall be made
only to the extent that funds are provided to such Bank
for such purpose.
Authenticity of The Company will cause each Bank to furnish the Agents
Signatures: from time to time with the specimen signatures of such
Bank's officers, employees or agents who have been
authorized by such Bank to authenticate Book-Entry
Notes, but none of the Agents will have any obligation
or liability to the Company or such Bank in respect of
the authenticity of the signature of any officer,
employee or agent of the Company or such Bank on any
Book-Entry Note.
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Advertising Costs: The Company will determine, after consulting with the
Agents, the amount of advertising that may be
appropriate in soliciting offers to purchase the
Book-Entry Notes. Advertising expenses will be paid by
the Company.
Periodic Statements Periodically, the applicable Bank will send to the
from the Banks: Company a statement setting forth the principal amount
of Book-Entry Notes outstanding as of that date and
setting forth a brief description of any sales of
Book-Entry Notes of which the Company has advised such
Bank but which have not yet been settled.
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PART II
Administrative Procedures for Certificated Notes
One or more Banks will serve as registrar and transfer agent (in
such capacities, the "Registrar" and "Transfer Agent", respectively) in
connection with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by the Bank acting as
Registrar and Transfer Agent for such Note. Each
Certificated Note will bear an Original Issue Date,
which will be (i) with respect to an original
Certificated Note (or any portion thereof), its
original issuance date (which will be the settlement
date) and (ii) with respect to any Certificated Note
(or portion thereof) issued subsequently upon transfer
or exchange of a Certificated Note or in lieu of a
destroyed, lost or stolen Certificated Note, the
Original Issue Date of the predecessor Certificated
Note, regardless of the date of authentication of such
subsequently issued Certificated Note.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and A Certificated Note may be presented for transfer or
Exchanges: exchange at the principal corporate trust office in the
City of New York of the Bank acting as Registrar and
Transfer Agent for such Certificated Note or at the
office of the transfer agent in Luxembourg (in the case
of Notes listed on the Luxembourg Stock Exchange).
Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but different
authorized denominations without service charge.
Certificated Notes will not be exchangeable for
Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date not less
than nine months after the settlement date for such
Note.
Denominations: The denomination of any Certificated Note denominated
in U.S. dollars will be a minimum of $1,000 or any
amount in excess thereof that is an integral multiple
of $1,000, or the equivalent thereof in other
currencies or currency units. The authorized
denominations of Certificated Notes denominated in any
other currency will be specified pursuant to
"Settlement Procedures" below.
-40-
Interest: General. Interest, if any, on each Certificated Note
will accrue from the original issue date for the first
interest period or the last date to which interest has
been paid, if any, for each subsequent interest period,
and will be calculated and paid in the manner described
in such Note and in the Prospectus, as supplemented by
the applicable Term Sheet and applicable Pricing
Supplement. Unless otherwise specified therein, each
payment of interest on a Certificated Note will include
interest accrued to but excluding the Interest Payment
Date (provided that, in the case of Floating Rate
Certificated Notes which reset daily or weekly,
interest payments will include accrued interest to and
including the Record Date immediately preceding the
Interest Payment Date) or to but excluding Maturity
(other than a Maturity of a Fixed Rate Certificated
Note occurring on the 31st day of a month, in which
case such payment of interest will include interest
accrued to but excluding the 30th day of such month).
Interest payable at the Maturity of a Certificated
Note, other than on a day that would otherwise be an
Interest Payment Date, will be payable to the person to
whom the principal of such Note is payable.
Record Dates. Unless otherwise specified in the
applicable Term Sheet and Pricing Supplement, the
Record Date with respect to any Interest Payment Date
shall be the date fifteen calendar days immediately
preceding such Interest Payment Date.
Interest Payment Dates on Fixed Rate Certificated
Notes. Unless otherwise specified pursuant to
Settlement Procedure "A" below, interest payments on
Fixed Rate Certificated Notes will be made
semi-annually on January 15 and July 15 of each year
and at Maturity; provided, however, that, unless
otherwise specified in the applicable Term Sheet and
Pricing Supplement, in the case of a Fixed Rate
Certificated Note issued between a Record Date and an
Interest Payment Date, the first interest payment will
be made on the Interest Payment Date following the next
succeeding Record Date.
