EXHIBIT 10.15+
Opening Transaction
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CIT Group Inc.
To: 505 5th Avenue
New York, NY 10036
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A/C: 340018861
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From: BNP Paribas
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Re: Prepaid Enhanced VWAP Repurchase Transaction
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Ref. No: OP220JK
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Date: January 24, 2007
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This master confirmation ("Master Confirmation"), dated as of January 24,
2007, is intended to supplement the terms and provisions of certain Transactions
(each, a "Transaction") entered into from time to time between BNP Paribas
("BNPP") and CIT Group Inc. ("Counterparty"). This Master Confirmation, taken
alone, is neither a commitment by either party to enter into any Transaction nor
evidence of a Transaction. The terms of any particular Transaction shall be set
forth in a Supplemental Confirmation in the form of Schedule A hereto and which
references this Master Confirmation, in which event the terms and provisions of
this Master Confirmation shall be deemed to be incorporated into and made a part
of each such Supplemental Confirmation. This Master Confirmation and each
Supplemental Confirmation together shall constitute a "Confirmation" as referred
to in the Agreement specified below.
The definitions and provisions contained in the 2002 ISDA Equity
Derivatives Definitions (the "Equity Definitions"), as published by the
International Swaps and Derivatives Association, Inc., are incorporated into
this Master Confirmation. This Master Confirmation and each Supplemental
Confirmation evidence a complete binding agreement between the Counterparty and
BNPP as to the terms of each Transaction to which this Master Confirmation and
the related Supplemental Confirmation relates.
All provisions contained in or incorporated by reference in the form of
the 1992 ISDA Master Agreement (Multi-Currency Cross Border) (the "ISDA Form" or
the "Agreement") will govern this Master Confirmation and each Supplemental
Confirmation except as expressly modified below. This Master Confirmation and
each Supplemental Confirmation, together with all other documents referring to
the Agreement confirming Transactions entered into between BNPP and Counterparty
(notwithstanding anything to the contrary in a Confirmation), shall supplement,
form a part of, and be subject to the ISDA Form as if BNPP and Counterparty had
executed the Agreement (but without any Schedule except for (i) the election of
Loss and Second Method, New York law (without regard to the conflicts of law
principles) as the governing law and US Dollars ("USD") as the Termination
Currency, (ii) the election that subparagraph (ii) of Section 2(c) will not
apply to Transactions and (iii) the replacement of the word "third" in the last
line of Section 5(a)(i) with the word "first". Notwithstanding the terms of
Sections 5 and 6 of the Agreement, if at any time and so long as Counterparty
satisfied its payment obligations under Section 2(a)(i) of the Agreement in
respect of all Transactions and has at the time no further payment obligations
under such Section, then unless BNPP is required pursuant to appropriate
proceedings to return to
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+ Confidential portions of this agreement have been omitted and filed
separately with the Securities and Exchange Commission under a request for
confidential treatment. The portions of this agreement that have been
omitted and filed separately with the Securities and Exchange Commission
are denoted by the use of an asterisk in this agreement.
Counterparty, or otherwise returns to Counterparty upon demand of Counterparty,
any portion of any such payment (a) the occurrence of an event described in
Section 5(a) (excluding Sections 5(a)(ii) and 5(a)(iv)) of the Agreement with
respect to Counterparty shall not constitute an Event of Default or a Potential
Event of Default with respect to Counterparty as the Defaulting Party and (b)
BNPP shall be entitled to designate an Early Termination Date pursuant to
Section 6 of the Agreement only as a result of the occurrence of a Termination
Event set forth in (i) either Section 5(b)(i), 5(b)(ii) or 5(b)(v) of the
Agreement with respect to BNPP as the Affected Party or (ii) Section 5(b)(iii)
of the Agreement with respect to BNPP as the Burdened Party.
All provisions contained in the Agreement shall govern this Master
Confirmation and the related Supplemental Confirmation relating to a Transaction
except as expressly modified below or in the related Supplemental Confirmation.
With respect to any relevant Transaction, the Agreement, this Master
Confirmation and the related Supplemental Confirmation shall represent the
entire agreement and understanding of the parties with respect to the subject
matter and terms of such Transaction and shall supersede all prior or
contemporaneous written or oral communications with respect thereto.
