EXHIBIT 1.1
Execution Version
SELLING AGENT AGREEMENT
by and among
CIT Group Inc.
and the
Agents named herein
November 1, 2002
November 1, 2002
To the Agents listed on
the signature page hereto.
CIT Group Inc., a Delaware corporation (the "Company"), proposes to
issue and sell up to $2,000,000,000 aggregate principal amount of its
InterNotes'r' due nine months or more from date of issue (the "Notes"). The
Notes are to be issued pursuant to an indenture, dated as of August 26, 2002
(the "Indenture") among the Company, Bank One Trust Company, N.A., as trustee
(the "Trustee") and Bank One NA, London Branch, as London Paying Agent and
London Calculation Agent. The terms of the Notes are described in the Prospectus
referred to below.
Subject to the terms and conditions contained in this Agreement, the
Company hereby (1) appoints each of you as agent of the Company ("Agent") for
the purpose of soliciting offers to purchase Notes and each of you hereby agree
to use your reasonable best efforts to solicit offers to purchase Notes upon
terms acceptable to the Company at such times and in such amounts as the Company
shall from time to time specify and in accordance with the terms hereof, and
after consultation with Incapital LLC (the "Purchasing Agent") and (2) agrees
that whenever the Company determines to sell Notes pursuant to this Agreement,
such Notes shall be sold pursuant to a Terms Agreement (as defined herein)
relating to such sale in accordance with the provisions of Section V hereof
between the Company and the Purchasing Agent, with the Purchasing Agent
purchasing such Notes as principal for resale to other Agents or dealers (the
"Selected Dealers"), each of whom will purchase as principal. The Company
reserves the right to enter into agreements substantially similar hereto with
other agents.
I.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement No. 333-92258 (the "Initial Registration
Statement"). The Company has also filed an additional registration statement No.
333-98743 (the "Additional Registration Statement" and, together with the
Initial Registration Statement, the "Registration Statement") that included a
base prospectus which sets forth the general terms of the Notes (the "Basic
Prospectus"). Under the Registration Statement, the Notes may be offered
thereof, from time to time, in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "1933 Act"). The Registration Statement has been
declared effective by the SEC, and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). The Basic
Prospectus and prospectus supplement, dated as of the date hereof, relating to
the Notes, filed pursuant to Rule 424 under the 1933 Act, including all
documents incorporated therein by reference, as from time to time amended or
supplemented, including any Pricing Supplement (as defined herein), are referred
to herein as the "Prospectus."
II.
The Agents' obligations hereunder are subject to the following
conditions:
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InterNotes'r' is a registered servicemark of Incapital Holdings LLC
(a) 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, shall be
contemplated by the SEC.
(b) On the date hereof, the Agents shall have received a legal opinion
or legal opinions, dated as of the date hereof, of Robert J. Ingato, Executive
Vice President and General Counsel of the Company and Schulte Roth & Zabel LLP,
or other counsel of the Company reasonably satisfactory to the Agents and their
counsel, collectively to the effect that:
(1) the Company is a corporation validly organized and existing and
in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and 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;
(2) the Indenture has been duly authorized, executed and delivered
and, assuming due and valid execution and delivery by the Trustee
thereunder, is a valid instrument legally binding upon the Company,
enforceable in accordance with its terms (except as enforcement thereof
may be limited by bankruptcy, reorganization, insolvency, moratorium,
or other laws affecting the enforcement of creditors' rights generally
and by general principles of equity); the Notes have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
purchasers thereof, will constitute legal, valid and binding
obligations of the Company (except as enforcement thereof may be
limited by bankruptcy, reorganization, insolvency, moratorium or other
laws affecting the enforcement of creditors' rights generally and by
general principles of equity) and will be entitled to the benefits
provided by the Indenture; the Notes and the Indenture conform to the
descriptions thereof in the Prospectus as supplemented by the
applicable Pricing Supplement; and the Indenture has been duly
qualified under the Trust Indenture Act;
(3) the Registration Statement and any amendments thereto have
become effective under the 1933 Act; to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement, as amended, or of any part thereof has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the 1933 Act; the Registration Statement
and the Prospectus, and any amendment or supplement thereto, comply as
to form in all material respects with the requirements of the 1933 Act
and the rules and regulations of the SEC promulgated pursuant to such
Act (the "1933 Regulations"); the Indenture complies as to form in all
material respects with the requirements of the Trust Indenture Act and
the rules and regulations of the SEC promulgated pursuant to such Act
(the "Trust Indenture Regulations"); no facts have come to such
counsel's attention which have led him to believe that any part of the
Registration Statement or any amendment thereof, at the time it became
effective and on the date of the signing of this Agreement, contained
or contains any untrue statement of a material fact or omitted or omits
to state any material fact required to be stated therein or necessary
to make the statements therein not
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misleading or that the Prospectus or any amendment or supplement
thereto, as of its date or as of the date and time of delivery of Notes
to any purchaser or to the Agents as purchaser, included or includes
any untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; the
descriptions in the Registration Statement and Prospectus of statutes
and other documents are accurate and fairly present the information
required to be shown; and such counsel does not know of any legal or
governmental proceedings required to be described in the Registration
Statement or Prospectus which are not described as required, or of 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;
it being understood that such counsel need express no opinion as to the
financial statements or other financial or statistical data contained
in the Registration Statement or the Prospectus;
(4) the documents incorporated by reference in the Prospectus, when
they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act of 1934
Act, as amended (the "1934 Act") and the rules and regulations of the
Commission promulgated pursuant to such Act (the "1934 Regulations"
and, together with the 1933 Regulations and the Trust Indenture
Regulations, the "Rules and Regulations"); it being understood that
such counsel need express no opinion as to the financial statements or
other financial data contained in such documents;
(5) no consent, approval, authorization or other order of or filing
with any regulatory authority or other governmental body is required in
connection with the execution and delivery of the Indenture, the
issuance and sales of the Notes by the Company pursuant to this
Agreement or consummation by the Company of the transactions
contemplated by the Indenture, the Notes and this Agreement, other than
the orders of the Commission under the 1933 Act and the Trust Indenture
Act which have been obtained and such approvals as may be required
under state securities laws, as to which such counsel need express no
opinion;
(6) the issue and sale of the Notes and the compliance by the
Company with the provisions of the Notes and the Indenture will not
conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known to
such counsel to which the Company is a party or by which the Company is
bound, nor will such action result in a violation of the provisions of
the Restated Certificate of Incorporation or the By-laws of the
Company, as amended, or any law, statute or any order, rule or
regulation known to such counsel of any court or governmental agency
having jurisdiction over the Company;
(7) 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 1933 Act), is validly organized and existing and in good
standing, has the corporate power to transact the business in which it
is engaged, is duly qualified and in good standing as a foreign
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corporation in each of the several states and jurisdictions where its
business requires such qualification and is duly licensed to carry on
such business in each of the several states and jurisdictions where its
business requires such licensing and where the failure to be so
licensed would have a material adverse effect on the consolidated
financial position and results of operations of the Company;
(8) the Company is not required to be registered under the
Investment Company Act of 1940, as amended; and
(9) this Agreement has been duly authorized, executed and delivered
by the Company.
(c) On the date hereof, the Agents shall have received from Wilmer,
Cutler & Pickering, counsel for the Agents, such opinion or opinions, dated as
of the date hereof, with respect to the Indenture, 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.
(d) On the date hereof, the Agents shall have received a certificate,
dated as of the date hereof, 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 hereof, (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, to the best of his knowledge, no proceedings
for that purpose have been instituted or are contemplated by the Commission,
(iv) 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 (v)
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, and also
attached thereto is a letter of the Company's independent public accountants,
reporting on their review of such calculations.
(e) On the date hereof, the Agents shall have received a letter, dated
as of the date hereof, of the Company's independent public accountants
confirming that they are independent public accountants within the meaning of
the 1933 Act and the published Rules and Regulations and to the effect that (i)
in their opinion, the financial statements and financial schedules audited by
them and included in or incorporated by reference into the Registration
Statement and the Prospectus comply in form in all material respects with the
applicable accounting requirements
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of the 1933 Act, the 1934 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 generally accepted auditing standards)
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 or
incorporated by reference into the Registration Statement and the Prospectus do
not comply in form in all material respects with the applicable accounting
requirements of the 1934 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 or incorporated by
reference into the Registration Statement and the Prospectus, or (x) with
respect to the period after the date of the most recent financial statements
included in or incorporated by reference into the Registration Statement and the
Prospectus, there was any change, when compared to the most recent internal
balance sheet, in the capital stock or total debt of the Company or any decrease
in the consolidated total assets, total shareholder's equity, finance
receivables or reserve for credit losses on finance receivables of the Company
as compared with the amounts shown on the most recent consolidated balance sheet
included in or incorporated by reference into the Registration Statement and the
Prospectus, or (y) with respect to the period after the date of the most recent
financial statements included in or incorporated by reference into the
Registration Statement and the Prospectus and subsequent to the most recent
internal balance sheet through a specified date not more than three business
days prior to the date of the letter there was any change in the capital stock
or total debt of the Company or any decrease in the consolidated total assets,
total shareholder's equity, finance receivables or reserve for credit losses on
finance receivables of the Company as compared with the amounts shown on the
most recent consolidated balance sheet included in or incorporated by reference
into the Registration Statement and the Prospectus, or (z) for the period from
the date of the most recent financial statements included in or incorporated by
reference into the Registration Statement and the Prospectus to such specified
date not more than three business days prior to the date of the letter there
were any quantifiable decreases, as compared with the corresponding period in
the preceding year, in consolidated net 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 or incorporated by reference into 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 of 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.
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(f) On the date hereof, the Agents shall have received from Schulte
Roth & Zabel LLP, counsel for the Company, an opinion or opinions 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 Considerations"
in the Prospectus Supplement is accurate in all material respects.
(g) On the date hereof and on each Settlement Date with respect to any
purchase of Notes by the Purchasing Agent, counsel to the Agents shall have been
furnished with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the issuance and
sale of Notes as herein contemplated, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the fulfillment of
any of the conditions, contained herein; and all proceedings taken by the
Company in connection with the issuance and sale of Notes as herein contemplated
shall be satisfactory in form and substance to the Purchasing Agent and to
counsel to the Agents.
The obligations of the Agents to purchase Notes as principal, both
under this Agreement and under any Terms Agreement, will be subject to the
following further conditions: (i) no litigation or proceeding shall be
threatened or pending to restrain or enjoin the issuance or delivery of the
Notes, or which in any way questions or affects the validity of the Notes, (ii)
the rating assigned by any nationally recognized securities rating agency to any
debt securities of the Company as of the date of the agreement to purchase Notes
as principal shall not have been lowered and no such rating agency shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its ratings of any debt securities of the Company since
that date; (iii) there shall not have come to the attention of the Agent any
facts that would cause such Agent to believe that the Prospectus, at the time it
was required to be delivered to a purchaser of the Notes, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances existing at
such time, not misleading and (iv) there shall have been no material adverse
change in the consolidated financial condition of the Company and its
subsidiaries, taken individually or as a whole, from that set forth in the
Registration Statement and the Prospectus, each of which conditions shall be met
on the corresponding Settlement Date.