Calculation of Fixed Rate Certificated Note. Unless otherwise
Interest: specified in the applicable Term Sheet and Pricing
Supplement, interest on Fixed Rate Certificated Notes
(including interest for partial periods) will be
calculated on the basis of a 360-day year of twelve
30-day months.
-41-
Floating Rate Certificated Notes. Unless otherwise
specified in the applicable Term Sheet and Pricing
Supplement, interest rates on Floating Rate
Certificated Notes will be determined as set forth in
the form of Notes. Interest on Floating Rate
Certificated Notes, except as otherwise set forth
therein, will be calculated on the basis of actual days
elapsed and a year of 360 days, except that in the case
of a Floating Rate Certificated Note for which the
interest rate basis is the Treasury Rate, interest will
be calculated on the basis of the actual number of days
in the year.
If any Interest Payment Date for or the Maturity of a
Certificated Note is not a business day, the payment
due on such day shall be made on the next succeeding
business day and no interest shall accrue on such
payment for the period from and after such Interest
Payment Date or Maturity, as the case may be.
Withholding Taxes: Such Bank will be responsible for
withholding taxes on interest paid on Certificated
Notes as required by applicable law.
Procedure for Rate The Company and the Agents will discuss from time to
Setting and Posting: time the aggregate principal amount of, the issuance
price of, and the interest rates to be borne by, Notes
that may be sold as a result of the solicitation of
orders by the Agents. If the Company decides to set
prices of, and rates borne by, any Notes in respect of
which the Agents are to solicit orders (the setting of
such prices and rates to be referred to herein as
"posting") or if the Company decides to change prices
or rates previously posted by it, it will promptly
advise the Agents of the prices and rates to be posted.
Acceptance and Unless otherwise instructed by the Company, each Agent
Rejection of Orders: will advise the Company promptly by telephone of all
orders to purchase Certificated Notes received by such
Agent, other than those rejected by it in whole or in
part in the reasonable exercise of its discretion.
Unless otherwise agreed by the Company and the Agents,
the Company has the sole right to accept orders to
purchase Certificated Notes and may reject any such
orders in whole or in part.
Preparation of Term If any order to purchase a Certificated Note is
Sheet: accepted by or on behalf of the Company, the Company
will prepare a Term Sheet. The Company (i) will arrange
to file an electronic format document, in the manner
prescribed by
-42-
the Commission's EDGAR system, of such Term Sheet with
the Commission as required by Rule 433 under the Act
and (ii) will, as soon as possible and in any event not
later than the date on which such Term Sheet is filed
with the Commission, deliver the number of copies of
such Term Sheet to the Agent as the Agent shall
reasonably request. The Agent will cause such Term
Sheet to be delivered, or otherwise made available, to
the purchaser of the Note.
Preparation of Pricing If any order to purchase a Certificated Note is
Supplement: accepted by or on behalf of the Company, the Company
will prepare a Pricing Supplement reflecting the terms
of such Certificated Note and will arrange to have a
copy thereof filed with the Commission's EDGAR system
in accordance with the applicable paragraph of Rule
424(b) under the Act and will supply at least two
copies thereof (and additional copies if requested) to
the Presenting Agent. One copy of such filed document
shall be sent by email, telecopy or overnight express
(for delivery not later than 11:00 A.M. on the second
business day next following the sale date and, in any
case, not prior to the filing date) to the Presenting
Agent at the following applicable addresses:(1)
Lehman Brothers Inc.:
c/o ADP Prospectus Services
on behalf of Lehman Brothers Inc.
1155 Long Island Avenue
Edgewood, New York 11717
Attention: Client Services
Telephone: (631) 254-7118
Telecopy: (631) 254-7268
- ----------
(1) Addresses to be confirmed.