If, in relation to any Transaction to which this Master Confirmation and
related Supplemental Confirmation relate, there is any inconsistency between the
Agreement, this Master Confirmation, any Supplemental Confirmation and the
Equity Definitions that are incorporated into any Supplemental Confirmation, the
following will prevail for purposes of such Transaction in the order of
precedence indicated: (i) such Supplemental Confirmation; (ii) this Master
Confirmation; (iii) the Agreement; and (iv) the Equity Definitions.
1. Each Transaction constitutes a Share Forward Transaction for the purposes of
the Equity Definitions. Set forth below are the terms and conditions which,
together with the terms and conditions set forth in each Supplemental
Confirmation (in respect of the relevant Transaction), shall govern each such
Transaction.
General Terms:
Trade Date: For each Transaction, as set forth in the
Supplemental Confirmation.
Buyer: Counterparty
Seller: BNPP
Shares: Common stock of Counterparty (Ticker: CIT)
Forward Price: The average of the New York 10b-18 Volume
Weighted Average Price per share of the
Shares for the regular trading session
(including any extensions thereof) for each
Exchange Business Day in the Calculation
Period (without regard to pre-open or after
hours trading outside of any regular trading
session for each Exchange Business Day), as
published by Bloomberg at 4:15 New York time
on each Exchange Business Day during the
Calculation Period.
[*]
Calculation Period: Each Exchange Business Day from and
including the Exchange Business Day
following the Initial Hedge Completion Date
to and including the Termination Date (as
adjusted in accordance with Section 6 herein
and pursuant to Market Disruption Event
below).
Termination Date: For each Transaction, as set forth in the
Supplemental Confirmation (as the same may
be postponed in accordance with the
provisions of "Calculation Period" and
Section 6 herein).
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* Confidential treatment has been requested and the redacted material has
been filed separately with the Securities and Exchange Commission.
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Hedge Period: For each Transaction, as set forth in the
Supplemental Confirmation.
Initial Hedge
Completion Date: For each Transaction, as set forth in the
Supplemental Confirmation.
Hedge Period Reference
Price: The average of the New York 10b-18 Volume
Weighted Average Price per share of the
Shares for the regular trading session
(including any extensions thereof) for each
Exchange Business Day in the Hedge Period
(without regard to pre-open or after hours
trading outside of any regular trading
session for each Exchange Business Day), as
published by Bloomberg.
Market Disruption Event: The definition of "Market Disruption Event"
in Section 6.3(a) of the Equity Definitions
is hereby amended by inserting the words "at
any time on any Scheduled Trading Day during
the Hedge Period or Calculation Period or"
after the word "material," in the third line
thereof.
Notwithstanding anything to the contrary in
the Equity Definitions, to the extent that
any Scheduled Trading Day in the Hedge
Period or Calculation Period is a Disrupted
Day, the Calculation Agent shall have the
option in its sole discretion to either (i)
determine the weighting of each Rule 10b-18
eligible transaction in the Shares on the
relevant Disrupted Day using its
commercially reasonable judgment for
purposes of calculating the Hedge Period
Reference Price or Forward Price, as
applicable, or (ii) elect to extend the
Hedge Period or Calculation Period, or both
in the event of a Disrupted Day in the Hedge
Period, as applicable, by one Scheduled
Trading Day.
Exchange: NYSE
Prepayment\Variable
Obligation: Applicable
Prepayment Amount: For each Transaction, as set forth in the
Supplemental Confirmation.
Prepayment Date: January 25, 2007.
Seller Payment Amount: Not Applicable.
Seller Payment Date: Not Applicable.
Counterparty Additional
Payment Amount: Not Applicable.
Counterparty Additional
Payment Date: Not Applicable.
Settlement Terms:
Physical Settlement: Applicable
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[*]
Settlement Date: Three (3) Exchange Business Days following
the Termination Date.
Settlement Currency: USD (all amounts shall be converted to the
Settlement Currency by the Calculation
Agent).
Initial Shares: For each Transaction, as set forth in the
Supplemental Confirmation.