If any condition specified in this Section II shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the applicable Agent or Agents by notice to the Company at any time and any
such termination shall be without liability of any party to any other party,
except that the covenant regarding provision of an earnings statement set forth
in Section III(c) hereof, the indemnity and contribution agreements set forth in
Section VIII hereof, the provisions concerning payment of expenses under Section
XIII hereof, the provisions concerning the representations, warranties and
agreements to survive delivery of Section IX hereof, the provisions relating to
governing law and forum set forth in Section XII and the provisions relating to
parties set forth in Section XI hereof shall remain in effect.
III.
In further consideration of the Agents' agreements herein contained,
the Company covenants and agrees with the Agents as follows:
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(a) The Company will advise 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
additional Notes, and in any case prior to the termination of the offering of
the Notes pursuant to this Agreement, will provide each Agent with a reasonable
opportunity to comment thereon and will advise the Agents promptly of 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 and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued. 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 additional registration statement shall have
become effective, (iii) 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 (iv) 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.
(b) If, at any time when a Prospectus relating to the Notes is required
to be delivered under the 1933 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 1933 Act
immediate notice shall be given, and confirmed in writing, to the Agents to
cease the offer and sale of any Notes, and the Company promptly will prepare and
file with the Commission an amendment or supplement which will correct such
untrue statement or omission or an amendment which will effect such compliance.
(c) The Company will make generally available to its security holders
and to each Agent as soon as practicable, but not later than 45 days after the
close of each of the first three fiscal quarters of each fiscal year and 90 days
after the close of each fiscal year, earnings statements (in form complying with
the provisions of Rule 158 under the 1933 Act) which in the aggregate cover a
twelve-month period beginning not later than the first day of the fiscal quarter
next following the effective date of the Registration Statement (as defined in
Rule 158) with respect to each sale of Notes.
(d) The Company will furnish each Agent with copies of the Registration
Statement, and, to the extent requested by such Agent, 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.
(e) The Company will use its best efforts to qualify the Notes for sale
under the laws of such jurisdictions of the United States as the Agents may
reasonably request, will continue such qualifications in effect so long as
required for the sale of the Notes hereunder and will provide or cause to be
provided to the Agent a "blue sky" memorandum relating to the Notes; provided,
however, that the Company shall not be obligated (i) to qualify as a foreign
corporation or as a dealer in securities or to execute or file any consents to
service of process
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under the laws of any such state or (ii) to prepare more than one "blue sky"
memorandum per year relating to its debt securities registered under the
Registration Statement.
(f) 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)
providing for a reduction of the aggregate amount of Notes being offered, (iii)
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 1933 Act, (iv) providing
solely for the specification of the terms of the Notes (excluding any change in
the formula by which interest rates on the Notes may be determined) or (v)
occurring due to incorporation by reference of a Form 8-K of the Company with
respect to non-financial information or an earnings release) 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 II(d) hereof
that was last furnished to the Agents (either pursuant to Section II(d) hereof
or pursuant to this Section III(f)) 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 II(d) 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.
(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, 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 Schulte Roth & Zabel 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) providing for a reduction of the aggregate amount of Notes being offered,
(iii) 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 1933 Act, (iv) providing
solely for the specification of the terms of the Notes (excluding any change in
the formula by which interest rates on the Notes may be determined), or (v)
occurring due to
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incorporation by reference of a Form 8-K of the Company with respect to
non-financial information or an earnings release. 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 II(b) 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)).
(h) 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 into the Registration Statement or the Prospectus (other than by an
amendment or supplement occurring due to incorporation by reference of a Form
8-K of the Company with respect to an earnings release), the Company shall, upon
the request of an Agent, unless a letter is otherwise furnished pursuant to
Section VII(d) hereof, cause its independent public accountants, 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 II(e)
hereof with such changes as may be necessary to reflect the amended and
supplemental financial information included in or incorporated by reference into
the Registration Statement and the Prospectus, as amended or supplemented to the
date of such letter.
(i) 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 Statement, as then amended, does not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary in order the make the statements therein not misleading, nor does
the Prospectus, as then amended or supplemented, 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, in the light of the
circumstances under which they were made, not misleading.
(j) Each acceptance by the Company of an offer to purchase Notes will
be deemed to be an affirmation that the Company is in compliance with all
provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act Relating to
Disclosure of Doing Business with Cuba, and the rules and regulations applicable
thereunder. The Company further agrees that if it commences engaging in business
with the government of Cuba or with any person or affiliate located in Cuba
after the date the Registration Statement becomes or has become effective with
the Commission or with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business
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with Cuba or with any person or affiliate located in Cuba changes in any
material way, the Company will provide the Department notice of such business or
change, in accordance with the rules and regulations of such Department, in a
form acceptable to the Department.
(k) The Company, during the period when the Prospectus is required to
be delivered under the 1933 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
1934 Act.
(l) The Company shall not be required to comply with the provisions of
subsections (a) or (b) of this Section during any period from the time no Agent
shall then hold any Notes purchased as principal pursuant hereto, until the time
the Company shall determine that an Agent shall subsequently purchase Notes from
the Company as principal.
(m) 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 file
such Pricing Supplement pursuant to Rule 424(b) under the 1933 Act.
(n) The Company, in relation to any Notes that are to be listed on a
stock exchange as may be agreed between the Company and the relevant Agent(s),
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.
(o) If requested by an Agent in connection with a purchase by it of
Notes as principal in accordance with Section IV(a) hereof, such transaction
shall be subject to the terms of any stand-off provision as may be agreed by the
Company and the applicable Agent at the time of such agreement to purchase Notes
as principal.
IV.
(a) Notes shall be purchased by each Agent as principal. The Agents
shall offer the Notes upon the terms and conditions set forth herein and in the
Prospectus and upon the terms communicated to the Agents from time to time by
the Company or the Purchasing Agent, as the case may be (which terms, unless
otherwise agreed, may be agreed upon orally, with written confirmation prepared
by such Agent or Agents and sent by telecopier to the Company). For the purpose
of such sales the Agents will use the Prospectus as then amended or supplemented
which has been most recently distributed to the Agents by the Company, and the
Agents will offer and sell the Notes only as permitted or contemplated thereby
and herein and will offer and sell the Notes only as permitted by the 1933 Act
and the applicable securities laws or regulations of any jurisdiction. An
Agent's commitment to purchase Notes as principal shall be deemed to have been
made on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Unless the context otherwise requires, references herein to "this Agreement"
shall include the agreement of one or more Agents to purchase Notes from the
Company as principal.
10
The Company agrees to sell the Notes to the Purchasing Agent at a
discount equal to the percentages of the initial offering price of each Note
actually sold as set forth in Exhibit A hereto; provided, however, that the
Company and the Purchasing Agent may agree instead to a discount greater than or
less than the percentages set forth on Exhibit A hereto. The actual aggregate
discount with respect to each sale of Notes will be set forth in the related
Pricing Supplement. The Purchasing Agent and the other Agents or Selected
Dealers will share the above-mentioned discount in such proportions as they may
agree.
(b) Procedural details relating to the issue and delivery of, and the
solicitation of purchases and payment for, the Notes are set forth in the
Administrative Procedures attached hereto as Exhibit B (the "Procedures"), as
amended from time to time. Unless otherwise provided in a Terms Agreement, the
provisions of the Procedures shall apply to all transactions contemplated
hereunder. The Agents and the Company each agree to perform the respective
duties and obligations specifically provided to be performed by each in the
Procedures as amended from time to time. The Procedures may only be amended by
written agreement of the Company and the Agents.
V.
Each sale of Notes shall be made in accordance with the terms of this
Agreement, the Procedures and a separate agreement in substantially the form
attached as Exhibit C (a "Terms Agreement") to be entered into which will
provide for the sale of such Notes to, and the purchase and reoffering thereof,
by the Purchasing Agent as principal. A Terms Agreement may also specify certain
provisions relating to the reoffering of such Notes by the Purchasing Agent. The
offering of Notes by the Company hereunder and the Purchasing Agent's agreement
to purchase Notes pursuant to any Terms Agreement shall be deemed to have been
made on the basis of the representations, warranties and agreements of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Each Terms Agreement shall describe the Notes to be purchased
pursuant thereto by the Purchasing Agent as principal, and may specify, among
other things, the principal amount of Notes to be purchased, the interest rate
and maturity date or dates of such Notes, the interest payment dates, if any,
the net proceeds to the Company, the initial public offering price at which the
Notes are proposed to be reoffered, and the time, date (the "Settlement Date")
and place of delivery of and payment for such Notes , whether the Notes provide
for a Survivor's Option (as such term is defined in the Prospectus), whether the
Notes are redeemable or repayable and on what terms and conditions, and any
other relevant terms. In connection with the resale of the Notes purchased,
without the consent of the Company, the Agents are not authorized to appoint
subagents or to engage the service of any other broker or dealer, nor may any
Agent reallow any portion of the discount paid to it.
VI.
(a) The Company represents and warrants to the Agents as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (including any purchase by the Purchasing Agent as principal,
pursuant to a Terms Agreement or otherwise), as of each Settlement Date, and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the Commission any document incorporated
by reference into the Prospectus (other than any Current Report on Form 8-K
11
relating exclusively to the issuance of debt securities under the Registration
Statement) (each of the times referenced above being referred to herein as a
"Representation Date") as follows:
(i) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective, complied, and as of the
applicable Representation Date complies, in all material respects
with the requirements of the 1933 Act, the Trust Indenture Act, the
1934 Act and the applicable Rules and Regulations. The Registration
Statement, at the time the Registration Statement became effective
and on the date of the signing of this Agreement, did not, and as of
the applicable Representation Date does not, contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at the time the Registration
Statement became effective did not, and as of the applicable
Representation Date does not, contain an untrue statement of a
material fact or omit 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; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished in writing to the Company by any of the Agents expressly
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. After a post-effective amendment to the
Registration Statement is filed and has become effective under the
1933 Act, the representations and warranties contained in this
subsection shall refer to the Registration Statement as so amended.
On or prior to the date hereof, the Prospectus relating to the Notes
has been filed, pursuant to Rule 424(b) under the 1933 Act.
(ii) 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 1934 Act and the Rules and
Regulations 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
requirements of the 1934 Act and the Rules and Regulations and will
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(iii) The Company is in compliance as of the date hereof with all
provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act
Relating to Disclosure of Doing Business with Cuba, and the rules
and regulations applicable thereunder.
12
(b) Any certificate signed by any director or officer of the Company
and delivered to the Purchasing Agent or to counsel for the Purchasing Agent in
connection with an offering of Notes or the sale of Notes to the Purchasing
Agent as principal shall be deemed a representation and warranty by the Company
to the Agents as to the matters covered thereby on the date of such certificate
and at each Representation Date subsequent thereto.
(c) All representations, warranties, covenants and agreements of the
Company contained in this Agreement or in certificates of officers of the
Company submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Agent or any
controlling person of any Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
VII.