-43-
Banc of America Securities LLC:
9 West 57th Street
New York, New York 10019
Attention: Rock Fu
Telephone: (212) 847-6434
Telecopy: (212) 847-5184
with a copy to:
Lily Chang
Banc of America Securities LLC
40 West 57th Street, 27th Floor
New York, New York 10019
Telephone: (646) 313-8798
Telecopy: (212) 901-7881
Barclays Capital Inc.:
c/o ADP Prospectus
1155 Long Island Avenue
Edgewood, New York 11717
Attention: Client Services
Telephone: (631) 254-7129
Telecopy: (631) 254-7140
Bear, Stearns & Co. Inc.:
383 Madison Avenue
New York, New York 10179
Attention: Jonathan Lieberman
Telephone: (212) 272-2703
Telecopy: (917) 849-1160
BNP Paribas Securities Corp.:
787 Seventh Avenue
New York, New York 10019
Attention: Debt Capital Markets
Telephone: (212) 841-3320
Telecopy: (212) 841-3930
-44-
Citigroup Global Markets Inc:
Brooklyn Army Terminal
140 58th Street, 8th Floor
Brooklyn, New York 11220
Attention: Annabelle Avila
Telephone: (718) 765-6725
Telecopy: (718) 765-6734
Credit Suisse Securities (USA) LLC:
11 Madison Avenue, Floor 1B
New York, New York 10010
Attention: Joan Bryan
Telephone: (212) 538-7764
Telecopy: (212) 803-4096
Deutsche Bank Securities Inc.:
60 Wall Street
New York, New York 10005
Attention: Debt Capital Markets
Telephone: (212) 250-8587
Telecopy: (212) 797-2202
Goldman, Sachs & Co.:
85 Broad Street
27th Floor
New York, New York 10004
Attention: Nick Philip
Telephone: (212) 902-2525
Telecopy: (212) 902-3000
-45-
HSBC Securities (USA) Inc.:
452 Fifth Avenue
New York, New York 10018
Attention: Medium Term Notes Desk
Telephone: (212) 525-3142
Telecopy: (212) 525-0238
with a copy to:
HSBC Securities (USA) Inc.
452 Fifth Avenue, 3rd Floor
New York, New York 10018
Attention: Andrew S. Lazerus
Telephone: (212) 525-3456
Telecopy: (646) 366-3338
J.P. Morgan Securities Inc.:
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: Transaction Execution Group
Telephone: (212) 834-5710
Telecopy: (212) 834-6702
LaSalle Financial Services, Inc.:
55 East 52nd Street
New York, New York 10055
Attention: Rob Silverschotz
Telephone: (212) 409-6862
Telecopy: (212) 409-7303
Merrill Lynch, Pierce, Fenner & Smith Incorporated:
c/o ADP Prospectus
Distribution Services
1155 Long Island Avenue
Edgewood, New York 11717
Attention: Shawn Leandre
Telephone: (631) 254-7081
Telecopy: (631) 254-7132
-46-
Morgan Stanley & Co. Incorporated:
1585 Broadway, 2nd Floor
New York, New York 10036
Attention: Medium-Term Note Trading Desk
Telephone: (212) 761-1721
Telecopy: (212) 761-0781
UBS Securities LLC:
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Fixed Income Syndicate
Telephone: (203) 719-1088
Telecopy: (203) 719-0495
Wachovia Capital Markets, LLC:
301 South College Street
Charlotte, North Carolina 28288-0602
Attention: Travis Barnes
Telephone: (704) 715-8407
Telecopy: (704) 383-9165
For record keeping purposes, one copy of each Pricing
Supplement shall be mailed to the Presenting Agent at
the following applicable addresses:
Lehman Brothers Inc.:
745 Seventh Avenue
New York, New York 10019
Attention: Medium-Term Note Desk
Telecopy: (212) 526-0943
-47-
Banc of America Securities LLC:
9 West 57th Street
New York, New York 10019
Attention: Rock Fu
Telephone: (212) 847-6434
Telecopy: (212) 847-5184
with a copy to:
Lily Chang
Banc of America Securities LLC
40 West 57th Street, 27th Floor
New York, New York 10019
Telephone: (646) 313-8798
Telecopy: (212) 901-7881
Barclays Capital Inc.:
200 Park Avenue
New York, New York 10166
Attention: MTN Trading
Telephone: (212) 412-2663
Telecopy: (212) 412-7305
with a copy to:
Pamela Kendall
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Telephone: (212) 412-7606
Telecopy: (212) 412-7680
Bear, Stearns & Co. Inc.:
383 Madison Avenue
New York, New York 10179
Attention: Jonathan Lieberman
Telephone: (212) 272-2703
Telecopy: (917) 849-1160
-48-
BNP Paribas Securities Corp.:
787 Seventh Avenue
New York, New York 10019
Attention: Debt Capital Markets
Telephone: (212) 841-3320
Telecopy: (212) 841-3930
Citigroup Global Markets Inc.:
Brooklyn Army Terminal
140 58th Street, 8th Floor
Brooklyn, New York 11220
Attention: Annabelle Avila
Telephone: (718) 765-6725
Telecopy: (718) 765-6734
Credit Suisse Securities (USA) LLC
11 Madison Avenue
New York, New York 10010
Attention: Short and Medium-Term Finance Department
Telephone: (212) 325-7198
Telecopy: (212) 743-5825
with a copy to:
Helena Willner
11 Madison Avenue
New York, New York 10010
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Attention: Debt Capital Markets
Telephone: (212) 250-8587
Telecopy: (212) 797-2202
-49-
Goldman, Sachs & Co.