Initial Share Delivery: BNPP shall deliver a number of shares equal
to the Initial Shares to Counterparty on the
Initial Share Delivery Date in accordance
with Section 9.4 of the Equity Definitions,
with the Initial Share Delivery Date deemed
to be a "Settlement Date" for purposes of
such Section 9.4.
Initial Share Delivery Date: January 29, 2007
Minimum Shares: For each Transaction, as set forth in the
Supplemental Confirmation.
Minimum Share Delivery: BNPP shall deliver a number of shares equal
to the excess, if any, of the Minimum Shares
over the Initial Shares on the Minimum Share
Delivery Date in accordance with Section 9.4
of the Equity Definitions, with the Minimum
Share Delivery Date deemed to be a
"Settlement Date" for purposes of such
Section 9.4.
Minimum Share Delivery
Date: Three (3) Exchange Business Days following
the Initial Hedge Completion Date.
Maximum Shares: For each Transaction, as set forth in the
Supplemental Confirmation.
Share Adjustments:
Method of Adjustment: Calculation Agent Adjustment.
Notwithstanding anything to the contrary in
the Equity Definitions, the declaration of
an Extraordinary Dividend by Counterparty
shall not constitute a Potential Adjustment
Event for purposes of Section 11.2(e) of the
Equity Definitions.
Extraordinary Events:
Consequences of
Merger Events and
Tender Offers:
(a) Share-for-Share: Modified Calculation Agent Adjustment;
provided that upon the occurrence of any
such Extraordinary Event, the Calculation
Agent shall adjust the Transaction to
preserve the economic condition of the
parties prior to such event by compensating
the parties for the Adjustment Value of the
Transaction as determined in accordance with
Section 12.7(b)(i) of the Equity
Definitions; provided that the Calculation
Agent shall determine such amount in
accordance with the method of calculation in
Section 12.7(b)(i) of the Equity Definitions
as if (i) the Transaction were an Option
Transaction and (ii) the "Expiration Date"
was the Termination Date. For purposes of
any such calculation, BNPP shall
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* Confidential treatment has been requested and the redacted material has
been filed separately with the Securities and Exchange Commission.
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determine the inputs used in such
calculation after consultation with
Counterparty.
(b) Share-for-Other: Cancellation and Payment (Agreed Model);
provided that the Calculation Agent shall
determine such amount in accordance with the
method of calculation in Section 12.7(b)(i)
of the Equity Definitions as if (i) the
Transaction were an Option Transaction and
(ii) the "Expiration Date" was the
Termination Date. For purposes of any such
calculation, BNPP shall determine the inputs
used in such calculation after consultation
with Counterparty, except to the extent BNPP
needs to calculate a price of the underlying
stock in connection with such calculation
(including the calculation of the
"Settlement Price"), BNPP shall determine
such price by reference to the volume
weighted average price per Share over a
reasonable time period after consulting with
Counterparty regarding the length of such
time period.
(c) Share-for-Combined: Component Adjustment
Determining Party: BNPP
Tender Offer: Applicable
Nationalization,
Insolvency or Delisting: Negotiated Close-out; provided that Section
12.6(c)(i) of the Equity Definitions shall
be amended by inserting a ";" after the word
"effect" in the fourth line thereof by and
deleting the remainder of the provision;
provided further that in addition to the
provisions of Section 12.6(a)(iii) of the
Equity Definitions, it shall also constitute
a Delisting if the Exchange is located in
the United States and the Shares are not
immediately re-listed, re-traded or
re-quoted on any of the New York Stock
Exchange, the American Stock Exchange or The
NASDAQ National Market (or their respective
successors); if the Shares are immediately
re-listed, re-traded or re-quoted on any
such exchange or quotation system, such
exchange or quotation system shall be deemed
to be the Exchange.
Additional Disruption Events:
(a) Change in Law: Applicable
(b) [*]
Hedging Party: BNPP
Determining Party: BNPP
Non-Reliance/Agreements and
Acknowledgements Regarding
Hedging Activities/Additional
Acknowledgements: Applicable
BNPP Payment Instructions:
Payment to BNP PARIBAS NEW-YORK
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* Confidential treatment has been requested and the redacted material has
been filed separately with the Securities and Exchange Commission.