The Company covenants and agrees with the Agents that:
(a) Each acceptance by the Company of an offer for the purchase of
Notes and each delivery of Notes, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement are
true and correct at the time of such acceptance or sale, as the case may be, and
an undertaking that such representations and warranties will be true and correct
at the time of delivery to such Agent or Agents or to the purchaser or its
agent, as the case may be, of the Note or Notes relating to such acceptance or
sale, as the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate, as applicable,
to the Registration Statement and Prospectus as amended and supplemented to each
such time).
(b) Each time that there is filed with the Commission any Quarterly
Report on Form 10-Q or Annual Report on Form 10-K incorporated by reference into
the Prospectus, and otherwise only (i) as may be required in connection with a
sale pursuant to Section IV(a) or (ii) at such times as may be reasonably
requested by the Agents in the event of a material change in circumstances in
respect of the Company, the Company shall furnish or cause to be furnished to
the Agent(s) forthwith a certificate dated the date of filing with the
Commission of such document, the date requested by the Agents or the date of
such sale, as the case may be, in form reasonably satisfactory to the Agent(s)
to the effect that the statements contained in the certificate referred to in
Section II(d) hereof which were last furnished to the Agents are true and
correct at the time of such filing, as though made at and as of such time
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate substantially similar to the certificate
referred to in Section II(d) hereof, modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
(c) Each time that there is filed with the Commission any Quarterly
Report on Form 10-Q or Annual Report on Form 10-K incorporated by reference into
the Prospectus, and otherwise only (i) as may be required in connection with a
sale pursuant to Section IV(a) or (ii) at such times as may be reasonably
requested by the Agents in the event of a material change in circumstances in
respect of the Company, the Company shall furnish or cause to be furnished
13
forthwith, and in any case promptly upon request, to the Agent(s) and to counsel
to the Agents the written opinion of counsel to the Company referred to in
Section II(b), or other counsel reasonably satisfactory to the Agent(s), dated
the date of filing with the Commission of such document, the date requested by
the Agent(s) or the date of such sale, as the case may be, in form and substance
reasonably satisfactory to the Agent(s), including such reductions or
limitations as shall be reasonably satisfactory to the Agent(s), but modified,
as necessary, to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such opinion or, in lieu of
such opinion, counsel last furnishing such opinion to the Agents shall furnish
the Agent(s) with a letter substantially to the effect that the Agent(s) may
rely on such last opinion to the same extent as though it were dated the date of
such letter authorizing reliance (except that statements in such last opinion
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter authorizing
reliance).
(d) Each time that there is filed with the Commission any Quarterly
Report on Form 10-Q or Annual Report on Form 10-K incorporated by reference into
the Prospectus, and otherwise only (i) as may be required in connection with a
sale pursuant to Section IV(a) or (ii) at such times as may be reasonably
requested by the Agents in the event of a material change in circumstances in
respect of the Company, the Company shall cause their independent public
accountants to furnish such Agents a letter, dated the date of the filing of
such document with the Commission, the date of such request or the date of such
sale, as the case may be in form reasonably satisfactory to the Agent(s),
substantially in the form of the letter referred to in Section II(e) hereof but
modified to relate to the Registration Statement and Prospectus as amended and
supplemented to the date of such letter, with such changes as may be necessary
to reflect changes in the financial statements and other information derived
from the accounting records of the Company.
VIII.
(a) The Company agrees to indemnify, defend and hold harmless each
Agent and any person who controls such Agent within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act from and against any loss, expense,
liability or claim (including the reasonable cost of investigation) which,
jointly or severally, such Agent or any such other indemnified person may incur
under the 1933 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, 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 (i) 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
therein in conformity with information furnished in writing by such Agent to the
Company expressly for use in any of such documents or in any Statement of
Eligibility of the Trustee (Form T-1) under the Trust Indenture Act 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, and (ii) such indemnity with respect to
the Prospectus shall not inure to the benefit of any Agent (or any person
controlling such Agent) from whom the person asserting any such loss, claim,
damage or liability purchased the Notes which are the subject
14
thereof if the Agent failed to deliver a copy of the Prospectus as amended or
supplemented to such person in connection with the sale of such Notes excluding
documents incorporated therein by reference at or prior to the written
confirmation of the sale of such Notes to such person in any case where such
delivery is required by the 1933 Act and the untrue statement or omission of a
material fact contained in the Prospectus was corrected in the Prospectus as
amended or supplemented. The Company's agreement to indemnify each Agent or any
such other indemnified person as aforesaid is expressly conditioned upon it
being notified of the action in connection therewith brought against an Agent 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 an Agent 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 an Agent or to such other indemnified person otherwise than on account
of the indemnity agreement contained in this Section VIII except to the extent,
if any, that such failure materially prejudices the Company.
The Company shall assume the defense of any suit brought to enforce any
such liability or claim, including the employment of counsel satisfactory to
such Agent or such other controlling person and the payment of all expenses. The
Agent or such 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 such
Agent's 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 such Agent or such controlling person and the Company and such Agent or
such other controlling 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 behalf of such Agent
or such other controlling 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 such Agent and such other indemnified persons, which firm (and
local counsel, if any) shall be designated in writing by the Agent. 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 each Agent 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) Each Agent severally agrees to indemnify, defend and hold harmless
the Company, its directors and any person who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 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
15
statement of a material fact contained in the Registration Statement, the
Prospectus or any amendment or supplement thereto which is in reliance on and in
conformity with information furnished in writing by an Agent to the Company
expressly for use with reference to such Agent, 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. Each Agent's agreement to
indemnify the Company and any other indemnified person as aforesaid is expressly
conditioned upon such Agent 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 an Agent
shall not relieve such Agent from any liability which it may have to the Company
or any other indemnified person otherwise than on account of the indemnity
agreement contained in this Section VIII except to the extent, if any, that such
failure materially prejudices such Agent.
Each Agent 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 such Agent or (ii) the named parties
to any suit (including any impleaded parties) include the Company or such other
indemnified person and such Agent, 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 the Agent, in which case the Agent 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 such Agent 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 other indemnified person, which firm (and local counsel, if
any) shall be designated in writing by the Company. An Agent shall not be liable
for any settlement of any such action effected without such Agent's 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 the applicable Agents 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
16
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 the applicable Agents 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 fault of the Company on the one hand and the Agents 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 the Agents 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,
expenses 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.
The Company and the Agents agree that it would not be just and
equitable if contribution pursuant to this Agreement were determined by pro rata
allocation (even if the Agents 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, no Agent shall 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 such Agent exceeds the amount of the damages which such Agent has 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 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Each Agent's 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 such
Agent pursuant to this Agreement bears to the total amount of such Notes
distributed to the public through all of the Agents pursuant to this Agreement,
and not joint.
IX.
The Company may elect to suspend or terminate the offering of Notes
under this Agreement at any time; the Company also (as to any one or more of the
Agents) or any Agent (as to itself) may terminate the appointment and
arrangements described in this Agreement. Upon receipt of instructions from the
Company, the Purchasing Agent shall suspend or terminate the participation of
any Selected Dealer under the Master Selected Dealer Agreement. Such actions may
be taken, in the case of the Company, by giving prompt written notice of
suspension to all of the Agents and by giving not less than five days' written
notice of termination to the affected party and the other parties to this
Agreement, or in the case of an Agent, by giving not less than five days'
written notice of termination to the Company and except that, if at the time of
termination an offer for the purchase of Notes shall have been accepted by the
Company but the time of delivery to the purchaser or his agent of the Note or
Notes relating thereto shall not yet have occurred, the Company shall have the
obligations provided herein with respect to such Note or Notes. The Company
shall promptly notify the other parties in writing of any such termination.
17
The Purchasing Agent may, and, upon the request of an Agent with
respect to any Notes being purchased by such Agent shall, terminate any
agreement hereunder by the Purchasing Agent to purchase such Notes, immediately
upon notice to the Company at any time at or prior to the Settlement Date
relating thereto, (i) if there has been, 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 judgment of such Agent, 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 contemplated by the Registration
Statement and the Prospectus, or (ii) if there has occurred any outbreak or
escalation of hostilities, national emergency or other calamity or crisis or any
change in financial, political or economic conditions in the United States or
elsewhere, the effect of which on the financial markets of the United States or
the international financial markets is such as to make it, in the reasonable
judgment of the Purchasing Agent or such Agent or Agents, impracticable or
inadvisable to market the Notes or enforce contracts for the sale of the Notes,
or (iii) if trading in any securities of the Company has been suspended by the
Commission or a national securities exchange, or if trading generally on either
the New York Stock Exchange or the National Association of Securities Dealers
Automated Quotations System or any other exchange on which the Notes may be
listed has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by either
of said exchanges or by order of the Commission or any other governmental
authority, or if a general moratorium on commercial banking has been declared by
either federal or New York state authorities, or if a material disruption in
commercial banking or securities settlement or clearance services in the United
States has occurred, or (iv) if the rating assigned by any nationally recognized
securities rating agency to any debt securities of the Company as of the date of
such agreement shall have been lowered since that date or if any such rating
agency shall have publicly announced that it has under surveillance or review,
with possible negative implications, its ratings of any debt securities of the
Company since that date, or (v) if there shall have come to the attention of the
Purchasing Agent or such Agent or Agents any facts that would cause them to
believe that the Prospectus, at the time it was required to be delivered to a
purchaser of Notes, included an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at the time of such delivery, not
misleading. As used in this Section IX, the term "Prospectus" means the
Prospectus in the form first provided to the applicable Agent or Agents for use
in confirming sales of the related Notes.
Any Terms Agreement shall be subject to termination in the absolute
discretion of the Agents on the terms set forth or incorporated by reference
therein. The termination of this Agreement shall not require termination of any
agreement by the Purchasing Agent to purchase Notes as principal, and the
termination of any such agreement shall not require termination of this
Agreement.
If this Agreement is terminated, Section VIII and Section XII hereof
shall survive and shall remain in effect; provided that if at the time of
termination of this Agreement an offer to purchase Notes has been accepted by
the Company but the time of delivery to the Purchasing Agent of such Notes has
not occurred, the provisions of all of Section III, Section IV(b) and Section V
shall also survive until time of delivery.
18
In the event a proposed offering is not completed according to the
terms of this Agreement, an Agent will be reimbursed by the Company only for
out-of-pocket accountable expenses actually incurred.
X.
Except as otherwise specifically provided herein, all
statements, requests, notices and advices hereunder shall be in writing, or by
telephone if promptly confirmed in writing, and if to an Agent shall be
sufficient in all respects if delivered in person or sent by telex, facsimile
transmission (confirmed in writing), or registered mail to such Agent at its
address, telex or facsimile number set forth on Annex A hereto and if to the
Company shall be sufficient in all respects if delivered or sent by telex,
facsimile transmission (confirmed in writing) or registered mail to the Company
at the address specified below. All such notices shall be effective on receipt.
If to the Company:
CIT Group Inc.
1211 Avenue of the Americas
New York, New York 10036
Attention: Executive Vice President and
Chief Financial Officer
Telecopy: (212) 382-7196
With a copy to:
CIT Group Inc.
1 CIT Drive
Livingston, New Jersey 07039
Attention: Robert J. Ingato
Telecopy: (973) 740-5750
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section.
XI.
This Agreement shall be binding upon the Agents and the Company, and
inure solely to the benefit of the Agents and the Company and any other person
expressly entitled to indemnification hereunder and the respective personal
representatives, successors and assigns of each, and no other person shall
acquire or have any rights under or by virtue of this Agreement.
XII.
This Agreement shall be governed by and construed in accordance with
the substantive laws of the State of New York. Each party to this Agreement
irrevocably agrees that any legal action or proceeding against it arising out of
or in connection with this Agreement or for recognition or enforcement of any
judgment rendered against it in connection with this
19
Agreement may be brought in any federal or New York State court sitting in the
County of New York, New York, and, by execution and delivery of this Agreement,
such party hereby irrevocably accepts and submits to the non-exclusive
jurisdiction of each of the aforesaid courts in person, generally and
unconditionally with respect to any such action or proceeding for itself and in
respect of its property, assets and revenues. Each party hereby also irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of venue of any such action or proceeding
brought in any such court and any claim that any such action or proceeding has
been brought in an inconvenient forum.
XIII.
The Company will pay the following expenses incident to the
performance of its obligations under this Agreement: (i) the preparation and
filing of the Registration Statement; (ii) the preparation, issuance and
delivery of the Notes; (iii) the fees and disbursements of the Company's
auditors, of the Trustee and its counsel and of any paying or other agents
appointed by the Company; (iv) the printing and delivery to the Agents in
quantities as hereinabove stated of copies of the Registration Statement and the
Prospectus; (v) if the Company lists Notes on a securities exchange, the costs
and fees of such listing; (vi) the cost of providing CUSIP or other
identification numbers for the Notes, (vii) the fees and expenses, if any,
(including fees and disbursements of Wilmer, Cutler & Pickering, counsel for the
Agents, if applicable) incurred with respect to any filing with the National
Association of Securities Dealers, Inc.; (viii) all reasonable expenses
(including fees and disbursements of any counsel specifically engaged for Blue
Sky purposes) in connection with "Blue Sky" qualifications and (ix) any fees
charged by rating agencies for the rating of the Notes.
This Agreement may be executed by each of the parties hereto in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument. Facsimile signatures shall be deemed original
signatures.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
20
If the foregoing is in accordance with your understanding, please
sign and return to us a counterpart hereof, and upon acceptance hereof by you,
this letter and such acceptance hereof shall constitute a binding agreement
between the Company and you.
Very truly yours,
CIT GROUP INC.
By:
-----------------------
Name:
Title:
Confirmed and accepted
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By:
---------------------------
Name:
Title:
INCAPITAL LLC
By:
---------------------------
Name:
Title:
BMO NESBITT BURNS CORP.
By:
---------------------------
Name:
Title:
CHARLES SCHWAB & CO., INC.
By:
---------------------------
Name:
Title:
EDWARD D. JONES & CO., L.P.
By:
---------------------------
Name:
Title:
FIDELITY CAPITAL MARKETS,
a division of National Financial Services, LLC
By:
---------------------------
Name:
Title:
RBC DAIN RAUSCHER
By:
---------------------------
Name:
Title:
SALOMON SMITH BARNEY INC.
By:
---------------------------
Name:
Title:
UBS PAINEWEBBER INC.
By:
---------------------------
Name:
Title:
WACHOVIA SECURITIES, INC.
By:
---------------------------
Name:
Title:
ANNEX A
AGENT CONTACT INFORMATION
Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Attention: Rock Fu
Tel: (212) 847-6434
Fax: (212) 847-5184
Incapital LLC
One North LaSalle Street
Suite 3500
Chicago, Illinois 60602
Attention: Brian Walker
Tel: (312) 379-3750
Fax: (312) 379-3701
BMO Nesbitt Burns Corp.
3 Times Square, 29th Floor
New York, New York 10036
Attention: Norm Shaffer
Tel: (212) 702-1251
Fax: (212) 605-1683
With a copy to:
Harrisdirect
Harborside Financial Center
501 Plaza II
Jersey City, New Jersey 07311
Tel: (201) 308-3353
Charles Schwab & Co., Inc.
101 Montgomery Street
San Francisco, California 94104
Attention: Peter J. Campfield
Tel: (415) 667-5072
Fax: (415) 667-5087
Edward D. Jones & Co., L.P.
12555 Manchester Road
St. Louis, MO 63131-3729
Att: Karen Liebsch
Tel: (314) 515-5119
Fax: (314) 515-3502
Fidelity Capital Markets,
a division of National Financial Services, LLC
200 Seaport Blvd., Mail Zone: Z2H
Boston, Massachusetts 02210
Attention: Jamee Smith
Tel: (617) 563-0800
Fax: (617) 692-4933
RBC Dain Rauscher
One Liberty Plaza, 2nd Floor
New York, New York 10006
Attention: Liz Garvey
Tel: (212) 858-7167
Fax: (212) 428-3018
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Attention: Martha Bailey
Tel: (212) 816-5831
Fax: (212) 816-0949
UBS PaineWebber Inc.
800 Harbor Boulevard, 3rd Floor
Weehawken, New Jersey 07087
Attention: Corporate Debt Trading
Tel: (201) 352-7150
Fax: (201) 352-6900
With a copy to:
UBS PaineWebber Inc.
299 Park Avenue, 26th Floor
New York, New York 10171
Attention: Transaction Management Group
Tel: (212) 821-2632
Fax: (212) 821-5536
Wachovia Securities, Inc.
One Wachovia Center, NC0602
301 South College St.
Charlotte, NC 28288
Attention: Keith Mauney
Tel: (704) 383-7727
Fax: (704) 383-9165
EXHIBIT A
DEALER AGENT PROGRAM
The following Discounts are payable as a percentage of the non-discounted Price
to Public of each Note sold through the Purchasing Agent.
9 months to less than 23 months.................. 0.200%
23 months to less than 35 months.................. 0.400%
35 months to less than 47 months.................. 0.625%
47 months to less than 59 months.................. 0.750%
59 months to less than 71 months.................. 1.000%
71 months to less than 83 months.................. 1.100%
83 months to less than 95 months.................. 1.200%
95 months to less than 107 months.................. 1.300%
107 months to less than 119 months.................. 1.400%
119 months to less than 131 months.................. 1.500%
131 months to less than 143 months.................. 1.600%
143 months to less than 179 months.................. 1.750%
179 months to less than 239 months.................. 2.000%
239 months to less than 360 months.................. 2.500%
360 months or greater............................... 3.000%
A-1
EXHIBIT B
CIT Group Inc.
$2,000,000,000
INTERNOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
ADMINISTRATIVE PROCEDURES
InterNotes, due nine months or more from date of issue (the "Notes") may be
offered on a continuing basis by CIT Group Inc. (the "Company"). The Notes will
be offered by Incapital LLC (the "Purchasing Agent"), Banc of America Securities
LLC, BMO Nesbitt Burns Corp., Charles Schwab & Co., Inc., Edward D. Jones & Co.,
L.P., Fidelity Capital Markets, a division of National Financial Services, LLC,
RBC Dain Rauscher, Salomon Smith Barney Inc., UBS PaineWebber Inc. and Wachovia
Securities, Inc. (collectively, the "Agents") pursuant to a Selling Agent
Agreement among the Company and the Agents dated as of the date hereof (the
"Selling Agent Agreement") and one or more terms agreements substantially in the
form attached to the Selling Agent Agreement as Exhibit C (each a "Terms
Agreement"). The Notes are being resold by the Purchasing Agent (and by any
Agent that purchases them from the Purchasing Agent) (i) directly to customers
of the Agents or (ii) to selected broker-dealers (the "Selected Dealers") for
distribution to their customers pursuant to a Master Selected Dealer Agreement
(a "Dealers Agreement") attached to the Selling Agent Agreement as Exhibit E.
The Notes have been registered with the Securities and Exchange Commission (the
"Commission"). Bank One Trust Company, N.A. is the trustee (the "Trustee") under
the Indenture, dated as of August 26, 2002, between the Company and the Trustee
(the "Indenture"), covering, among other debt securities, the Notes. Pursuant to
the terms of the Indenture, Bank One Trust Company, N.A. also will serve as
authenticating agent, issuing agent and paying agent.
Unless otherwise agreed by the Agents and the Company, Notes will be purchased
by the Purchasing Agent as principal as set forth herein. Such purchases will be
made in accordance with terms agreed upon by the Purchasing Agent and the
Company (which terms, unless otherwise agreed, shall be agreed upon orally, with
written confirmation prepared by the Agents and mailed to the Company).
Each tranche of Notes will be issued in book-entry form only and represented by
one or more fully registered global notes without coupons (each, a "Global
Note") held by the Trustee, as agent for The Depository Trust Company ("DTC")
and recorded in the book-entry system maintained by DTC. Each Global Note will
have the annual interest rate, maturity and other terms set forth in the
relevant Pricing Supplement (as defined in the Selling Agent Agreement). Owners
of beneficial interests in a Global Note will be entitled to physical delivery
of Notes issued in certificated form equal in principal amount to their
respective beneficial interests only upon certain limited circumstances
described in the Indenture.
Administrative procedures and specific terms of the offering are explained
below. Administrative and record-keeping responsibilities will be handled for
the Company by its Treasury Department. The Company will advise the Agents and
the Trustee in writing of those persons handling
B-1
administrative responsibilities with whom the Agents and the Trustee are to
communicate regarding offers to purchase Notes and the details of their
delivery.
Notes will be issued in accordance with the administrative procedures set forth
herein. To the extent the procedures set forth below conflict with or omit
certain of the provisions of the Notes, the Indenture, the Selling Agent
Agreement or information set forth in the Prospectus (as defined in the Selling
Agent Agreement) and the Pricing Supplement (together referred to herein as the
"Prospectus"), the relevant provisions of the Notes, the Indenture, the Selling
Agent Agreement and the information set forth in Prospectus shall control.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Selling Agent Agreement, the Prospectus in the
form most recently filed with the Commission pursuant to Rule 424 of the
Securities Act of 1933 Act (the "1933 Act"), or in the Indenture.
Administrative Procedures for Notes
In connection with the qualification of Notes for eligibility in the book-entry
system maintained by DTC, the Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
obligations under a Letter of Representations from the Company and the Trustee
to DTC, dated November 1, 2002 and a Medium-Term Note Certificate Agreement
between the Trustee and DTC (the "Certificate Agreement") dated May 26, 1989 and
its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS"). The procedures set forth below may be modified in
compliance with DTC's then-applicable procedures and upon agreement by the
Company, the Trustee and the Purchasing Agent.
Maturities: Each Note will mature on a date (the
"Maturity Date") not less than nine
months after the date of delivery by the
Company of such Note. Notes will mature
on any date selected by the initial
purchaser and agreed to by the Company.
"Maturity" when used with respect to any
Note means the date on which the
outstanding principal amount of such
Note becomes due and payable in full in
accordance with its terms, whether at
its Maturity Date or by declaration of
acceleration, call for redemption,
repayment or otherwise.
Issuance: All Notes having the same terms will be
represented initially by a single Global
Note. Each Global Note will be dated and
issued as of the date of its
authentication by the Trustee.
Each Global Note will bear an original
issue date (the "Original Issue Date").
The Original Issue Date shall remain the
same for all Notes subsequently issued
upon transfer, exchange or substitution
of an original Note regardless of their
dates of authentication.
Identification The Company has received from the CUSIP
Numbers: Service Bureau (the
B-2
CUSIP Service Bureau") of Standard &
Poor's Corporation ("Standard & Poor's")
one series of CUSIP numbers consisting
of approximately 900 CUSIP numbers for
future assignment to Global Notes. The
Company will provide the Purchasing
Agent, DTC and the Trustee with a list
of such CUSIP numbers. On behalf of the
Company, the Purchasing Agent will
assign CUSIP numbers as described below
under Settlement Procedure "B". DTC will
notify the CUSIP Service Bureau
periodically of the CUSIP numbers that
the Company has assigned to Global
Notes. The Company will reserve
additional CUSIP numbers when necessary
for assignment to Global Notes and will
provide the Purchasing Agent, the
Trustee and DTC with the list of
additional CUSIP numbers so obtained.
Registration: Unless otherwise specified by DTC,
Global Notes will be issued only in
fully registered form without coupons.
Each Global Note will be registered in
the name of Cede & Co., as nominee for
DTC, on the Note Register maintained
under the Indenture by the Trustee. The
beneficial owner of a Note (or one or
more indirect participants in DTC
designated by such owner) will designate
one or more participants in DTC (with
respect to such Note, the
"Participants") to act as agent or
agents for such owner in connection with
the book-entry system maintained by DTC,
and DTC will record in book-entry form,
in accordance with instructions provided
by such Participants, a credit balance
with respect to such beneficial owner of
such Note in the account of such
Participants. The ownership interest of
such beneficial owner in such 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 DTC.
Transfers: Transfers of interests in a Global Note
will be accomplished by book entries
made by DTC and, in turn, by
Participants (and in certain cases, one
or more indirect participants in DTC)
acting on behalf of beneficial
transferors and transferees of such
interests.
Exchanges: The Trustee, at the Company's request,
may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of
consolidation specifying (a) the CUSIP
numbers of two or more Global Notes
outstanding on such date that represent
Notes having the same terms (except that
Issue Dates need not be the same) and
for which interest, if any, has been
paid to the same date and which
otherwise constitute Notes of the same
series and tenor under the Indenture,
(b) a date, occurring at least 30 days
B-3
after such written notice is delivered
and at least 30 days before the next
Interest Payment Date, if any, for the
related Notes, on which such Global
Notes shall be exchanged for a single
replacement Global Note; and (c) a new
CUSIP number, obtained from the Company,
to be assigned to such replacement
Global Note. Upon receipt of such a
notice, DTC will send to its
participants (including the Issuing
Agent) and the Trustee a written
reorganization notice to the effect that
such exchange will occur on such date.
Prior to the specified exchange date,
the Trustee will deliver to the CUSIP
Service Bureau written notice setting
forth such exchange date and the 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, the Trustee 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
cancelled and not immediately
reassigned. Notwithstanding the
foregoing, if the Global Notes to be
exchanged exceed $500,000,000 in
aggregate principal or face amount, one
replacement Global Note will be
authenticated and issued to represent
each $500,000,000 of principal or face
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).
Denominations: Unless otherwise agreed by the Company,
Notes will be issued in denominations of
$1,000 or more (in multiples of $1,000).
Global Notes will be denominated in
principal or face amounts not in excess
of $500,000,000 or any other limit set
by the DTC (the "Permitted Amount"). If
one or more Notes having an aggregate
principal or face amount in excess of
the Permitted Amount would, but for the
preceding sentence, be represented by a
single Global Note, then one Global Note
will be issued to represent each
Permitted Amount principal or face
amount of such Note or Notes and an
additional Global Note will be Issued to
represent any remaining principal amount
of such Note or Notes. In such case,
each of the Global Notes representing
such Note or Notes shall be assigned the
same CUSIP number.
Issue Price: Unless otherwise specified in an applicable
Pricing Supplement, each Note will be issued
at the percentage of principal amount specified
in the Prospectus relating to such Note.
Interest: General. Each Note will bear interest at
a fixed rate. Interest on
B-4
each Note will accrue from the Issue
Date of such Note for the first interest
period and from the most recent Interest
Payment Date to which interest has been
paid for all subsequent interest
periods. Except as set forth hereafter,
each payment of interest on a Note will
include interest accrued to, but
excluding, as the case may be, the
Interest Payment Date or the date of
Maturity (other than a Maturity Date of
a 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). Any payment of principal,
premium or interest required to be made
on a day that is not a Business Day (as
defined below) may be made on the next
succeeding Business Day and no interest
shall accrue as a result of any such
delayed payment.
Each pending deposit message described
under Settlement Procedure "C" below
will be routed to Standard & Poor's
Corporation, which will use the message
to include certain information regarding
the related Notes in the appropriate
daily bond report published by Standard
& Poor's Corporation.
Each Note will bear interest from, and
including, its Issue Date at the rate
per annum set forth thereon and in the
applicable Pricing Supplement until the
principal amount thereof is paid, or
made available for payment, in full.
Unless otherwise specified in the
applicable Pricing Supplement, interest
on each Note will be payable either
monthly, quarterly, semi-annually or
annually on each Interest Payment Date
and at Maturity (or on the date of
redemption or repayment if a Note is
repurchased by the Company prior to
maturity pursuant to mandatory or
optional redemption or repayment
provisions or the Survivor's Option).
Interest will be payable to the person
in whose name a Note is registered at
the close of business on the Regular
Record Date next preceding each Interest
Payment Date; provided, however,
interest payable at Maturity, on a date
of redemption or repayment or in
connection with the exercise of the
Survivor's Option will be payable to the
person to whom principal shall be
payable.
Unless otherwise specified in the
applicable Pricing Supplement, any
interest on the Notes will be computed
on the basis of a 360-day year of twelve
30-day months. The interest rates the
Company will agree to pay on
newly-issued Notes are subject to change
without notice by the Company from time
to time, but no such change will affect
any Notes already issued or as to which
an offer to purchase has been accepted
by the Company.
B-5
Unless otherwise specified in the
applicable Pricing Supplement, the
Interest Payment Dates for a Note that
provides for monthly interest payments
shall be the fifteenth day of each
calendar month, commencing in the
calendar month that next succeeds the
month in which the Note is issued; in
the case of a Note that provides for
quarterly interest payments, the
Interest Payment Dates shall be the
fifteenth day of each third month,
commencing in the third succeeding
calendar month following the month in
which the Note is issued; in the case of
a Note that provides for semi-annual
interest payments, the Interest Payment
dates shall be the fifteenth day of each
sixth month, commencing in the sixth
succeeding calendar month following the
month in which the Note is issued; in
the case of a Note that provides for
annual interest payments, the Interest
Payment Date shall be the fifteenth day
of every twelfth month, commencing in
the twelfth succeeding calendar month
following the month in which the Note is
issued. Unless otherwise specified in
the applicable Pricing Supplement, the
Regular Record Date with respect to any
Interest Payment Date shall be the first
day of the calendar month in which such
Interest Payment Date occurred, except
that the Regular Record Date with
respect to the final Interest Payment
Date shall be the final Interest Payment
Date.
Each payment of interest on a Note shall
include accrued interest from and
including the Issue Date or from and
including the last day in respect of
which interest has been paid (or duly
provided for), as the case may be, to,
but excluding, the Interest Payment Date
or Maturity Date, as the case may be.
Calculation of Interest: Interest on the Notes (including
interest for partial periods) will be
calculated on the basis of a 360-day
year of twelve 30-day months.
Business Day: "Business Day" means, unless otherwise
specified in the applicable Pricing
Supplement, any day other than a Saturday
or Sunday, that is neither a legal holiday
nor a day on which commercial banks are
authorized or required by law, regulation
or executive order to close in The City of
New York.
Payments of Principal
and Interest: Payments of Principal and Interest.
Promptly after each Regular Record Date,
the Trustee will deliver to the Company
and DTC a written notice specifying by
CUSIP number the amount of interest, if
any, to be paid on each Global Note on
the following
B-6
Interest Payment Date (other than an
Interest Payment Date coinciding with a
Maturity Date) and the total of such
amounts. DTC will confirm the amount
payable on each Global Note on such
Interest Payment Date by reference to
the daily bond reports published by
Standard & Poor's. On such Interest
Payment Date, the Company will pay to
the Trustee, and the Trustee in turn
will pay to DTC, such total amount of
interest due (other than on the Maturity
Date), at the times and in the manner
set forth below under "Manner of
Payment".
Payments on the Maturity Date. On or
about the first Business Day of each
month, the Trustee will deliver to the
Company and DTC a written list of
principal, premium, if any, and interest
to be paid on each Global Note
representing Notes maturing or subject
to redemption (pursuant to a sinking
fund or otherwise) or repayment
("Maturity") in the following month. The
Trustee, the Company and DTC will
confirm the amounts of such principal,
premium, if any, and interest payments
with respect to each Global Note on or
about the fifth Business Day preceding
the Maturity Date of such Global Note.
On the Maturity Date, the Company will
pay to the Trustee, and the Trustee in
turn will pay to DTC, the principal
amount of such Global Note, together
with interest and premium, if any, due
on such Maturity Date, at the times and
in the manner set forth below under
"Manner of Payment". Promptly after
payment to DTC of the principal and
interest due on the Maturity Date of
such Global Note and all other Notes
represented by such Global Note, the
Trustee will cancel and destroy such
Global Note in accordance with the
Indenture and so advise the Company.
Manner of Payment. The total amount of
any principal, premium, if any, and
interest due on Global Notes on any
Interest Payment Date or at Maturity
shall be paid by the Company to the
Trustee in immediately available funds
on such date. The Company will make such
payment on such Global Notes to an
account specified by the Trustee. Prior
to 10:00 a.m., New York City time, on
the date of Maturity or as soon as
possible thereafter, the Trustee will
make payment to DTC in accordance with
existing arrangements between DTC and
the Trustee, in funds available for
immediate use by DTC, each payment of
interest, principal and premium, if any,
due on a Global Note on such date. On
each Interest Payment Date (other than
on the Maturity Date) the Trustee will
pay DTC such interest payments in
same-day funds in accordance with
existing arrangements between the
Trustee and DTC. Thereafter, on each
B-7
such date, DTC will pay, in accordance
with its SDFS operating procedures then
in effect, such amounts in funds
available for immediate use to the
respective Participants with payments in
amounts proportionate to their
respective holdings in principal amount
of beneficial interest in such Global
Note as are recorded in the book-entry
system maintained by DTC. Neither the
Company nor the Trustee shall have any
direct responsibility or liability for
the payment by DTC of the principal of,
or premium, if any, or interest on, the
Notes to such Participants.
Withholding Taxes. The amount of any
taxes required under applicable law to
be withheld from any interest payment on
a Note will be determined and withheld
by the Participant, indirect participant
in DTC or other person responsible for
forwarding payments and materials
directly to the beneficial owner of such
Note.
Purchase of Notes by
the Purchasing Agent: Unless otherwise agreed by the Agents
and the Company, Notes offered from time
to time by the Company will be purchased
by the Purchasing Agent as principal for
subsequent resale to the Agents and
Selected Dealers party to the Master
Selected Dealer Agreement in the form
attached as Exhibit E to the Selling
Agent Agreement.
Preparation of Pricing Supplement: If any offer to purchase a Note is
accepted by or on behalf of the Company,
the Purchasing Agent will use its
reasonable best efforts to send by email
or telecopy a draft Pricing Supplement
(substantially in the form attached to
the Selling Agent Agreement as Exhibit
D) to the Company reflecting the terms
of such Note by 2:00 p.m. (New York City
time) on the applicable Trade Day. The
Company shall use its reasonable best
efforts to deliver any comments to such
Pricing Supplement by email or telecopy
to the Purchasing Agent and the Trustee
by 5:00 p.m. (New York City Time) on the
applicable Trade Day. The Company will
file such Pricing Supplement with the
Commission in accordance with the
applicable paragraph of Rule 424(b)
under the 1933 Act. The Purchasing Agent
shall use its reasonable best efforts to
send such Pricing Supplement and the
Prospectus by email or telecopy or
overnight express (for delivery by the
close of business on the applicable
Trade Day, but in no event later than
11:00 a.m. New York City time on the
Business Day immediately following the
applicable Trade Day and no earlier than
the earlier of (i) 5:00 p.m. (New York
City time) on the applicable Trade Date
or (ii) such time after which
B-8
the Purchasing Agent shall have
incorporated the comments of the
Company, if any, to the Pricing
Supplement, to each Agent (or other
Selected Dealer) which made or presented
the offer to purchase the applicable
Note and the Trustee at the following
applicable address:
if to Banc of America Securities LLC, to:
9 West 57th Street
New York, New York 10019
Attention: Rock Fu
Telephone: (212) 847-6434
Telecopier: (212) 847-5184
Email: rfu@bofasecurities.com
if to Incapital LLC, to:
One North LaSalle Street
Suite 3500
Chicago, Illinois 60646-7488
Attention: Brian Walker
Telephone: (312) 379-3700
Telecopier: (312) 379-3701
Email: brian.walker@incapital.com
if to BMO Nesbitt Burns Corp., to:
3 Times Square, 29th Floor
New York, New York 10036
Attention: Norm Shaffer
Telephone: (212) 702-1251
Telecopier: (212) 605-1683
Email: norm.shaffer@bmonb.com
With a copy to:
Harrisdirect
Harborside Financial Center
501 Plaza II
Jersey City, New Jesey 07311
Tel: (201) 308-3353
Email: Paul.Renken@theharris.com
B-9
if to Charles Schwab & Co., Inc., to:
101 Montgomery Street
San Francisco, California 94104
Attention: Peter J. Campfield
Telephone: (415) 667-5072
Telecopier: (415) 667-5087
Email: peter.campfield@schwab.com
if to Edward D. Jones & Co., L.P., to:
12555 Manchester Road
St. Louis, MO 63131-3729
Att: Karen Liebsch
Telephone: (314) 515-5119
Telecopier: (314) 515-3502
Email: karen.liebsch@edwardjones.com
if to Fidelity Capital Markets,
a division of National Financial
Services, LLC, to:
200 Seaport Blvd., Mail Zone: Z2H
Boston, Massachusetts 02210
Attention: Jamee Smith
Telephone: (617) 563-0800
Telecopier: (617) 692-4933
Email: jamee.smith@fmr.com
if to RBC Dain Rauscher, to:
One Liberty Plaza, 2nd Floor
New York, New York 10006
Attention: Liz Garvey
Telephone: (212) 858-7167
Telecopier : (212) 428-3018
Email: liz.garvey@rbccm.com
if to Salomon Smith Barney Inc., to:
388 Greenwich Street
New York, New York 10013
Attention: Martha Bailey
Telephone: (212) 816-5831
Telecopier: (212) 816-0949
Email: martha.bailey@ssmb.com
B-10
if to UBS PaineWebber Inc., to:
800 Harbor Boulevard, 3rd Floor
Weehawken, New Jersey 07087
Attention: Corporate Debt Trading
Telephone: (201) 352-7150
Telecopier: (201) 352-6900
With a copy to:
UBS PaineWebber Inc.
299 Park Avenue, 26th Floor
New York, New York 10171
Attention: Transaction Management Group
Telephone: (212) 821-2632
Telecopier: (212) 821-5536
Email: krockey@ubspw.com
if to Wachovia Securities, Inc., to:
One Wachovia Center, NC0602
301 South College St.
Charlotte, NC 28288
Attention: Keith Mauney
Telephone: (704) 383-7727
Telecopier: (704) 383-9165
Email: keith.mauney@wachovia.com
and if to the Trustee, to:
Bank One Trust Company
One Bank One Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attention: Corporate Trust and Agency
Services
For record keeping purposes, one copy of
each Pricing Supplement, as so filed,
shall also be mailed or telecopied to:
Wilmer, Cutler & Pickering
2445 M St., NW
Washington, DC 20037
Attention: Erika L. Robinson
Telephone: (202) 663-6000
Telecopier (212) 663-6363
B-11
and to:
Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Attention: Lily Chang/ Zachary Frost
Telephone: (212) 847-6466
Telecopier: (212) 933-2625
Each such Agent (or Selected Dealer), in
turn, pursuant to the terms of the
Selling Agent Agreement and the Master
Selected Dealer Agreement, will cause to
be timely delivered a copy of the
Prospectus and the applicable Pricing
Supplement to each purchaser of Notes
from such Agent or Selected Dealer.
Outdated Pricing Supplements and the
Prospectuses to which they are attached
(other than those retained for files)
will be destroyed by those in possession
thereof.
Delivery of Confirmation
and Prospectus to Purchaser
by Presenting Agent: The Agents will deliver a Prospectus and
Pricing Supplement herein described with
respect to each Note sold by it.
For each offer to purchase a Note
accepted by or on behalf of the Company,
the Purchasing Agent will confirm in
writing with each Agent or Selected
Dealer the terms of such Note, the
amount being purchased by such Agent or
Selected Dealer and other applicable
details described above and delivery and
payment instructions, with a copy to the
Company.
In addition, the Purchasing Agent, other
Agent or Selected Dealer, as the case
may be, will deliver to investors
purchasing the Notes the Prospectus
(including the Pricing Supplement) in
relation to such Notes prior to or
simultaneously with delivery of the
confirmation of sale or delivery of the
Note.
B-12
Settlement: The receipt of immediately available
funds by the Company in payment for
Notes and the authentication and
issuance of the Global Note representing
such Notes shall constitute "Settlement"
with respect to such Note. All orders
accepted by the Company will be settled
within three Business Days pursuant to
the timetable for Settlement set forth
below, unless the Company and the
purchaser agree to Settlement on another
specified date, and shall be specified
upon acceptance of such offer; provided,
however, in all cases the Company will
notify the Trustee on the date issuance
instructions are given.
Settlement Procedures: Settlement Procedures with regard to
each Note sold by an Agent shall be as
follows:
A. After the acceptance of an offer by
the Company with respect to a Note,
the Purchasing Agent will
communicate the following details of
the terms of such offer (the "Note
Sale Information") to the Company in
writing or by facsimile
transmission, email or other written
means acceptable to the Company:
1. Principal amount of the purchase;
2. Interest Rate per annum;
3. Interest Payment Frequency;
4. Settlement Date;
5. Maturity Date;
6. Price to Public;
7. Purchasing Agent's commission
determined pursuant to Section
IV(a) of the Selling Agent
Agreement;
8. Net proceeds to the Company;
9. Trade Date;
10. If a Note is redeemable by the
Company or repayable by the
Noteholder, such of the following
as are applicable:
B-13
11. (i) The date on and after
which such Note may be
redeemed/repaid (the
"Redemption/Repayment
Commencement Date"),
(ii) Initial redemption/
repayment price (% of
par), and
(iii) Amount (% of par) that the
initial redemption/repayment
price shall decline (but
not below par) on each
anniversary of the
Redemption/Repayment
Commencement Date;
12. Whether the Note has a
Survivor's Option;
13. DTC Participant Number of the
institution through which the
customer will hold the beneficial
interest in the Global Note; and
14. Such other terms as are
necessary to complete the
applicable form of Note.
B. The Company will confirm the
previously assigned CUSIP number to
the Global Note representing such
Note and then advise the Trustee and
the Purchasing Agent by telephone
(confirmed in writing at any time on
the same date) or by telecopier or
other form of electronic
transmission of the information
received in accordance with
Settlement Procedure "A" above, the
assigned CUSIP number and the name
of the Purchasing Agent. Each such
communication by the Company will be
deemed to constitute a
representation and warranty by the
Company to the Trustee and the
Agents that (i) such Note is then,
and at the time of issuance and sale
thereof will be, duly authorized for
issuance and sale by the Company;
(ii) such Note, and the Global Note
representing such Note, will conform
with the terms of the Indenture; and
(iii) upon authentication and
delivery of the Global Note
representing such Note, the
aggregate principal amount of all
Notes issued under the Indenture
will not exceed the aggregate
principal amount of Notes authorized
for issuance at such time by the
Company.
B-14
C. The Trustee will communicate to DTC
and the Purchasing Agent through
DTC's Participant Terminal System, a
pending deposit message specifying
the following Settlement
information:
1. The information received in
accordance with Settlement
Procedure "A".
2. The numbers of the participant
accounts maintained by DTC on
behalf of the Trustee and the
Purchasing Agent.
3. The initial Interest Payment Date
for such Note, number of days by
which such date succeeds the
related DTC record date (which
term means the Regular Record
Date), and if then calculated,
the amount of interest payable on
such Initial Interest Payment
Date (which amount shall have
been confirmed by the Trustee).
4. The CUSIP number of the Global
Note representing such Notes.
5. The frequency of interest.
6. Whether such Global Note
represents any other Notes issued
or to be issued (to the extent
then known).
D. DTC will credit such Note to the
participant account of the Trustee
maintained by DTC.
E. The Trustee will complete and
deliver a Global Note representing
such Note in a form that has been
approved by the Company, the Agents
and the Trustee.
F. The Trustee will authenticate the
Global Note representing such Note
and maintain possession of such
Global Note.
B-15
G. The Trustee will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC to (i) debit such
Note to the Trustee's participant
account and credit such Note to the
participant account of the
Purchasing Agent maintained by DTC
and (ii) debit the settlement
account of the Purchasing Agent and
credit the settlement account of the
Trustee maintained by DTC, in an
amount equal to the price of such
Note less the Purchasing Agent's
commission. The entry of such a
deliver order shall be deemed to
constitute a representation and
warranty by the Trustee to DTC that
(a) the Global Note representing
such Note has been issued and
authenticated and (b) the Trustee is
holding such Global Note pursuant to
the Certificate Agreement.
H. The Purchasing Agent will enter an
SDFS deliver order through DTC's
Participant Terminal System
instructing DTC to (i) debit such
Note to the Purchasing Agent's
participant account and credit such
Note to the participant accounts of
the Participants to whom such Note
is to be credited maintained by DTC
and (ii) debit the settlement
accounts of such Participants and
credit the settlement account of the
Purchasing Agent maintained by DTC,
in an amount equal to the price of
the Note less the agreed upon
commission so credited to their
accounts.
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. The Trustee will credit to an
account specified by the Company
funds available for immediate use in
an amount equal to the amount
credited to the Trustee's DTC
participant account in accordance
with Settlement Procedure "G".
K. The Trustee will send a copy of the
Global Note representing such Note
by first-class mail to the Company.
B-16
L. Each Agent and Selected Dealer will
confirm the purchase of each Note to
the purchaser thereof either by
transmitting to the Participant to
whose account such Note has been
credited a confirmation order
through DTC's Participant Terminal
System or by mailing a written
confirmation to such purchaser. In
all cases the Prospectus as most
recently amended or supplemented
must accompany or precede such
confirmation.
M. On a day that is a Business Day, the
Trustee will send, by facsimile or
electronic transmission, to the
Company a statement setting forth
the principal amount of Notes
outstanding as of that date under
the Indenture and setting forth the
CUSIP number(s) assigned to, and a
brief description of, any orders
which the Company has advised the
Trustee but which have not yet been
settled.
Settlement Procedures
Timetable: In the event of a purchase of Notes by
the Purchasing Agent, as principal,
appropriate Settlement details, if
different from those set forth below
will be set forth in the applicable
Terms Agreement to be entered into
between the Purchasing Agent and the
Company pursuant to the Selling Agent
Agreement.
Settlement Procedures "A" through "M"
shall be completed as soon as possible
but not later than the respective times
(New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 2:00 p.m. on the Trade Day.
B 12:00 p.m. on the Business Day following the Trade
Day.
C 2:00 p.m. on the Business Day before the Settlement
Date.
D 10:00 a.m. on the Settlement Date.
E 12:00 p.m. on the Settlement Date.
F 12:30 a.m. on the Settlement Date.
G-I 2:00 p.m. on the Settlement Date.
J-L 2:30 p.m. on the Settlement Date.
M Weekly or at the request of the Company.
B-17
The Prospectus as most recently amended
or supplemented must accompany or
precede any written confirmation given
to the customer (Settlement Procedure
"L"). Settlement Procedure "I" is
subject to extension in accordance with
any extension Fedwire closing deadlines
and in the other events specified in the
SDFS operating procedures in effect on
the Settlement Date.
If Settlement of a Note is rescheduled
or cancelled, the Trustee will deliver
to DTC, through DTC's Participant
Terminal System, a cancellation message
to such effect by no later than 2:00
p.m., New York City time, on the
Business Day immediately preceding the
scheduled Settlement Date.
B-18
Failure to Settle: If the Trustee fails to enter an SDFS
deliver order with respect to a Note
pursuant to Settlement Procedure "G",
the Trustee may deliver to DTC, through
DTC's Participant Terminal System, as
soon as practicable a withdrawal message
instructing DTC to debit such Note to
the participant account of the Trustee
maintained at DTC. DTC will process the
withdrawal message, provided that such
participant account contains Notes
having the same terms and having a
principal amount that is at least equal
to the principal amount of such Note to
be debited. If withdrawal messages are
processed with respect to all the Notes
issued or to be issued represented by a
Global Note, the Trustee will cancel
such Global Note in accordance with the
Indenture, make appropriate entries in
its records and so advise the Company.
The CUSIP number assigned to such Global
Note shall, in accordance with CUSIP
Service Bureau procedures, be cancelled
and not immediately reassigned. If
withdrawal messages are processed with
respect to one or more, but not all, of
the Notes represented by a Global Note,
the Trustee will exchange such Global
Note for two Global Notes, one of which
shall represent such Notes and shall be
cancelled immediately after issuance,
and the other of which shall represent
the remaining 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 Note is not
timely paid to the Participants with
respect to such Note by the beneficial
purchaser thereof (or a person,
including an indirect participant in
DTC, acting on behalf of such
purchaser), such Participants and, in
turn, the related Agent may enter SDFS
deliver orders through DTC's participant
Terminal System reversing the orders
entered pursuant to Settlement
Procedures "G" and "H", respectively.
Thereafter, the Trustee 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
default by the Agent in the performance
of its obligations hereunder or under
the Selling Agent Agreement, the Company
will reimburse the Agent on an equitable
basis for its reasonable out-of-pocket
accountable expenses actually incurred
and loss of the use of funds during the
period when they were credited to the
account of the Company.
B-19
Notwithstanding the foregoing, upon any
failure to settle with respect to a
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 Notes that
were to have been represented by a
Global Note, the Trustee will provide,
in accordance with Settlement Procedures
"D" and "E", for the authentication and
issuance of a Global Note representing
the other Notes to have been represented
by such Global Note and will make
appropriate entries in its records.
Trustee Not to Risk Funds: Nothing herein shall be deemed to require
the Trustee to risk or expend its own funds
in connection with any payment to the Company,
or the Agents or the purchasers, it being
understood by all parties that payments
made by the Trustee to either the
Company or the Agents shall be made only
to the extent that funds are provided to
the Trustee for such purpose.
Advertising Costs: The Company shall have the sole right to
approve the form and substance of any
advertising an Agent may initiate
in connection with such Agent's
solicitation to purchase the Notes. The
expense of such advertising will be
solely the responsibility of such Agent,
unless otherwise agreed to by the
Company.
B-20
EXHIBIT C
TERMS AGREEMENT
_________, 20__
CIT Group Inc.
1211 Avenue of the Americas
New York, New York 10036
Attention: [Treasury Dept.]
Subject in all respects to the terms and conditions of the Selling Agent
Agreement dated November 1, 2002, among CIT Group Inc. and Banc of America
Securities LLC, Incapital LLC, BMO Nesbitt Burns Corp., Charles Schwab & Co.,
Inc., Edward D. Jones & Co., L.P., Fidelity Capital Markets, a division of
National Financial Services, LLC, RBC Dain Rauscher, Salomon Smith Barney Inc.,
UBS PaineWebber Inc. and Wachovia Securities, Inc., the undersigned agrees to
purchase the following aggregate principal amount of InterNotes:
$________________
The terms of such Notes shall be as follows:
CUSIP Number: __________
Interest Rate: _____%
Maturity Date: __________
Price to Public: __________
Agent's Concession: ___%
Net Proceeds to Issuer: $_________
Settlement Date, Time and Place: __________
Survivor's Option: __________
Interest Payment Frequency: __________
Optional Redemption/Repayment, if any: __________
Initial Redemption/Repayment Date[s]: __________
Redemption/Repayment Price: Initially ___% of Principal Amount and declining by
___% of the Principal Amount on each anniversary of the Initial
Redemption/Repayment Date until the Redemption/Repayment Price is 100% of
the Principal Amount.
[Any other terms and conditions agreed to by the Purchasing Agent and the
Company]
INCAPITAL LLC
By:____________________________
Title:_________________________
ACCEPTED
CIT GROUP INC.
By:__________________________________
Title:_______________________________
C-1
Exhibit D
Form of Pricing Supplement
Pricing Supplement Dated: _____________________________ Rule 424(b)(3)
(To Prospectus Supplement Dated [ ], 2002 and File No. 333-[ ]
Prospectus Dated [ ], 2002)
Pricing Supplement No. ________________________________
U.S. $
CIT GROUP INC.
INTERNOTES'r'
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
_________________________________________________________________
Trade Date:____________________________________________________
Issue Date:____________________________________________________
Joint Lead Managers:___________________________________________
Agents:________________________________________________________
_________________________________________________________________
- -------------------------------------------------------------------------------------------
CUSIP AGGREGATE PRICE CONCESSION NET INTEREST RATE
PRINCIPAL TO PROCEEDS
AMOUNT PUBLIC TO ISSUER
- -------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
INTEREST MATURITY SURVIVOR'S REDEMPTION OR REDEMPTION/
PAYMENT DATE OPTION REPAYMENT REPAYMENT
FREQUENCY YES/NO TERMS
- --------------------------------------------------------------------------------------------
Other Terms:____________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
D-1
Master Selected Dealer Agreement
<<FirstName>>>>
<<Company>>>>
<<Address1>>>>
<<Address2>>>>
<<City>>>>, <<State>>>> <<Postal>>>>
Dear Selected Dealer:
In connection with public offerings of securities after the
date hereof for which we are acting as manager of an underwriting syndicate or
are otherwise responsible for the distribution of securities to the public by
means of an offering of securities for sale to selected dealers, you may be
offered the right as such a selected dealer to purchase as principal a portion
of such securities. This will confirm our mutual agreement as to the general
terms and conditions applicable to your participation in any such selected
dealer group organized by us as follows.
1. Applicability of this Agreement. The terms and conditions
of this Agreement shall be applicable to any public offering of securities
("Securities"), pursuant to a registration statement filed under the
Securities Act of 1933 (the "1933 Act"), or exempt from registration
thereunder (other than a public offering of Securities effected wholly
outside the United States of America), wherein Incapital LLC clearing
through BNY Clearing Services, LLC (the "Account") (acting for its own
Account or for the account of any underwriting or similar group or
syndicate) is responsible for managing or otherwise implementing the sale
of the Securities to selected dealers ("Selected Dealers") and has
expressly informed you that such terms and conditions shall be applicable.
Any such offering of Securities to you as a Selected Dealer is hereinafter
called an "Offering". In the case of any Offering where we are acting for
the account of any underwriting or similar group or syndicate
("Underwriters"), the terms and conditions of this Agreement shall be for
the benefit of, and binding upon, such Underwriters, including, in the case
of any Offering where we are acting with others as representatives of
Underwriters, such other representatives.
2. Conditions of Offering; Acceptance and Purchases. Any
Offering: (i) will be subject to delivery of the Securities and their
acceptance by us and any other Underwriters; (ii) may be subject to the
approval of all legal matters by counsel and the satisfaction of other
conditions, and (iii) may be made on the basis of reservation of Securities
or an allotment against subscription. We will advise you by electronic
mail, facsimile or other form of written communication ("Written
Communication", which term, in the case of any Offering described in
Section 3(a) or 3(b) hereof, may include a prospectus or offering circular)
of the particular method and supplementary terms and conditions (including,
without limitation, the information as to prices and offering date referred
to in Section 3(c) hereof) of any Offering in which you are invited to
participate. To the extent
E-1
such supplementary terms and conditions are inconsistent with any provision
herein, such terms and conditions shall supersede any such provision.
Unless otherwise indicated in any such Written Communication, acceptances
and other communications by you with respect to an Offering should be sent
to Incapital LLC, One North LaSalle Street, Suite 3500, Chicago, IL 60602,
(Fax: (312) 379-3701). We reserve the right to reject any acceptance in
whole or in part. Unless notified otherwise by us, Securities purchased by
you shall be paid for on such date as we shall determine, on one day's
prior notice to you, by certified or official bank check, in an amount
equal to the Public Offering Prices (as hereinafter defined) or, if we
shall so advise you, at such Public Offering Price less the Concession (as
hereinafter defined), payable in New York Clearing House funds to the order
of BNY Clearing Services, LLC clearing for the account of Incapital LLC,
against delivery of the Securities. If Securities are purchased and paid
for at such Public Offering Price, such Concession will be paid after the
termination of the provisions of Section 3(c) hereof with respect to such
Securities. Notwithstanding the foregoing, unless notified otherwise by us,
payment for and delivery of Securities purchased by you shall be made
through the facilities of The Depository Trust Company, if you are a
member, unless you have otherwise notified us prior to the date specified
in a Written Communication to you from us or, if you are not a member,
settlement may be made through a correspondent who is a member pursuant to
instructions which you will send to us prior to such specified date.
3. Representations, Warranties and Agreements.
(a) Registered Offerings. In the case of any Offering of
Securities that are registered under the 1933 Act ("Registered Offering"), we
shall provide you with such number of copies of each preliminary prospectus and
of the final prospectus relating thereto as you may reasonably request for the
purposes contemplated by the 1933 Act and the Securities Exchange Act of 1934
(the "1934 Act") and the applicable rules and regulations of the Securities and
Exchange Commission thereunder. You represent and warrant that you are familiar
with Rule 15c2-8 under the 1934 Act relating to the distribution of preliminary
and final prospectuses and agree that you will comply therewith. You agree to
make a record of your distribution of each preliminary prospectus and, when
furnished with copies of any revised preliminary prospectus, you will, upon our
request, promptly forward copies thereof to each person to whom you have
theretofore distributed a preliminary prospectus. You agree that in purchasing
Securities in a Registered Offering you will rely upon no statement whatsoever,
written or oral, other than the statements in the final prospectus delivered to
you by us. You will not be authorized by the issuer or other seller of
Securities offered pursuant to a prospectus or by any Underwriter to give any
information or to make any representation not contained in the prospectus in
connection with the sale of such Securities.
(b) Offerings Pursuant to Offering Circular. In the case of
any Offering of Securities, other than a Registered Offering, which is made
pursuant to an offering circular or other document comparable to a prospectus in
a Registered Offering, we shall provide you with such number of copies of each
preliminary offering circular and of the final offering circular relating
thereto as you may reasonably request. You agree that you will comply with the
E-2
applicable Federal and state laws, and the applicable rules and regulations of
any regulatory body promulgated thereunder, governing the use and distribution
of offering circulars by brokers or dealers. You agree that in purchasing
Securities pursuant to an offering circular you will rely upon no statements
whatsoever, written or oral, other than the statements in the final offering
circular delivered to you by us. You will not be authorized by the issuer or
other seller of Securities offered pursuant to an offering circular or by any
Underwriter to give any information or to make any representation not contained
in the offering circular in connection with the sale of such Securities.
(c) Offer and Sale to the Public. With respect to any Offering
of Securities, we will inform you by a Written Communication of the public
offering price, the selling concession, the reallowance (if any) to dealers and
the time when you may commence selling Securities to the public. After such
public offering has commenced, we may change the public offering price, the
selling concession and the reallowance to dealers. The offering price, selling
concession and reallowance (if any) to dealers at any time in effect with
respect to an Offering are hereinafter referred to, respectively, as the "Public
Offering Price", the "Concession" and the "Reallowance". With respect to each
Offering of Securities, until the provisions of this Section 3(c) shall be
terminated pursuant to Section 4 hereof, you agree to offer Securities to the
public at no more than the Public Offering Price. If so notified by us, you may
sell Securities to the public at a lesser negotiated price than the Public
Offering Price, but in an amount not to exceed the "Concession". If a
Reallowance is in effect, a reallowance from the Public Offering Price not in
excess of such Reallowance may be allowed as consideration for services rendered
in distribution to dealers who are actually engaged in the investment banking or
securities business, who execute the written agreement prescribed by Rule 2740
of the Conduct Rules of the National Association of Securities Dealers, Inc.
(the "NASD") and who are either members in good standing of the NASD or foreign
banks, dealers or institutions not eligible for membership in the NASD who
represent to you that they will promptly reoffer such Securities at the Public
Offering Price and will abide by the conditions with respect to foreign banks,
dealers and institutions set forth in Section 3(e) hereof.
(d) Over-allotment; Stabilization; Unsold Allotments. We may,
with respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and
to stabilize or maintain the market price of the Securities. You agree that,
upon our request at any time and from time to time prior to the termination of
the provisions of Section 3(c) hereof with respect to any Offering, you will
report to us the amount of Securities purchased by you pursuant to such Offering
which then remain unsold by you and will, upon our request at any such time,
sell to us for our account or the account of one or more Underwriters such
amount of such unsold Securities as we may designate at the Public Offering
Price less an amount to be determined by us not in excess of the Concession. If,
prior to the later of (i) the termination of the provisions of Section 3(c)
hereof with respect to any Offering or (ii) the covering by us of any short
position created by us in connection with such Offering for our account or the
account of one or more Underwriters, we purchase or contract to purchase for our
account or the account of one or more Underwriters in the open market or
otherwise any Securities purchased by you under this Agreement as part of
E-3
such Offering, you agree to pay us on demand an amount equal to the Concession
with respect to such Securities (unless you shall have purchased such Securities
pursuant to Section 2 hereof at the Public Offering Price in which case we shall
not be obligated to pay such Concession to you pursuant to Section 2) plus
transfer taxes and broker's commissions or dealer's mark-up, if any, paid in
connection with such purchase or contract to purchase.
(e) NASD. You represent and warrant that you are actually
engaged in the investment banking or securities business and either a member in
good standing of the NASD or, if you are not such a member, you are a foreign
bank, dealer or institution not eligible for membership in the NASD which agrees
to make no sales within the United States, its territories or its possessions or
to persons who are citizens thereof or residents therein, and in making other
sales to comply with the NASD's interpretation with respect to free riding and
withholding. You further represent, by your participation in an Offering, that
you have provided to us all documents and other information required to be filed
with respect to you, any related person or any person associated with you or any
such related person pursuant to the supplementary requirements of the NASD's
interpretation with respect to review of corporate financing as such
requirements relate to such Offering.
You agree that, in connection with any purchase or sale of the
Securities wherein a Concession, discount or other allowance is received or
granted, (1) you will comply with the provisions of Rule 2740 of the NASD's
Conduct Rules and (2) if you are a non-NASD member broker or dealer in a foreign
country, you will also comply (a), as though you were an NASD member, with the
provisions of IM-2110-1 and Rules 2730, 2740 and 2750 of the NASD's Conduct
Rules and (b) with Rule 2420 thereof as that Rule applies to a non-NASD member
broker or dealer in a foreign country.
You further agree that, in connection with any purchase of
securities from us that is not otherwise covered by the terms of this Agreement
(whether we are acting as manager, as a member of an underwriting syndicate or a
selling group or otherwise), if a Concession or other allowance is granted to
you, clauses (1) and (2) of the preceding paragraph will be applicable.
(f) Relationship among Underwriters and Selected Dealers. We
may buy Securities from or sell Securities to any Underwriter or Selected Dealer
and, without consent, the Underwriters (if any) and the Selected Dealers may
purchase Securities from and sell Securities to each other at the Public
Offering Price less all or any part of the Concession. Unless otherwise
specified in a separate agreement between you and us, this agreement does not
authorize you to act as agent for: (i) us; (ii) any Underwriter; (iii) the
issuer; or (iv) other seller of any Securities in offering Securities to the
public or otherwise. Neither we nor any Underwriter shall be under any
obligation to you except for obligations assumed hereby or in any Written
Communication from us in connection with any Offering. Nothing contained herein
or in any Written Communication from us shall constitute the Selected Dealers an
association or partners with us or any Underwriter or with one another. If the
Selected Dealers, among themselves or with the Underwriters, should be deemed to
constitute a partnership for Federal income tax purposes, then you elect to be
excluded from the application of Subchapter K, Chapter 1, Subtitle A of the
Internal Revenue Code of 1986 and agree not to take any position
E-4
inconsistent with that election. You authorize us, in our discretion, to execute
and file on your behalf such evidence of that election as may be required by the
Internal Revenue Service. In connection with any Offering, you shall be liable
for your proportionate amount of any tax, claim, demand or liability that may be
asserted against you alone or against one or more Selected Dealers participating
in such Offering, or against us or the Underwriters, based upon the claim that
the Selected Dealers, or any of them, constitute an association, an
unincorporated business or other entity, including, in each case, your
proportionate amount of any expense incurred in defending against any such tax,
claim, demand or liability.
(g) Blue Sky Laws. Upon application to us, we shall inform you
as to any advice we have received from counsel concerning the jurisdictions in
which Securities have been qualified for sale or are exempt under the securities
or blue sky laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction.
(h) Compliance with Law. You agree that in selling Securities
pursuant to any Offering (which agreement shall also be for the benefit of the
issuer or other seller of such Securities) you will comply with all applicable
laws, rules and regulations, including the applicable provisions of the 1933 Act
and the 1934 Act, the applicable rules and regulations of the Securities and
Exchange Commission thereunder, the applicable rules and regulations of the
NASD, the applicable rules and regulations of any securities exchange having
jurisdiction over the Offering and the applicable laws, rules and regulations
specified in Section 3(b) hereof.
4. Termination, Supplements and Amendments. This Agreement
shall continue in full force and effect until terminated by a written instrument
executed by each of the parties hereto. This Agreement may be supplemented or
amended by us by written notice thereof to you, and any such supplement or
amendment to this Agreement shall be effective with respect to any Offering to
which this Agreement applies after the date of such supplement or amendment.
Each reference to "this Agreement" herein shall, as appropriate, be to this
Agreement as so amended and supplemented. The terms and conditions set forth in
Section 3(c) hereof with regard to any Offering will terminate at the close of
business on the 30th day after the commencement of the public offering of the
Securities to which such Offering relates, but in our discretion may be extended
by us for a further period not exceeding 30 days and in our discretion, whether
or not extended, may be terminated at any earlier time.
5. Successors and Assigns. This Agreement shall be binding on,
and inure to the benefit of, the parties hereto and other persons specified in
Section 1 hereof, and the respective successors and assigns of each of them.
6. Governing Law. This Agreement and the terms and conditions
set forth herein with respect to any Offering together with such supplementary
terms and conditions with respect to such Offering as may be contained in any
Written Communication from us to you in connection therewith shall be governed
by, and construed in accordance with, the laws of the State of New York.
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Please confirm by signing and returning to us the enclosed
copy of this Agreement that your subscription to, or your acceptance of any
reservation of, any Securities pursuant to an Offering shall constitute (i)
acceptance of and agreement to the terms and conditions of this Agreement (as
supplemented and amended pursuant to Section 4 hereof) together with and subject
to any supplementary terms and conditions contained in any Written Communication
from us in connection with such Offering, all of which shall constitute a
binding agreement between you and us, individually or as representative of any
Underwriters, (ii) confirmation that your representations and warranties set
forth in Section 3 hereof are true and correct at that time, (iii) confirmation
that your agreements set forth in Sections 2 and 3 hereof have been and will be
fully performed by you to the extent and at the times required thereby and (iv)
in the case of any Offering described in Section 3(a) and 3(b) hereof,
acknowledgment that you will request and have received from us sufficient copies
of the final prospectus or offering circular, as the case may be, with respect
to such Offering in order to comply with your undertakings in Section 3(a) or
3(b) hereof.
Very truly yours,
INCAPITAL LLC
By: ____________________________
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CONFIRMED: _______________________, 20___
<<Company>>>>
By: ______________________________________
Name: ____________________________________
(Print name)
Title: ___________________________________
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