85 Broad Street
27th Floor
New York, New York 10004
Attention: Nick Philip
Telephone: (212) 902-2525
Telecopy: (212) 902-3000
HSBC Securities (USA) Inc.:
452 Fifth Avenue, 3rd Floor
New York, New York 10018
Attention: Andrew S. Lazerus
Telephone: (212) 525-3456
Telecopy: (646) 366-3338
J.P. Morgan Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: Transaction Execution Group
Telephone: (212) 834-5710
Telecopy: (212) 834-6702
LaSalle Financial Services, Inc.:
55 East 52nd Street
New York, New York 10055
Attention: Rob Silverschotz
Telephone: (212) 409-6862
Telecopy: (212) 409-7303
Merrill Lynch, Pierce, Fenner & Smith Incorporated:
4 World Financial Center, 4th Floor
New York, New York 10080
Attention: Global Transaction Management Group -
Scott Primrose
Telephone: (212) 449-7476
Telecopy: (212) 449-2234
-50-
Morgan Stanley & Co. Incorporated:
1585 Broadway, 4th Floor
New York, New York 10036
Attention: Medium-Term Note Trading Desk
Telephone: (212) 761-1721
Telecopy: (212) 761-0781
UBS Securities LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Fixed Income Syndicate
Telephone: (203) 719-1088
Telecopy: (203) 719-0495
Wachovia Capital Markets, LLC:
301 South College Street
Charlotte, North Carolina 28288-0602
Attention: Travis Barnes
Telephone: (704) 715-8407
Telecopy: (704) 383-9165
The Presenting Agent will cause a Prospectus and
Pricing Supplement to be delivered to the
purchaser of such Certificated Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements (other than
those retained for files) will be destroyed.
Suspension of Solicitation; Subject to the Company's representations,
Amendment or Supplement: warranties and covenants contained in the Selling
Agency Agreement, the Company may instruct the
Agents to suspend at any time, for any period of
time or permanently, the solicitation of orders to
purchase Certificated Notes. Upon receipt of such
instructions, the Agents will forthwith suspend
solicitation until such time as the Company has
advised them that such solicitation may be
resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any
orders outstanding for settlement, the Company
will promptly
-51-
advise the Agents and the applicable Bank whether
such orders may be settled and whether copies of
the Prospectus as in effect at the time of the
suspension, together with the appropriate Pricing
Supplement or Term Sheet or may be delivered in
connection with the settlement of such orders. The
Company will have the sole responsibility for such
decision and for any arrangements that may be made
in the event that the Company determines that such
orders may not be settled or that copies of such
Prospectus, Pricing Supplement or Term Sheet or
may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus or
decides to file any further registration
statements for the purpose of registering Notes
and in connection with which the Selling Agency
Agreement is included or incorporated by reference
as an exhibit, it will promptly advise the Agents
and furnish the Agents with the proposed amendment
or supplement or registration statement and with
such certificates and opinions as are required,
all to the extent required by and in accordance
with the terms of the Selling Agency Agreement.
Subject to the provisions of the Selling Agency
Agreement, the Company may file with the
Commission any supplement to the Prospectus
relating to the Notes. The Company will provide
the Agents, each Bank and each Trustee with copies
of any such supplement, and confirm to the Agents
that such supplement has been filed with the
Commission pursuant to the applicable paragraph of
Rule 424(b).
Procedures For When the Company has determined to change the
Rate Changes: interest rates of Certificated Notes being
offered, it will promptly advise the Agents and
the Agents will forthwith suspend solicitation of
orders. The Agents will telephone the Company with
recommendations as to the changed interest rates.