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Swift code : BNPAUS3N
ABA Number 026007689
In favour of BNP PARIBAS PARIS
Swift code BNPAFRPP
Account number 0200194 0930 0136
2. Calculation Agent. BNPP
3. Additional Mutual Representations, Warranties and Covenants. In addition to
the representations and warranties in the Agreement, each party represents,
warrants and covenants to the other party that:
(a) Eligible Contract Participant. It is an "eligible contract
participant", as defined in the U.S. Commodity Exchange Act (as amended), it is
entering into each Transaction hereunder as principal and not for the benefit of
any third party, and each Transaction has been subject to individual negotiation
by the parties and has not been executed or traded on a "trading facility" as
defined in the U.S. Commodity Exchange Act (as amended);
(b) Accredited Investor. Each party acknowledges that the offer and sale
of each Transaction to it is intended to be exempt from registration under the
Securities Act of 1933, as amended (the "Securities Act"), by virtue of Section
4(2) thereof and the provisions of Regulation D thereunder ("Regulation D").
Accordingly, each party represents and warrants to the other that (i) it has the
financial ability to bear the economic risk of its investment in each
Transaction and is able to bear a total loss of its investment, (ii) it is an
"accredited investor" as that term is defined under Regulation D, (iii) it will
purchase each Transaction for investment and not with a view to the distribution
or resale thereof, and (iv) the disposition of each Transaction is restricted
under this Master Confirmation, the Securities Act and state securities laws;
4. Additional Representations, Warranties and Covenants of BNPP In
addition to the representations, warranties and covenants in the Agreement and
those contained herein, as of (i) the date hereof, (ii) the Trade Date and (iii)
to the extent indicated below, each day during the Hedge Period and Calculation
Period, BNPP represents, warrants and covenants to Counterparty that:
(a) (i) during all relevant times beginning the first day of the Hedge
Period through and including the Initial Hedge Completion Date, all purchases of
Shares in connection with its Hedge Positions related to this Transaction, and
(ii) in connection with purchases made during the Calculation Period up to the
Maximum Shares, it will comply with the provisions of Rule 10b-18(b)(2), (3) and
(4) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
subject to any delays between the execution and reporting of a trade of the
Shares on the Exchange and other circumstances beyond its reasonable control;
and
(b) it is not entering into any Transaction to create, and will not engage
in any other securities or derivative transaction to create, a false or
misleading appearance of active trading or market activity in the Shares (or any
security convertible into or exchangeable for the Shares), or which would
otherwise violate the Exchange Act.
5. Additional Representations, Warranties and Covenants of Counterparty.
In addition to the representations, warranties and covenants in the Agreement
and those contained herein, as of (i) the date hereof, (ii) the Trade Date and
(iii) to the extent indicated below, each day during the Hedge Period and
Calculation Period, Counterparty represents, warrants and covenants to BNPP
that:
(a) the purchase or writing of each Transaction will not violate Rule
13e-1 or Rule 13e-4 under the Exchange Act;
(b) it is not entering into any Transaction on the basis of, and is not
aware of, any material non-public information with respect to the Shares or in
anticipation of, in connection with, or to facilitate, a distribution of its
securities, a self tender offer or a third-party tender offer;
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(c) it is not entering into any Transaction to create, and will not engage
in any other securities or derivative transaction to create, a false or
misleading appearance of active trading or market activity in the Shares (or any
security convertible into or exchangeable for the Shares), or which would
otherwise violate the Exchange Act;
(d) each Transaction is being entered into pursuant to a publicly
disclosed Share buy-back program and its Board of Directors has approved the use
of derivatives to effect the Share buy-back program;
(e) notwithstanding the generality of Section 13.1 of the Equity
Definitions, it acknowledges that BNPP is not making any representations or
warranties with respect to the treatment of any Transaction under FASB
Statements 133 as amended or 150, EITF 00-19 (or any successor issue statements)
or under FASB's Liabilities & Equity Project;
(f) Counterparty is in compliance with its reporting obligations under the
Exchange Act and its most recent Annual Report on Form 10-K, together with all
reports subsequently filed by it pursuant to the Exchange Act, taken together
and as amended and supplemented to the date of this representation, do not, as
of their respective filing dates, contain any untrue statement of a material
fact or omit any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances in which they
were made, not misleading;
(g) Counterparty shall report each Transaction as required under
Regulation S-K and/or Regulation S-B under the Exchange Act, as applicable;
(h) On the Trade Date the Shares or securities that are convertible into,
or exchangeable or exercisable for Shares are not subject to a "restricted
period" as such term is defined in Regulation M promulgated under the Exchange
Act and Counterparty agrees to provide written notice to BNPP to the extent the
Shares or securities that are convertible into, or exchangeable or exercisable
for Shares become subject to a "restricted period"; and
(i) Counterparty acknowledges that each Transaction is a derivatives
transaction in which it has granted BNPP an option. BNPP may purchase shares for
its own account at an average price that may be greater than, or less than, the
price paid by Counterparty under the terms of the related Transaction.
6. Suspension of Hedge Period and/or Calculation Period.
(a) If Counterparty concludes that it will be engaged in a distribution of
the Shares for purposes of Regulation M, Counterparty agrees that it will, on
one Scheduled Trading Day's written notice, direct BNPP not to purchase Shares
in connection with hedging any Transaction during the "restricted period" (as
defined in Regulation M). If on any Scheduled Trading Day Counterparty delivers
written notice (and confirms by telephone) by 8:30 a.m. New York Time (the
"Notification Time") then such notice shall be effective to suspend the
Calculation Period or the Hedge Period, as the case may be, as of such
Notification Time. In the event that Counterparty delivers notice and/or
confirms by telephone after the Notification Time, then the Calculation Period
or the Hedge Period, or both, as the case may be, shall be suspended effective
as of 8:30 a.m. New York Time on the following Scheduled Trading Day or as
otherwise required by law or agreed between Counterparty and BNPP. The
Calculation Period or the Hedge Period, as the case may be, shall be suspended
and the Termination Date or the Initial Hedge Completion Date, as the case may
be, extended for each Scheduled Trading Day in such restricted period.
(b) In the event that BNPP concludes upon the advice of reputable counsel
that is required with respect to any legal, regulatory or self-regulatory
requirements for it to refrain from purchasing Shares on any Scheduled Trading
Day during the Hedge Period or the Calculation Period due to events outside the
control of both parties, BNPP may by written notice to Counterparty elect to
suspend the Hedge Period or the Calculation Period for such number of Scheduled
Trading Days as is specified in the notice. The notice shall not specify, and
BNPP shall not otherwise communicate to Counterparty, the reason for BNPP's
election to suspend the Hedge Period or the Calculation Period. The Calculation
Period or the Hedge Period or both, as the case may be, shall be suspended and
the Termination Date or the Initial Hedge Completion Date, as the case may be,
extended for each Scheduled Trading Day in such period.
(c) In the event that the Calculation Period or the Hedge Period, as the
case may be, is suspended pursuant to Section 6(a) above during the regular
trading session on the Exchange then the Calculation Agent in its
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good faith commercially reasonable discretion and after consultation with
Counterparty shall, in calculating the Forward Price, extend the Calculation
Period or the Hedge Period, or both, as the case may be, or make adjustments to
the weighting of each Rule 10b-18 eligible transaction in the Shares on the
relevant Exchange Business Days during the Calculation Period or the Hedge
Period, as the case may be, for purposes of determining the Forward Price, with
such adjustments based on, among other factors, the duration of any such
suspension and the volume, historical trading patterns and price of the Shares.
7. Counterparty Purchases. Counterparty represents, warrants and covenants to
BNPP that for each Transaction:
(a) Counterparty is entering into this Master Confirmation and each
Transaction hereunder in good faith and not as part of a plan or scheme to evade
the prohibitions of Rule 10b5-1 under the Exchange Act ("Rule 10b5-1"). It is
the intent of the parties that each Transaction entered into under this Master
Confirmation comply with the requirements of Rule 10b5-1(c)(1)(i)(A) and (B) and
each Transaction entered into under this Master Confirmation shall be
interpreted to comply with the requirements of Rule 10b5-1(c). Counterparty will
not seek to control or influence BNPP to make "purchases or sales" (within the
meaning of Rule 10b5-1(c)(1)(i)(B)(3)) under any Transaction entered into under
this Master Confirmation, including, without limitation, BNPP's decision to
enter into any hedging transactions. Counterparty represents and warrants that
it has consulted with its own advisors as to the legal aspects of its adoption
and implementation of this Master Confirmation, each Supplemental Confirmation
and each Trade Notification under Rule 10b5-1.