At such time as the Company has advised the Agents
of the new interest rates, the Company will
prepare a revised Term Sheet and the Agents may
resume solicitation of orders. Until such time
only "indications of interest" may be recorded.
Within two business days after any sale of Notes,
the Company will file with the Commission a
Pricing Supplement to the Prospectus relating to
such Notes that reflects the applicable interest
rates and other terms and will deliver copies of
such Pricing Supplement to the Agents.
-52-
Delivery of Prospectus: A copy of the Prospectus and a Pricing Supplement
relating to a Certificated Note or a notice
satisfying the requirements of Rule 173 under the
Act must accompany or precede the earlier of
confirmation of the purchase of such Certificated
Note and payment for such Certificated Note by its
purchaser. If notice of a change in the terms of
the Certificated Notes is received by the Agents
between the time an order for a Certificated Note
is placed and the time written confirmation
thereof is sent by the Presenting Agent to a
customer or his agent, such confirmation shall be
accompanied by a Prospectus and Pricing Supplement
setting forth the terms in effect when the order
was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above, the
Presenting Agent will deliver a Prospectus and
Pricing Supplement as herein described or a notice
satisfying the requirements of Rule 173 with
respect to each Certificated Note sold by it. The
Company will make such delivery if such
Certificated Note is sold directly by the Company
to a purchaser (other than an Agent).
Confirmation: For each order to purchase a Certificated Note
solicited by any Agent and accepted by or on
behalf of the Company, the Presenting Agent will
issue a confirmation to the purchaser, with a copy
to the Company, setting forth, among other things,
the delivery and payment instructions.
Settlement: The receipt by the Company of immediately
available funds in exchange for an authenticated
Certificated Note delivered to the Presenting
Agent and the Presenting Agent's delivery of such
Certificated Note against receipt of immediately
available funds shall constitute "settlement" with
respect to such Certificated Note. All orders
accepted by the Company will be settled on the
third business day following the date of sale
pursuant to the timetable for settlement set forth
below, unless the Company and the purchaser agree
to settlement on another day which shall be no
earlier than the next business day following the
date of sale.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note sold by the Company through any
Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Company by
telephone of, and confirm in writing, the
following
-53-
settlement information:
1. Name in which such Certificated Note is
to be registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the interest rate or, in the case
of a Floating Rate Certificated Note,
interest rate basis (including, if
LIBOR, the method for determining
LIBOR), the initial interest rate (if
known at such time), Index Maturity,
Interest Reset Period and Interest Reset
Dates (if any), Spread or Spread
Multiplier (if any), minimum interest
rate (if any) and maximum interest rate
(if any).
7. Interest Payment Dates and the Interest
Payment Period.
8. Specified Currency and whether the
option to elect payment in a Specified
Currency applies and if the Specified
Currency is not U.S. dollars, the
authorized denominations.
9. Settlement date.
10. Price (including currency).
11. Presenting Agent's commission,
determined as provided in Section 2 of
the Selling Agency Agreement.
12. Priority (including, if a Subordinated
Note, whether such Note is intended to
qualify as Tier II Capital).
-54-
13. Redemption and/or repayment provisions,
if any.
14. If such Certificated Note is issued at
an original issue discount ("OID"), the
total amount of OID, the yield to
maturity and the initial accrual period
OID.
B. The Company will advise the Presenting Agent by
telecopy or other mutually acceptable method of
the name of the Bank. The Company will advise such
Bank by telecopy or other mutually acceptable
method or electronic transmission of the
information set forth in Settlement Procedure "A"
above and the name of the Presenting Agent.
C. The Company will deliver to such Bank a
pre-printed four-ply packet for such Certificated
Note, which packet will contain the following
documents in forms that have been approved by the
Company, the Agents and such Bank:
1. Certificated Note with customer
confirmation.