(b) During the Hedge Period and Calculation Period, Counterparty (or any
"affiliated purchaser" as defined in Rule 10b-18 under the Exchange Act ("Rule
10b-18")) shall not without the prior written consent of BNPP directly or
indirectly purchase any Shares, listed contracts on the Shares or securities
that are convertible into, or exchangeable or exercisable for Shares (including,
without limitation, any Rule 10b-18 purchases of blocks (as defined in Rule
10b-18)) during any Hedge Period or Calculation Period, except through BNPP and
in compliance with Rule 10b-18 or otherwise in a manner that Counterparty and
BNPP believe is in compliance with applicable requirements;
8. Additional Termination Events. Additional Termination Event will apply. The
following will constitute Additional Termination Events, in each case with
Counterparty as the sole Affected Party:
(a) Notwithstanding anything to the contrary in the Equity Definitions,
the occurrence of a Nationalization, Insolvency or a Delisting (in each case
effective on the Announcement Date as determined by the Calculation Agent); and
(b) Notwithstanding anything to the contrary in the Equity Definitions, an
Extraordinary Dividend is declared by the Issuer. "Extraordinary Dividend" means
the dividend amount per Share (declared by Counterparty to holders of record of
a Share on any record date occurring during the period from and including the
first day of the Hedge Period to and including the Termination Date) in excess
of USD 0.25 per Share per quarter.
9. Certain Payments and Deliveries. Notwithstanding anything to the contrary
herein, or in the Equity Definitions, if at any time (i) an Early Termination
Date occurs and BNPP would be required to make a payment pursuant to Sections
6(d) and 6(e) of the Agreement, (ii) a Tender Offer occurs and BNPP would be
required to make a payment pursuant to Sections 12.3 and 12.7 of the Equity
Definitions, (iii) a Merger Event occurs and BNPP would be required to make a
payment pursuant to Sections 12.2 and 12.7 of the Equity Definitions or (iv) an
Additional Disruption Event occurs and BNPP would be required to make a payment
pursuant to Sections 12.8 and 12.9 of the Equity Definitions, then in lieu of
such payment, BNPP shall deliver to Counterparty, at the time such payment would
have been due and in the manner provided under "Physical Settlement" in the
Equity Definitions, a number of Shares (or, in the case of a Merger Event,
common equity securities of the surviving entity) equal to the quotient obtained
by dividing (A) the amount that would have been so payable by (B) the fair
market value per Share (or per unit of such common equity security) of the
Shares (or units) so delivered at the time of such delivery, as determined by
the Calculation Agent in a commercially reasonable manner.
For purposes of calculating any amount due under (i) Section 6(d) and 6(e)
of the Agreement in connection with an Early Termination Date or (ii) pursuant
to Section 12.8 of the Equity Definitions upon the occurrence of any Additional
Disruption Event listed herein, the Calculation Agent shall determine such
amount in accordance with the
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method of calculation in Section 12.7(b)(i)(A) of the Equity Definitions as if
(i) the Transaction were an Option Transaction (ii) the "Closing Date" was the
Early Termination Date or the date of such Additional Disruption Event and (iii)
the "Expiration Date" was the Termination Date. The Calculation Agent hereby
agrees to provide the parties with a statement of its calculation hereunder, and
both parties agree to keep such statement confidential.
For purposes of the valuation of any amounts due in connection with any
Early Termination Date or Additional Disruption Event., BNPP shall determine the
inputs used in such calculation after consultation with Counterparty, except to
the extent BNPP needs to calculate a price of the underlying stock in order to
value its Hedge Positions (including the calculation of the "Settlement Price"),
BNPP shall determine such price by reference to the volume weighted average
price per Share over a reasonable time period after consulting with Counterparty
regarding the length of such time period.
10. Special Provisions for Merger Events. Notwithstanding anything to the
contrary herein or in the Equity Definitions, to the extent that an Announcement
Date for a potential Merger Transaction occurs during any Hedge Period:
(a) Promptly after request from BNPP, Counterparty shall provide BNPP with
written notice specifying (i) Counterparty's average daily Rule 10b-18 Purchases
(as defined in Rule 10b-18) during the three full calendar months immediately
preceding the Announcement Date that were not effected through BNPP or its
affiliates and (ii) the number of Shares purchased pursuant to the proviso in
Rule 10b-18(b)(4) under the Exchange Act for the three full calendar months
preceding the Announcement Date. Such written notice shall be deemed to be a
certification by Counterparty to BNPP that such information is true and correct.
Counterparty understands that BNPP will use this information in calculating the
trading volume for purposes of Rule 10b-18; and
(b) BNPP in its sole discretion may extend the Initial Hedge Completion
Date and the Termination Date to account for the number of Shares that could be
purchased on each day during the Hedge Period in compliance with Rule 10b-18
following the Announcement Date. 13.
"Merger Transaction" means any merger, acquisition or similar transaction
involving a recapitalization as contemplated by Rule 10b-18(a)(13)(iv) under the
Exchange Act.
11. Special Provisions for Counterparty Payments. The parties hereby agree that,
notwithstanding anything to the contrary herein or in the Agreement, in the
event that (i) an Early Termination Date (whether as a result of an Event of
Default or a Termination Event) occurs or is designated with respect to any
Transaction and, as a result, Counterparty owes to Bank. an amount calculated
under Section 6(e) of the Agreement or (ii) an Extraordinary Event occurs that
results in the termination or cancellation of any Transaction pursuant to
Article 12 of the Equity Definitions and, as a result, Counterparty owes to Bank
a cancellation amount or other amount in respect of such Transaction (in each
case, calculated as if the Transactions being terminated or cancelled on such
Early Termination Date or as a result of such Extraordinary Event were the sole
Transactions under the Agreement), such amount shall be deemed to be zero.
12. Governing Law. The Agreement, this Master Confirmation, each Supplemental
Confirmation and all matters arising in connection with the Agreement, this
Master Confirmation and each Supplemental Confirmation shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York.
13. Waiver of Trial by Jury. Each party waives, to the fullest extent permitted
by applicable law, any right it may have to a trial by jury in respect of any
suit, action or proceeding relating to this Master Confirmation.
14. Counterparts. This Master Confirmation may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Master Confirmation by signing and delivering one
or more counterparts.
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15. Counterparty hereby agrees (a) to check this Master Confirmation carefully
and immediately upon receipt so that errors or discrepancies can be promptly
identified and rectified and (b) to confirm that the foregoing (in the exact
form provided by BNPP) correctly sets forth the terms of the agreement between
BNPP and Counterparty with respect to any particular Transaction to which this
Master Confirmation relates, by manually signing this Master Confirmation or
this page hereof as evidence of agreement to such terms and providing the other
information requested herein and immediately returning an executed copy to BNP
Paribas, Facsimile No. 212-471-7990.
Yours faithfully,
BNP PARIBAS
By:
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Name:
Title:
Agreed and Accepted By:
CIT GROUP INC.
By:
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Name:
Title:
[CIT VWAP Master Confirmation]
SCHEDULE A
SUPPLEMENTAL CONFIRMATION
CIT Group Inc.
To: 505 5th Avenue
New York, NY 10036
From: BNP PARIBAS
Subject: Issuer VWAP Prepaid Share Forward Transaction
Ref. No: OP220JK
Date: January 24, 2007
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The purpose of this Supplemental Confirmation is to confirm the terms and
conditions of the Transaction entered into between BNP Paribas ("BNPP") and CIT
Group Inc. ("Counterparty") (together, the "Contracting Parties") on the Trade
Date specified below. This Supplemental Confirmation is a binding contract
between BNPP and Counterparty as of the relevant Trade Date for the Transaction
referenced below.
The definitions and provisions contained in the Master Confirmation
specified below are incorporated into this Supplemental Confirmation. In the
event of any inconsistency between those definitions and provisions and this
Supplemental Confirmation, this Supplemental Confirmation will govern.
1. This Supplemental Confirmation supplements, forms part of, and is subject to
the Master Confirmation dated as of January 24, 2007 (the "Master Confirmation")
between the Contracting Parties, as amended and supplemented from time to time.