2. Stub One - For such Bank.
3. Stub Two - For Agent.
4. Stub Three - For the Company.
D. Such Bank will complete such Certificated Note
and will authenticate, or cause to be
authenticated, such Certificated Note and deliver
it (with the confirmation) and Stubs One and Two
to the Presenting Agent at the following
applicable addresses:
Lehman Brothers Inc.:
745 Seventh Avenue
New York, New York 10019
Attention: Medium-Term Note Desk
Telecopy: (212) 526-0943
-55-
Banc of America Securities LLC:
9 West 57th Street
New York, New York 10019
Attention: Rock Fu
Telephone: (212) 847-6434
Telecopy: (212) 847-5184
with a copy to:
Lily Chang
Banc of America Securities LLC
40 West 57th Street, 27th Floor
New York, New York 10019
Telephone: (646) 313-8798
Telecopy: (212) 901-7881
Barclays Capital Inc.:
200 Park Avenue
New York, New York 10166
Attention: MTN Trading
Telephone: (212) 412-2663
Telecopy: (212) 412-7305
with a copy to:
Pamela Kendall
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Telephone: (212) 412-7606
Telecopy: (212) 412-7680
Bear, Stearns & Co. Inc.:
383 Madison Avenue
New York, New York 10179
Attention: Jonathan Lieberman
Telephone: (212) 272-2703
Telecopy: (917) 849-1160
-56-
BNP Paribas Securities Corp.:
787 Seventh Avenue
New York, New York 10019
Attention: Debt Capital Markets
Telephone: (212) 841-3320
Telecopy: (212) 841-3930
Citigroup Global Markets Inc.:
Brooklyn Army Terminal
140 58th Street, 8th Floor
Brooklyn, New York 11220
Attention: Annabelle Avila
Telephone: (718) 765-6725
Telecopy: (718) 765-6734
Credit Suisse Securities (USA) LLC
11 Madison Avenue
New York, New York 10010
Attention: Short and Medium-Term Finance
Department
Telephone: (212) 325-7198
Telecopy: (212) 743-5825
with a copy to:
Helena Willner
11 Madison Avenue
New York, New York 10010
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Attention: Debt Capital Markets
Telephone: (212) 250-8587
Telecopy: (212) 797-2202
-57-
Goldman, Sachs & Co.
85 Broad Street
27th Floor
New York, New York 10004
Attention: Nick Philip
Telephone: (212) 902-2525
Telecopy: (212) 902-3000
HSBC Securities (USA) Inc.:
452 Fifth Avenue
New York, New York 10018
Attention: Medium Term Notes Desk
Telephone: (212) 525-3142
Telecopy: (212) 525-0238
with a copy to:
HSBC Securities (USA) Inc.
452 Fifth Avenue, 3rd Floor
New York, New York 10018
Attention: Andrew S. Lazerus
Telephone: (212) 525-3456
Telecopy: (646) 366-3338
J.P. Morgan Securities Inc.
4 New York Plaza - 11th floor
New York, New York 10004
Attention: Jennifer John - Broker Dealer
Outsourcing
Telephone: (212) 623-5953
with a copy to:
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Attention: Debt Capital Markets - MTN Desk
Telephone: (212) 834-4533
-58-
LaSalle Financial Services, Inc.:
55 East 52nd Street
New York, New York 10055
Attention: Rob Silverschotz
Telephone: (212) 409-6862
Telecopy: (212) 409-7303
Merrill Lynch, Pierce, Fenner & Smith
Incorporated:
Merrill Lynch Money Markets Clearance
55 Water Street
3rd Floor Plaza Level
DTC New York Window
New York, New York 10041
Attention: Moma Noel
Telephone: (212) 855-2403
Telecopy: (212) 855-2457
Morgan Stanley & Co. Incorporated:
Bank of New York Dealer Clearance Department
1 Wall Street
3rd Floor, Window 3B
New York, New York 10005
Attention: For the Account of Morgan Stanley &
Co. Incorporated
UBS Securities LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Fixed Income Syndicate
Telephone: (203) 719-1088
Telecopy: (203) 719-0495
Wachovia Capital Markets, LLC:
301 South College Street
Charlotte, North Carolina 28288-0602
Attention: Travis Barnes
Telephone: (704) 715-8407
Telecopy: (704) 383-9165
The Presenting Agent will acknowledge receipt of
the Note by stamping or otherwise marking Stub One
and returning it to the such Bank. Such delivery
will be made only
-59-
against such acknowledgment of receipt and evidence
that instructions have been given by the Presenting
Agent for payment to the account of the Company at
JPMorgan Chase Bank, N.A., New York, New York, in funds
available for immediate use, of an amount equal to the
price of such Certificated Note less the Presenting
Agent's commission. In the event that the instructions
given by the Presenting Agent for payment to the
account of the Company are revoked, the Company will as
promptly as possible wire transfer to the account of
the Presenting Agent an amount of immediately available
funds equal to the amount of such payment.
E. The Presenting Agent will deliver such Certificated
Note (with the confirmation) to the customer against
payment in immediately payable funds. The Presenting
Agent will obtain the acknowledgment of receipt of such
Certificated Note by retaining Stub Two.
F. Such Bank will send Stub Three to the Company by
first-class mail.
Settlement Procedures For orders of Certificated Notes solicited by any
Timetable: Agent, as agent, and accepted by the Company,
Settlement Procedures "A" through "F" set forth above
shall be completed on or before the respective times
(New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 2:00 P.M. on the day before settlement
B-C 3:00 P.M. on the day before settlement
D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the Presenting Agent
will notify the Company and the applicable Bank by
telephone and return such Certificated Note to such
Bank. Upon receipt of such notice, the Company will
immediately wire transfer to the account of the
Presenting Agent an amount equal to
-60-
the amount previously credited to the account of
Company in respect of such Certificated Note. Such wire
transfer will be made on the settlement date, if
possible, and in any event not later than the business
day following the settlement date. If the failure shall
have occurred for any reason other than a default by
the Presenting Agent in the performance of its
obligations hereunder and under the Selling Agency
Agreement, then the Company will reimburse the
Presenting Agent or such Bank, as appropriate, on an
equitable basis for its loss of the use of the funds
during the period when they were credited to the
account of the Company. Immediately upon receipt of the
Certificated Note in respect of which such failure
occurred, such Bank will cancel such Certificated Note
in accordance with the applicable Indenture and so
advise the Company, and such Bank will make appropriate
entries in its records.
Bank Not to Risk Nothing herein shall be deemed to require any Trustee
Funds: or any Bank to risk or expend its own funds in
connection with any payment to the Company, the Agents
or any of the purchasers of the Certificated Notes, it
being understood by all parties that payments made by
any Bank to the Company, the Agents or such purchasers
shall be made only to the extent that funds are
provided to such Bank for such purpose.
Authenticity of The Company will cause each Bank to furnish the Agents
Signatures: from time to time with the specimen signatures of each
of such Bank's officers, employees or agents who has
been authorized by such Bank to authenticate
Certificated Notes, but none of the Agents will have
any obligation or liability to the Company or such Bank
in respect of the authenticity of the signature of any
officer, employee or agent of the Company or such Bank
on any Certificated Note.
Advertising Costs: The Company will determine, after consulting with the
Agents, the amount of advertising that may be
appropriate in soliciting offers to purchase the
Certificated Notes. Advertising expenses will be paid
by the Company.
Periodic Statements Periodically, the appropriate Bank will send to the
from the Banks: Company a statement setting forth the principal amount
of Certificated Notes outstanding as of that date and
setting forth a brief description of any sales of
Certificated Notes which the Company has advised such
Bank but which have not yet been settled.
-61-
SCHEDULE I to
ADMINISTRATIVE PROCEDURES
Schedule of Indentures
Senior Indenture
Indenture, dated as of January 20, 2006 between CIT Group Inc., a Delaware
corporation and JPMorgan Chase Bank, N.A., as Trustee.
Subordinated Indenture
Indenture, dated as of January 20, 2006 between CIT Group Inc., a Delaware
corporation and JPMorgan Chase Bank, N.A., as Trustee.
-62-
SCHEDULE II to
ADMINISTRATIVE PROCEDURES
Schedule of Banks
Each of the Trustees listed on Schedule I to Administrative Procedures (which,
initially, shall be JPMorgan Chase Bank, N.A.) together with any Trustee added
to such Schedule after the date hereof.
-63-
Administrative Procedures
Table of Contents
Page
1. Representations and Warranties of the Company .......................... 3
2. Solicitations by the Agent of Offers to Purchase; Purchases as
Principal; Additional Agents; Marketing Materials ...................... 5
3. Covenants of the Company ............................................... 8
4. Conditions of the Obligations of the Agents ............................ 14
5. Indemnification and Contribution ....................................... 18
6. Position of the Agent .................................................. 21
7. Termination ............................................................ 21
8. Representations, Warranties, Agreements, Indemnities and Other
Statements to Survive .................................................. 21
9. Notices ................................................................ 22
10. Successors ............................................................. 25
11. Governing Law; Counterparts ............................................ 25
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