All provisions contained in the Master Confirmation govern this Supplemental
Confirmation except as expressly modified below.
2. The terms of the Transaction to which this Supplemental Confirmation relates
are as follows:
Trade Date: January 24, 2007
Hedge Period: Each Exchange Business Day from and
including January 25, 2007 to and
including the Initial Hedge Completion
Date.
Initial Hedge Completion Date: [*] (as the same may be postponed in
accordance with the provisions of
"Market Disruption Event" and Section 6
of the Master Confirmation)
Termination Date: [*]
Prepayment Amount: USD $500,000,000
Counterparty Additional
Payment Amount: Not Applicable
Seller Payment Amount: Not Applicable
[*]
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* Confidential treatment has been requested and the redacted material has
been filed separately with the Securities and Exchange Commission.
A-1
Initial Shares: The number of Shares equal to the
product of (i) [*]% and (ii) the
Prepayment Amount divided by [*]% of the
Closing Price.
Closing Price: The price per Share determined by the
Calculation Agent as of the Valuation
Time on the Exchange Business Day
immediately preceding the first day of
the Hedge Period, as reported in the
official real-time price dissemination
mechanism for the Exchange.
Minimum Shares: A number of shares equal to (a) the
Prepayment Amount divided by (b) [*]% of
the Hedge Period Reference Price, or, if
greater, the Initial Shares.
Maximum Shares: A number of shares equal to (a) the
Prepayment Amount divided by (b) [*]% of
the Hedge Period Reference Price, or, if
greater, the Initial Shares.
3. Counterparty represents and warrants to BNPP that neither it nor any
"affiliated purchaser" (as defined in Rule 10b-18 under the Exchange Act) has
made any purchases of blocks pursuant to the proviso in Rule 10b-18(b)(4) under
the Exchange Act during the four full calendar weeks immediately preceding the
Trade Date.
4. Counterparts. This Supplemental Confirmation may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Supplemental Confirmation by signing and
delivering one or more counterparts.
Counterparty hereby agrees (a) to check this Supplemental Confirmation
carefully and immediately upon receipt so that errors or discrepancies can be
promptly identified and rectified and (b) to confirm that the foregoing (in the
exact form provided by BNPP) correctly sets forth the terms of the agreement
between BNPP and Counterparty with respect to this Transaction, by manually
signing this Supplemental Confirmation or this page hereof as evidence of
agreement to such terms and providing the other information requested herein and
immediately returning an executed copy to BNP Paribas, facsimile No.
212-471-7990.
Yours sincerely,
BNP PARIBAS
By:
-------------------------------------
Name:
Title:
Agreed and Accepted By:
CIT GROUP INC.
By:
----------------------------------
Name:
Title:
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* Confidential treatment has been requested and the redacted material has
been filed separately with the Securities and Exchange Commission.
A-2
[CIT VWAP SUPPLEMENTAL CONFIRMATION]
SCHEDULE B
TRADE NOTIFICATION
CIT Group Inc.
To: 505 5th Avenue
New York, NY 10036
From: BNP PARIBAS
Subject: Issuer VWAP Prepaid Share Forward Transaction
Ref. No: OP220JK
Date: [Insert Date]
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The purpose of this Trade Notification is to notify you of certain terms
in the Transaction entered into between BNP Paribas ("BNPP") and CIT Group Inc.
("Counterparty") (together, the "Contracting Parties") on the Trade Date
specified below.
The definitions and provisions contained in the Supplemental Confirmation
specified below are incorporated into this Trade Notification. In the event of
any inconsistency between those definitions and provisions and this Trade
Notification, this Trade Notification will govern.
This Trade Notification supplements, forms part of, and is subject to the
Supplemental Confirmation dated as of January 24, 2007 (the "Supplemental
Confirmation") between the Contracting Parties, as amended and supplemented from
time to time. All provisions contained in the Supplemental Confirmation govern
this Trade Notification.
Trade Date: January 24, 2007
Minimum Shares: [ ]
Maximum Shares: [ ]
Yours sincerely,
BNP PARIBAS
By:
-------------------------------------
Name:
Title: