Exhibit 99.1
CABOT INDUSTRIAL PROPERTIES, L.P.
Medium-Term Notes
Due Nine Months or More From Date of Issue
DISTRIBUTION AGREEMENT
September 7, 2000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Xxxxxxx, Xxxxx & Co.
Incorporated 00 Xxxxx Xxxxxx
World Financial Center New York, New York, 00000
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-1315 X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
BNY Capital Markets, Inc. New York, New York 00000
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Chase Securities Inc.
[ADDRESS]
[ADDRESS]
First Union Securities, Inc.
[ADDRESS]
[ADDRESS]
Dear Sirs:
Cabot Industrial Properties, L.P., a Delaware limited partnership (the
"Company") and Cabot Industrial Trust, a Maryland real estate investment trust
("CIT") and sole general partner of the Company, confirm their agreement with
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, BNY Capital Markets, Inc.,
Chase Securities Inc., First Union Securities, Inc., Xxxxxxx, Xxxxx & Co. and
X.X. Xxxxxx Securities Inc. and (each, an "Agent", and collectively, the
"Agents") with respect to the issue and sale by the Company of its Medium-Term
Notes Due Nine Months or More From Date of Issue (the "Notes"). The Notes are to
be issued pursuant to an Indenture, dated as of April 30, 1999, as supplemented
and amended by a Supplemental
Indenture No. 1, dated as of May 4, 1999 and a Supplemental Indenture No. 2,
dated as of September 7, 2000 (collectively, and as amended or modified from
time to time the "Indenture"), between the Company, as issuer, and The Bank of
New York, as trustee (the "Trustee"). As of the date hereof, the Company has
authorized the issuance and sale of up to U.S. $200,000,000 aggregate initial
offering price of Notes (or its equivalent, based upon the exchange rate on the
applicable trade date in such foreign or composite currencies as the Company
shall designate at the time of issuance) to or through the Agents pursuant to
the terms of this Agreement. It is understood, however, that the Company may
from time to time authorize the issuance of additional Notes and that such
additional Notes may be sold to or through the Agents pursuant to the terms of
this Agreement, all as though the issuance of such Notes were authorized as of
the date hereof.
This Agreement provides both for the sale of Notes by the Company to one or
more Agents as principal for resale to investors and other purchasers and for
the sale of Notes by the Company directly to investors (as may from time to time
be agreed to by the Company and the applicable Agent), in which case the
applicable Agent will act as an agent of the Company in soliciting offers for
the purchase of Notes.
The Company and CIT have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (the file number of
which is 333-71585) for the registration of debt securities, including the
Notes, under the Securities Act of 1933, as amended (the "1933 Act"), and the
offering thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
and the Company and CIT have filed such post-effective amendments thereto as may
be required prior to any acceptance by the Company of an offer for the purchase
of the Notes. Such registration statement (as so amended, if applicable) has
been declared effective by the Commission and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
Such registration statement (as so amended, if applicable) is referred to herein
as the "Registration Statement"; and the final prospectus and all applicable
amendments or supplements thereto (including the final prospectus supplement and
any pricing supplement relating to the offering of Notes), in the form first
furnished to the applicable Agent(s), are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to any acceptance by the Company of an
offer for the purchase of Notes; provided, further, that if the Company and/or
CIT files a registration statement with the Commission pursuant to Rule 462(b)
of the 1933 Act Regulations relating to the above-referenced registration
statement (the "Rule 462(b) Registration Statement"), then, after such filing,
all references to the "Registration Statement" shall also be deemed to include
the Rule 462(b) Registration Statement. A "preliminary prospectus" shall be
deemed to refer to any prospectus used before the registration statement became
effective and any prospectus furnished by the Company after the registration
statement became effective and before any acceptance by the Company of an offer
for the purchase of Notes which omitted information to be included upon pricing
in a form of prospectus filed with the Commission pursuant to Rule 424(b) of the
1933 Act Regulations. For purposes of this Agreement, all references to the
Registration Statement, Prospectus or preliminary prospectus or to any amendment
or supplement thereto shall be deemed
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to include any copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which is "disclosed", "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to include all such financial statements
and schedules and other information which is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall be deemed to
include the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be.
1. Appointment as Agent.
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(a) Appointment. Subject to the terms and conditions stated herein
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and subject to the reservation by the Company of the right to sell Notes
directly on its own behalf, the Company hereby appoints each of the Agents as an
agent of the Company for the purpose of soliciting or receiving offers to
purchase the Notes from the Company by others. The Company may, from time to
time in its sole discretion, appoint additional Agents under this Agreement on
the same terms and conditions as provided herein or remove existing Agents from
the program. The Company may from time to time offer Notes for sale otherwise
than through an Agent; provided, however, that so long as this Agreement shall
be in effect the Company shall not solicit offers to purchase Notes through any
agent without amending this Agreement to appoint such agent an additional Agent
hereunder on the same terms and conditions as provided herein for the Agents and
without giving the Agents prior notice of such appointment. The Company may
accept offers to purchase Notes through an agent other than an Agent, provided
that (i) the Company shall not have solicited such offers, (ii) the Company and
such agent shall have executed an agreement with respect to such purchases
having terms and conditions (including, without limitation, commission rates)
with respect to such purchases substantially the same as the terms and
conditions that would apply to such purchases under this Agreement if such agent
was an Agent (which may be accomplished by incorporating by reference in such
agreement the terms and conditions of this Agreement) and (iii) the Company
shall provide the Agents with a copy of such agreement promptly following the
execution thereof.
(b) Sale of Notes. The Company shall not sell or approve the
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solicitation of offers for the purchase of Notes in excess of the amount which
shall be authorized by the Company from time to time or in excess of the
aggregate public offering price of debt securities registered pursuant to the
Registration Statement remaining unsold. The Agents shall have no responsibility
for maintaining records with respect to the aggregate public offering price of
Notes sold, or of otherwise monitoring the availability of Notes for sale, under
the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation
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to purchase Notes from the Company as principal. However, absent an agreement
between an Agent and the Company that such Agent shall be acting solely as an
agent for the Company, such Agent shall be deemed to be acting as principal in
connection with any offering of Notes by the Company
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through such Agent. Accordingly, the Agents, individually or in a syndicate, may
agree from time to time to purchase Notes from the Company as principal for
resale to investors and other purchasers determined by such Agents. Any purchase
of Notes from the Company by an Agent as principal shall be made in accordance
with Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon between an Agent and the
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Company, such Agent, acting solely as an agent for the Company and not as
principal, will solicit offers for the purchase of Notes. Such Agent will
communicate to the Company, orally, each offer for the purchase of Notes
solicited by it on an agency basis other than those offers rejected by such
Agent. Such Agent shall have the right, in its discretion reasonably exercised,
to reject any offer for the purchase of Notes, in whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained herein. The
Company may accept or reject any offer for the purchase of Notes, in whole or in
part. Such Agent shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer for the purchase of Notes
has been solicited by it on an agency basis and accepted by the Company. Such
Agent shall not have any liability to the Company in the event that any such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer has been solicited by
such Agent on an agency basis and accepted by the Company, the Company shall (i)
hold such Agent harmless against any loss, claim or damage arising from or as a
result of such default by the Company and (ii) pay to such Agent any commission
to which it would otherwise be entitled absent such default.
(e) Reliance. The Company, CIT and the Agents agree that any Notes
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purchased from the Company by one or more Agents as principal shall be
purchased, and any Notes the placement of which an Agent arranges as an agent of
the Company shall be placed by such Agent, in reliance on the representations,
warranties, covenants and agreements of the Company and CIT contained herein and
on the terms and conditions and in the manner provided herein.
2. Representations and Warranties.
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(a) The Company and CIT each jointly and severally represents and
warrants to each Agent as of the date hereof, as of the date of each acceptance
by the Company of an offer for the purchase of Notes (whether to such Agent as
principal or through such Agent as agent), as of the date of each delivery of
Notes (whether to such Agent as principal or through such Agent as agent) (the
date of each such delivery to such Agent as principal is referred to herein as a
"Settlement Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented (each of the times referenced above
is referred to herein as a "Representation Date"), as follows:
(i) Due Organization, Good Standing and Due Qualification of
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CIT. CIT has been duly organized and is validly existing as a real estate
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investment trust in good standing under the laws of Maryland with the trust
power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into this Agreement and
consummate the transactions contemplated by this Agreement;
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CIT is duly qualified as a foreign trust to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not
reasonably be expected to result in a material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of CIT and its subsidiaries considered as one enterprise (a "Material
Adverse Effect"); all of the issued and outstanding shares of beneficial
interest of CIT have been duly authorized and are validly issued, fully paid and
non-assessable; none of the outstanding shares of beneficial interest of CIT
were issued in violation of preemptive or other similar rights of any
securityholder of CIT; and with respect to all tax periods since CIT's first
taxable year ended December 31, 1998, CIT has met the requirements for
qualification as a real estate investment trust under Sections 856 through 860
of the Internal Revenue Code of 1986, as amended, and the Company's present
contemplated operations, assets and income continue to meet such requirements.
(ii) Due Formation, Good Standing and Due Qualification of the
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Company. The Company has been duly formed and is validly existing as a limited
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partnership in good standing under the laws of Delaware with the partnership
power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into this Agreement and
consummate the transactions contemplated by this Agreement; the Company is duly
qualified or registered as a limited partnership and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not reasonably be expected to
result in a Material Adverse Effect; CIT is the sole general partner of the
Company and is the holder of a general partnership interest in the Company
constituting as of the date hereof approximately 93% of all general and limited
partnership interests; the Second Amended and Restated Agreement of Limited
Partnership, dated February 4, 1998, as amended, substantially in the form filed
as an exhibit to the Registration Statement has been duly and validly
authorized, is in full force and effect and is a valid and binding agreement of
the parties thereto, enforceable in accordance with its terms; and the Company
is properly treated as a partnership for federal income tax purposes and not as
a "publicly traded partnership".
(iii) Due Organization, Good Standing and Due Qualification of
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Significant Subsidiaries. Each significant subsidiary (as such term is defined
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in Rule 1-02 of Regulation S-X promulgated under the 1933 Act), if any, (each, a
"Significant Subsidiary") (a) has been duly organized and is validly existing
under the laws of its jurisdiction of organization, with power and authority
(corporate, partnership or otherwise) to own, lease and operate its properties
and conduct its business as described in the Prospectus and (b) has been duly
qualified to do business and is in good standing under the laws of the
jurisdiction of its incorporation and each other jurisdiction in which it owns,
leases or operates properties, or conducts other business, so as to require such
qualification, except where the failure to so qualify or be in good standing
would not reasonably be expected to result in a Material Adverse Effect; except
as stated in the Prospectus, all of
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the issued and outstanding shares of capital stock or other partnership or
membership interests of each Significant Subsidiary has been duly authorized and
is validly issued, fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; and none of the
outstanding shares of capital stock or other partnership or membership interests
of any Significant Subsidiary was issued in violation of preemptive or other
similar rights of any securityholder of such Significant Subsidiary.
(iv) Registration Statement and Prospectus. The Company and CIT meet
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the requirements for use of Form S-3 under the 1933 Act; the Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement (including any Rule 462(b) Registration Statement)
has been issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company and/or CIT, are
contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with; the Indenture has been duly
qualified under the 1939 Act; at the respective times that the Registration
Statement, any Rule 462(b) Registration Statement and any post-effective
amendment thereto (including the filing of the Company's most recent Annual
Report on Form 10-K with the Commission (the "Annual Report on Form 10-K"))
became effective and at each Representation Date, the Registration Statement
(including any Rule 462(b) Registration Statement) and any amendments thereto
complied and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act Regulations")
and did not 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; each preliminary prospectus and prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act Regulations;
each preliminary prospectus and the Prospectus delivered to the applicable
Agent(s) for use in connection with the offering of Notes are identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T; and at the date hereof,
at the date of the Prospectus and at each Representation Date, neither the
Prospectus nor any amendment or supplement thereto included or will include an
untrue statement of a material fact or omitted or will 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 the Prospectus
made in reliance upon and in conformity with information furnished to the
Company and/or CIT in writing by the Agents expressly for use in the
Registration Statement or the Prospectus.
(v) Incorporated Documents. The documents incorporated or deemed to
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be incorporated by reference in the Prospectus, at the time they were or
hereafter are
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filed with the Commission, complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the date hereof, at
the date of the Prospectus and at each Representation Date, did not and will not
include 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.
(vi) Independent Accountants. The accountants who certified the
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financial statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(vii) Financial Statements. The consolidated financial statements of
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the Company and CIT included in the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as those financial
statements, schedules and notes of any other entity included in the Registration
Statement and the Prospectus, present fairly the consolidated financial position
of CIT, the Company and their respective subsidiaries, or such other entity, as
the case may be, at the dates indicated and the consolidated statement of
operations, stockholders'/partners' equity and cash flows of CIT, the Company
and their respective subsidiaries, or such other entity, as the case may be, for
the periods specified; such financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved; the supporting schedules, if
any, included in the Registration Statement and the Prospectus present fairly in
accordance with GAAP the information required to be stated therein; the selected
financial data and the summary financial information included in the
Registration Statement and the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement and the Prospectus;
and any pro forma consolidated financial statements of CIT, the Company and
their respective subsidiaries and the related notes thereto included in the
Registration Statement and the Prospectus present fairly the information shown
therein, have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to
therein.
(viii) No Material Changes. Since the respective dates as of which
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information is given or incorporated by reference in the Registration Statement
and the Prospectus, except as otherwise stated therein, (1) there has been no
event or occurrence that would reasonably be expected to result in a Material
Adverse Effect and (2) there have been no transactions entered into by CIT, the
Company or any of their respective subsidiaries, other than those in the
ordinary course of business, which are material with respect to CIT, the Company
and their respective subsidiaries considered as one enterprise.
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(ix) Authorization, etc. of this Agreement, the Indenture and the
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Notes. This Agreement has been duly authorized, executed and delivered by the
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Company and CIT; the Indenture has been duly authorized, executed and delivered
by the Company and CIT and is a valid and legally binding agreement of the
Company and CIT, enforceable against the Company and CIT in accordance with its
terms, except as enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, (2) general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law), (3) requirements that a claim with respect to any debt securities issued
under the Indenture that are payable in a foreign or composite currency (or a
foreign or composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (4) governmental authority to limit, delay or prohibit the
making of payments outside the United States; the Notes have been duly
authorized by the Company, and by CIT as the general partner of the Company, for
offer, sale, issuance and delivery pursuant to this Agreement and, when issued,
authenticated and delivered by the Trustee in the manner provided for in the
Indenture and delivered against payment of the consideration therefor, will
constitute valid and legally binding obligations of the Company entitled to the
benefit of the Indenture, enforceable against the Company in accordance with
their terms, except as enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, (2) general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law), (3) requirements that a claim with respect to any Notes payable in a
foreign or composite currency (or a foreign or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate or exchange
prevailing on a date determined pursuant to applicable law or (4) governmental
authority to limit, delay or prohibit the making of payments outside the United
States; the Notes will be substantially in a form previously certified to the
Agents and contemplated by the Indenture.
(x) Descriptions of the Indenture and the Notes. The Indenture and
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the Notes conform and will conform in all material respects to the statements
relating thereto contained in the Prospectus and are substantially in the form
filed or to be filed or incorporated by reference or to be incorporated by
reference, as the case may be, as an exhibit to the Registration Statement.
Immediately after any sale of Notes by the Company hereunder, the aggregate
amount of Notes which shall have been issued and sold by the Company hereunder
and of any debt securities of the Company (other than such Notes) that shall
have been issued and sold pursuant to the Registration Statement will not exceed
the amount of debt securities registered under the Registration Statement.
(xi) Accuracy of Exhibits. There are no contracts or documents which
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are required to be described in the Registration Statement, the Prospectus or
the documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
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(xii) Absence of Defaults and Conflicts. Neither CIT, the Company
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nor any of their respective subsidiaries is in violation of the provisions of
its partnership agreement, declaration of trust, certificate of incorporation,
by-laws or other charter documents or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which CIT, the Company or any of their
respective subsidiaries is a party or by which it or any of them may be bound or
to which any of the property or assets of CIT, the Company or any of their
respective subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such violations or defaults that would not reasonably be expected to
result in a Material Adverse Effect; and the execution, delivery and performance
of this Agreement, the Indenture, the Notes and any other agreement or
instrument entered into or issued or to be entered into or issued by the Company
and/or CIT in connection with the transactions contemplated by this Agreement,
the consummation of the transactions contemplated in the Prospectus (including
the issuance and sale of the Notes and the use of proceeds therefrom as
described in the Prospectus) and the compliance by the Company and CIT with
their respective obligations hereunder and under the Indenture, the Notes and
such other agreements or instruments have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the giving of
notice or the passage of time or both, conflict with or constitute a breach of,
or default or event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by CIT, the Company or any of their respective subsidiaries
(a "Repayment Event") under, or result in the creation or imposition of any
lien, charge or encumbrance upon any assets, properties or operations of CIT,
the Company or any of their respective subsidiaries pursuant to, any Agreements
and Instruments, except for such conflicts, breaches, defaults, events,
conditions, liens, charges or encumbrances that would not reasonably be expected
to result in a Material Adverse Effect nor will such action result in any
violation of the provisions of the partnership agreement, declaration of trust,
certificate of incorporation, by-laws or other charter documents of CIT, the
Company or any of their respective subsidiaries or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over CIT, the
Company or any of their respective subsidiaries or any of their assets,
properties or operations except for such violations of law, statutes, rules,
regulations, judgments, orders, writs or decrees that would not reasonably be
expected to result in a Material Adverse Effect.
(xiii) Absence of Labor Disputes. No labor dispute with the employees
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of CIT, the Company or any of their respective subsidiaries exists or, to the
knowledge of CIT or the Company, is imminent, and neither CIT nor the Company is
aware of any existing or imminent labor disturbance by the employees of any of
its or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to result in a
Material Adverse Effect.
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(xiv) Absence of Proceedings. There is no action, suit, proceeding,
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inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or to the knowledge of the Company
and/or CIT threatened, against or affecting CIT, the Company or any of their
respective subsidiaries which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which may
reasonably be expected to result in a Material Adverse Effect, or which may
reasonably be expected to materially and adversely affect the performance by CIT
and the Company of their respective obligations under this Agreement, the
Indenture and the Notes or the consummation of the transactions contemplated by
this Agreement; and the aggregate of all pending legal or governmental
proceedings to which CIT, the Company or any of their respective subsidiaries is
a party or of which any of their respective assets, properties or operations is
the subject which are not described in the Registration Statement and the
Prospectus, including ordinary routine litigation incidental to the business,
may not reasonably be expected to result in a Material Adverse Effect.
(xv) Possession of Intellectual Property. CIT, the Company and
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their respective subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions, copyrights, know-
how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks,
service marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now operated by
them, and neither CIT, the Company nor any of their respective subsidiaries has
received any notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual Property or of
any facts or circumstances which would render any Intellectual Property invalid
or inadequate to protect the interest of the Company or any of its subsidiaries
therein, and which infringement, conflict, invalidity or inadequacy, singly or
in the aggregate, if the subject of any unfavorable decision, ruling or finding,
would reasonably be expected to result in a Material Adverse Effect.
(xvi) Possession of Licenses and Permits. CIT, the Company and their
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respective subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; CIT, the Company and
their respective subsidiaries are in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, reasonably be expected to result in a Material
Adverse Effect; all of the Governmental Licenses are valid and in full force and
effect, except where the invalidity of such Governmental Licenses or the failure
of such Governmental Licenses to be in full force and effect would not
reasonably be expected to result in a Material Adverse Effect; and neither CIT,
the Company nor any of their respective subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably be expected to result in a
Material Adverse Effect.
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(xvii) Title to Property. CIT, the Company and their respective
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subsidiaries have good and marketable title to all real property owned by CIT,
the Company and their respective subsidiaries and good title to all other
properties owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances of any
Kind (collectively, "Liens"), except (A) as otherwise stated in the Registration
Statement and the Prospectus (B) utility easements serving such properties,
(E) matters of title not adversely affecting the use, value or marketability of
title to such real properties, (F) other statutory liens not due and payable or
(G) those which do not, singly or in the aggregate, materially affect the value
of such property and do not interfere with the use made and proposed to be made
of such property by CIT, the Company or any of their respective subsidiaries;
all Liens that are required to be disclosed in the Registration Statement and
the Prospectus are disclosed therein; none of CIT, the Company nor any of their
respective subsidiaries or, to the knowledge of CIT and the Company, any other
party to any lease relating to any such real property is in default under any
such lease and neither CIT nor the Company is aware of any event that, with the
giving of notice or the passage of time, or both, would constitute a default
under any such lease, except in each case such defaults that would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; each of the leases pursuant to which all or any portion of such
real property is demised is in full force and effect in all material respects
and, except as set forth in the Registration Statement or the Prospectus, no
material tenant thereunder has any right of first refusal to purchase the
demised premises thereunder; neither CIT, the Company nor any of their
respective subsidiaries party to any mortgages or other security documents or
other agreements encumbering or otherwise recorded against any such real
property is in default thereunder and neither CIT nor the Company is aware of
any event that, with the giving of notice or the passage of time, or both, would
constitute a default under any such mortgage, document or agreement, except in
each case such defaults that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; each of such real
properties is in compliance with all applicable codes, laws and regulations
(including without limitation, building and zoning codes, laws and regulations),
except for failures to comply that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; neither CIT nor the
Company has any knowledge of any pending or threatened condemnation, zoning
change or other proceeding or action that will in any manner affect the size of,
use of, improvements on, construction on or access to the applicable real
properties, except such proceedings or actions that would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect; and
any such real property and buildings held under lease by CIT, the Company or any
of their respective subsidiaries and described in the Prospectus are held by
them under valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere in any material respect with the use made and
proposed to be made of such real property and buildings by CIT, the Company or
their respective subsidiaries, as the case may be.
11
(xviii) Environmental Laws. Except as otherwise stated in the
------------------
Registration Statement and the Prospectus and except as would not, singly or in
the aggregate, reasonably be expected to result in a Material Adverse Effect,
(A) neither CIT, the Company nor any of their respective subsidiaries is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) CIT, the Company and their respective subsidiaries
have all permits, authorizations and approvals required under any applicable
Environmental Laws, (C) neither CIT, the Company, nor their respective
subsidiaries has received any notice of, and neither CIT nor the Company has any
knowledge of, any pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of noncompliance
or violation, investigation or proceedings relating to any Environmental Law
against or affecting CIT, the Company or any of their respective subsidiaries,
(D) neither CIT, the Company, nor their respective subsidiaries has received any
notice of, and neither CIT nor the Company has any knowledge of, any occurrence
or circumstance that would reasonably be expected to give rise to a claim or
liability under or pursuant to any Environmental Law, (E) CIT, the Company and
their respective subsidiaries have not used, and have not permitted the use of,
any of their respective real properties or any other real property operated by
any of them for activities or operations that involve the handling, use,
processing, manufacturing, generating, producing, storing, refining, recycling,
transporting, spilling, pumping, pouring, emitting, emptying, discharging,
injecting, burying, leaching, dumping, disposing of or releasing into the
environment or otherwise dealing with Hazardous Material, except for Hazardous
Materials utilized in the ordinary course of maintaining such real properties,
provided such use would not, in the ordinary course of business, reasonably be
expected to give rise to liability under any Environmental Laws, (F) except as
disclosed in the Registration Statement and Prospectus, neither CIT, the Company
nor their respective subsidiaries have any knowledge of any seepage, leaking,
escaping, leaching, discharging, injection, release, emission, spill, pumping,
pouring, emptying, dumping or other release of Hazardous Materials into the
environment relating to activities or operations at or from any such real
properties, including, without limitation, any land or water on, at, under or
adjacent to any such real properties, or on, at, under or from land or water
from which Hazardous Materials might seep, flow or drain into such land or
water, and (G) no such real property is included or, to the knowledge of CIT or
the Company, proposed form inclusion on the National Priorities List issued by
the United States Environmental Protection Agency ("EPA") pursuant to applicable
Environmental Laws, or on the Comprehensive Environmental Response, Compensation
and Liability Information System list, and no such real property has been
identified by the EPA as a potential CERCLA site or to the knowledge of CIT or
12
the Company included, or proposed form inclusion, on any list or inventory
issued pursuant to any other Environmental Law or issued by any other
governmental authority having or claiming jurisdiction under Environmental
Laws or with respect to such real property.
(xix) Insurance. CIT and/or the Company has and will maintain
---------
property and casualty insurance in favor of CIT, the Company and their
respective subsidiaries (as the case may be) with respect to each or their
respective real properties, in an amount and on such terms as is reasonable
and customary for businesses of the type conducted and proposed to be
conducted by CIT, the Company and their respective subsidiaries; neither
CIT, the Company nor their respective subsidiaries has received from any
insurance company written notice of any material defects or deficiencies
affecting the insurability of any such real properties.
(xx) No Filings, Regulatory Approvals etc. No filing with, or
------------------------------------
approval, authorization, consent, license, registration, qualification,
order or decree of, any court or governmental authority or agency, domestic
or foreign, is necessary or required for the performance by the Company
and/or CIT of their respective obligations under this Agreement, the
Indenture and the Notes or in connection with the transactions contemplated
by this Agreement, except such as have been previously obtained or
rendered, as the case may be.
(xxi) Investment Company Act. Neither CIT nor the Company is, and
----------------------
upon the and sale of the Notes as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be,
an "investment company" within the meaning of the Investment Company Act of
1940, as amended (the ("1940 Act").
(xxii) Ratings. The Medium-Term Note Program under which the Notes
-------
are issued (the "Program"), as well as the Notes, are rated Baa2 by Xxxxx'x
Investors Service, Inc. and [____] by Standard & Poor's Ratings Service, or
such other rating as to which the Company shall have most recently notified
the Agents pursuant to Section 4(a) hereof.
(b) Additional Certifications. Any certificate signed by any officer of
-------------------------
the Company and/or CIT or any of their subsidiaries and delivered to one or more
Agents or to counsel for the Agents in connection with an offering of Notes to
one or more Agents as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company and CIT to such Agent or Agents as to
the matters covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date subsequent
thereto.
3. Purchases as Principal; Solicitations as Agent.
----------------------------------------------
(a) Purchases as Principal. Notes purchased from the Company by the
----------------------
Agents, individually or in a syndicate, as principal shall be made in accordance
with terms agreed upon
13
between such Agent or Agents and the Company (which terms, unless otherwise
agreed, shall, to the extent applicable, include those terms specified in
Exhibit A hereto and shall be agreed upon orally, with written confirmation
prepared by such Agent or Agents and mailed to the Company). 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 and CIT 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 applicable agreement of one or more Agents to purchase Notes
from the Company as principal. Each purchase of Notes by one or more Agents as
principal, unless otherwise agreed, shall be at a discount from the principal
amount of each such Note equivalent to the applicable commission set forth in
Schedule A hereto. The Agents may engage the services of any broker or dealer in
connection with the resale of the Notes purchased by them as principal and may
allow all or any portion of the discount received from the Company in connection
with such purchases to such brokers or dealers. At the time of each purchase of
Notes from the Company by one or more Agents as principal, such Agent or Agents
shall specify the requirements for the officers' certificate, opinion of counsel
and comfort letter pursuant to Sections 7(b), 7(c) and 7(d) hereof.
If the Company and two or more Agents enter into an agreement pursuant to
which such Agents agree to purchase Notes from the Company as principal and one
or more of such Agents shall fail at the Settlement Date to purchase the Notes
which it or they are obligated to purchase (the "Defaulted Notes"), then the
nondefaulting Agents shall have the right, within 24 hours thereafter, to make
arrangements for one of them or one or more other Agents or underwriters to
purchase all, but not less than all, of the Defaulted Notes in such amounts as
may be agreed upon and upon the terms herein set forth; provided, however, that
if such arrangements shall not have been completed within such 24-hour period,
then:
(i) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of Notes to be so purchased by
all of such Agents on the Settlement Date, the nondefaulting Agents shall
be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective initial underwriting
obligations bear to the underwriting obligations of all nondefaulting
Agents; or
(ii) if the aggregate principal amount of Defaulted Notes exceeds
10% of the aggregate principal amount of Notes to be so purchased by all of
such Agents on the Settlement Date, such agreement shall terminate without
liability on the part of any nondefaulting Agent.
No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default. In the event of any such default which
does not result in a termination of such agreement, either the nondefaulting
Agents or the Company shall have the right to postpone the Settlement Date for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or the Prospectus or in any other documents or
arrangements.
14
(b) Solicitations as Agent. On the basis of the representations and
----------------------
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers for the purchase of
Notes upon the terms set forth in the Prospectus. The Agents are not authorized
to appoint sub-agents with respect to Notes sold through them as agent. All
Notes sold through an Agent as agent will be sold at 100% of their principal
amount unless otherwise agreed upon between the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of Notes through an Agent, as an agent
of the Company, commencing at any time for any period of time or permanently. As
soon as practicable after receipt of instructions from the Company, such Agent
will suspend solicitation of offers for the purchase of Notes from the Company
until such time as the Company has advised such Agent that such solicitation may
be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent, as an
agent of the Company, as set forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate or
-------------------------
formula, maturity date and other terms of the Notes specified in Exhibit A
hereto (as applicable) shall be agreed upon between the Company and the
applicable Agent(s) and specified in a pricing supplement to the Prospectus
(each, a "Pricing Supplement") to be prepared by the Company in connection with
each sale of Notes. Except as otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. Administrative
procedures with respect to the issuance and sale of the Notes (the "Procedures")
shall be agreed upon from time to time among the Company, the Agents and the
Trustee. The Agents and the Company agree to perform, and the Company agrees to
cause the Trustee to agree to perform, their respective duties and obligations
specifically provided to be performed by them in the Procedures.
4. Covenants of the Company and CIT.
--------------------------------
Each of the Company and CIT covenants and agrees with each Agent as
follows:
(a) Notice of Certain Events. The Company and/or CIT will notify the
------------------------
Agents immediately, and confirm such notice in writing, of (i) the effectiveness
of any post-effective amendment to the Registration Statement or the filing of
any amendment or supplement to the Prospectus (other than any amendment or
supplement thereto providing solely for the determination of the variable terms
of the Notes or relating solely to the offering of securities other than the
Notes), (ii) the receipt of any comments from the Commission, (iii) any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, (iv)
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement, or of any order preventing or
15
suspending the use of any preliminary prospectus, or of the initiation of any
proceedings for that purpose or (v) any change in the rating assigned by any
nationally recognized statistical rating organization to the Program or any debt
securities (including the Notes) of the Company, or the public announcement by
any nationally recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its rating of the
Program or any such debt securities, or the withdrawal by any nationally
recognized statistical rating organization of its rating of the Program or any
such debt securities. Each of the Company and CIT will prevent the issuance of
any stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(b) Filing or Use of Amendments. The Company and/or CIT will give the
---------------------------
Agents advance notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional Notes, any
amendment to the Registration Statement (including any filing under Rule 462(b)
of the 1933 Act Regulations) or any amendment or supplement to the prospectus
included in the Registration Statement at the time it became effective or to the
Prospectus (other than (i) an amendment or supplement thereto providing solely
for the determination of the variable terms of the Notes or relating solely to
the offering of securities other than the Notes, or (ii) an amendment or
supplement thereto that results merely from the incorporation by reference of
periodic reports into the Registration Statement in accordance with the
requirements of Form S-3, provided that a copy of such periodic report is
delivered to the Agent within three business days of filing), whether pursuant
to the 1933 Act, the 1934 Act or otherwise, will furnish to the Agents copies of
any such document a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file any such document to which the Agents
or counsel for the Agents shall reasonably object within three business days.
(c) Delivery of the Registration Statement. The Company has furnished
--------------------------------------
to each Agent and to counsel for the Agents, without charge, signed and
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed and conformed copies of all consents and
certificates of experts. The Registration Statement and each amendment thereto
furnished to the Agents will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(d) Delivery of the Prospectus. The Company will deliver to each
--------------------------
Agent, without charge, as many copies of each preliminary prospectus as such
Agent may reasonably request, and the Company hereby consents to the use of such
copies for purposes permitted by the 1933 Act. The Company will furnish to each
Agent, without charge, such number of copies of the Prospectus (as amended or
supplemented) as such Agent may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Agents will be identical to
any electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(e) Preparation of Pricing Supplements. The Company will prepare,
----------------------------------
with respect to any Notes to be sold to or through one or more Agents pursuant
to this Agreement, a
16
Pricing Supplement with respect to such Notes in a form previously approved by
the Agents. The Company will deliver such Pricing Supplement no later than 11:00
a.m., New York City time, on the business day following the date of the
Company's acceptance of the offer for the purchase of such Notes and will file
such Pricing Supplement in accordance with the provisions of Rule 424(b) under
the 1933 Act.
(f) Revisions of Prospectus -- Material Changes. Except as otherwise
-------------------------------------------
provided in subsection (m) of this Section 4, if at any time during the term of
this Agreement any event shall occur or condition shall exist as a result of
which it is necessary, in the reasonable opinion of counsel for the Agents or
counsel for the Company, to amend the Registration Statement in order that the
Registration Statement 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 or to amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time the Prospectus is delivered to a purchaser, or if it shall be
necessary, in the reasonable opinion of either such counsel, to amend the
Registration Statement or amend or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the Company
shall give prompt notice, confirmed in writing, to the Agents to cease the
solicitation of offers for the purchase of Notes in their capacity as agents and
to cease sales of any Notes they may then own as principal, and the Company will
use commercially reasonable efforts to promptly prepare and file with the
Commission, subject to Section 4(b) hereof, such amendment or supplement as may
be necessary to correct such statement or omission or to make the Registration
Statement and Prospectus comply with such requirements, and the Company will
furnish to the Agents, without charge, such number of copies of such amendment
or supplement as the Agents may reasonably request. In addition, the Company
will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of each
offering of Notes.
(g) Prospectus Revisions -- Periodic Financial Information. Except as
------------------------------------------------------
otherwise provided in subsection (m) of this Section 4, on or prior to the date
on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the first
three quarters of any fiscal year or preliminary financial statement information
with respect to any fiscal year, the Company shall furnish such information to
the Agents, confirmed in writing, and shall cause the Prospectus to be timely
amended or supplemented, if necessary, to include financial information with
respect thereto and corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and explanations as
shall be necessary for an understanding thereof or as shall be required by the
1933 Act or the 1933 Act Regulations.
(h) Prospectus Revisions -- Audited Financial Information. Except as
-----------------------------------------------------
otherwise provided in subsection (m) of this Section 4, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited consolidated financial statements of the
Company for the preceding fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall cause the Prospectus
to be
17
timely amended or supplemented, if necessary, to include such audited
consolidated financial statements and the report or reports, and consent or
consents to such inclusion, of the independent accountants with respect thereto,
as well as such other information and explanations as shall be necessary for an
understanding of such consolidated financial statements or as shall be required
by the 1933 Act or the 1933 Act Regulations.
(i) Earning Statements. The Company will timely file such reports
------------------
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earning statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(j) Reporting Requirements. The Company and CIT, during the period
----------------------
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods prescribed by the 1934 Act and the 1934
Act Regulations.
(k) Restriction on Offers and Sales of Securities. Unless otherwise
---------------------------------------------
agreed upon between one or more Agents acting as principal and the Company,
between the date of the agreement by such Agent(s) to purchase the related Notes
from the Company and the Settlement Date with respect thereto, the Company will
not, without the prior written consent of such Agent(s), issue, sell, offer or
contract to sell, grant any option for the sale of, or otherwise dispose of, any
debt securities of the Company (other than the Notes that are to be sold
pursuant to such agreement or commercial paper in the ordinary course of
business).
(l) Use of Proceeds. The Company will use the net proceeds received
---------------
by it from the issuance and sale of the Notes in the manner specified in the
Prospectus.
(m) Suspension of Certain Obligations. The Company shall not be
---------------------------------
required to comply with the provisions of subsections (f), (g) or (h) of this
Section 4 during any period from the time (i) the Agents shall have suspended
solicitation of offers for the purchase of Notes in their capacity as agents
pursuant to a request from the Company in its sole discretion and (ii) no Agent
shall then hold any Notes purchased from the Company as principal, as the case
may be, until the time the Company shall determine that solicitation of offers
for the purchase of Notes should be resumed or an Agent shall subsequently
purchase Notes from the Company as principal.
5. Conditions of Agents' Obligations.
---------------------------------
The obligations of one or more Agents to purchase Notes from the Company as
principal and to solicit offers for the purchase of Notes as an agent of the
Company, and the obligations of any purchasers of Notes sold through an Agent as
an agent of the Company, will be subject to the accuracy of the representations
and warranties on the part of the Company and CIT herein contained or contained
in any certificate of an officer of CIT, the Company or any of their respective
its subsidiaries delivered pursuant to the provisions hereof, to the performance
and observance by each of the Company and CIT of its covenants and other
obligations hereunder, and to the following additional conditions precedent:
18
(a) Effectiveness of Registration Statement. The Registration
---------------------------------------
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or shall be pending or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with.
(b) Legal Opinions. On the date hereof, the Agents shall have
--------------
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to the Agents:
(i) Opinion of Counsel for the Company. The favorable opinion of
----------------------------------
Xxxxx, Xxxxx & Xxxxx and Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP, counsel
for the Company and CIT, to the effect set forth in Exhibit B hereto and to
such further effect as the Agents may reasonably request.
(ii) Opinion of Counsel for the Agents. The favorable opinion of
---------------------------------
Xxxxxxx, Procter & Xxxx LLP, counsel for the Agents, with respect to the
matters set forth in the penultimate paragraph of Exhibit B hereto.
(c) Officer's Certificate. On the date hereof, there shall not have
---------------------
been, since the respective dates as of which information is given or
incorporated by reference in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of CIT, the Company and their respective subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Agents shall have received a certificate of the President or a
Vice President of the Company and of the chief financial officer and chief
accounting officer of the Company, dated as of the date hereof, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties of the Company and CIT herein contained are true
and correct with the same force and effect as though expressly made at and as of
the date of such certificate, (iii) the Company and CIT have complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the date of such certificate, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or, to the best
of such officer's knowledge, are threatened by the Commission.
(d) Comfort Letters of Independent Accountants. On the date hereof,
------------------------------------------
the Agents shall have received a letter from Xxxxxx Xxxxxxxx LLP the independent
certified accountants who have certified the financial statements included or
incorporated by reference in the Registration Statement and Prospectus, as then
amended or supplemented, dated as of the date hereof and in form and substance
satisfactory to the Agents, containing statements and information of the type
ordinarily included in accountant's "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference in the Registration Statement and the
Prospectus, as then amended or supplemented.
19
(e) Additional Documents. On the date hereof, counsel to the Agents
--------------------
shall have been furnished with such documents and opinions as such counsel may
require for the purpose of enabling such counsel to pass upon the issuance and
sale of Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; 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 Agents and to
counsel to the Agents.
If any condition specified in this Section 5 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 as
provided in Section 10 hereof and except that Sections 8, 9, 11, 14 and 15
hereof shall survive any such termination and remain in full force and effect.
6. Delivery of and Payment for Notes Sold through an Agent as Agent.
----------------------------------------------------------------
Delivery of Notes sold through an Agent as an agent of the Company shall be
made by the Company to such Agent for the account of any purchaser only against
payment therefor in immediately available funds. In the event that a purchaser
shall fail either to accept delivery of or to make payment for a Note on the
date fixed for settlement, such Agent shall promptly notify the Company and
deliver such Note to the Company and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure has occurred for any reason other than default by such
Agent in the performance of its obligations hereunder, the Company will
reimburse such Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Company's account.
7. Additional Covenants of the Company and CIT.
-------------------------------------------
Each of the Company and CIT further covenants and agrees with each Agent as
follows:
(a) Reaffirmation of Representations and Warranties. Each acceptance
-----------------------------------------------
by the Company of an offer for the purchase of Notes (whether to one or more
Agents as principal or through an Agent as agent), and each delivery of Notes
(whether to one or more Agents as principal or through an Agent as agent), shall
be deemed to be an affirmation that the representations and warranties of the
Company and CIT herein contained and contained in any certificate theretofore
delivered to the Agents pursuant hereto 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(s) or to the purchaser or its agent, as the case may be, of the
Notes relating to such acceptance or sale, as the case may be, as though made at
and as of each such time (it being understood that such representations and
warranties shall relate to the Registration Statement and Prospectus as amended
and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
-----------------------------------
Registration Statement or the Prospectus shall be amended or supplemented
(including an amendment or
20
supplement thereto that results from the incorporation by reference of annual
(Form 10-K or successor forms) or quarterly (Form 10-Q or succeessor forms)
reports filed under the 1934 Act into the Registration Statement in accordance
with the requirements of Form S-3, but excluding (x) an amendment or supplement
thereto that results from the incorporation by reference of other reports (such
as current reports on Form 8-K or successor forms) filed under the 1934 Act into
the Registration Statement in accordance with the requirements of Form S-3,
unless specifically requested by the Agent(s) after review of such reports and
(y) an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) the Company sells Notes to or through one or more
Agents, whether as principal or as agent, or (iii) the Company sells Notes in a
form not previously certified to the Agents by 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 or the date of effectiveness of such
amendment or supplement, as applicable, or the date of such sale, as the case
may be, in form satisfactory to the Agent(s) to the effect that the statements
contained in the certificate referred to in Section 5(c) hereof which were last
furnished to the Agents are true and correct at the time of the filing or
effectiveness of such amendment or supplement, as applicable, or the time of
such sale, as the case may be, 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 of the same tenor as the certificate referred to in
Section 5(c) 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 (it being understood that, in the case of clause (ii) above,
any such certificate shall also include a certification that there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of CIT, the Company and their
respective subsidiaries considered as one enterprise since the date of the
agreement by such Agent(s) to purchase Notes from the Company as principal).
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
-------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented
(including an amendment or supplement thereto that results from the
incorporation by reference of annual (Form 10-K or successor forms) or quarterly
(Form 10-Q or succeessor forms) reports filed under the 1934 Act into the
Registration Statement in accordance with the requirements of Form S-3, but
excluding (x) an amendment or supplement thereto that results from the
incorporation by reference of other reports (such as current reports on Form 8-K
or successor forms) filed under the 1934 Act into the Registration Statement in
accordance with the requirements of Form S-3, unless specifically requested by
the Agent(s) after review of such reports and (y) an amendment or supplement
providing solely for the determination of the variable terms of the Notes or
relating solely to the offering of securities other than the Notes), (ii) the
Company sells Notes to or through one or more Agents, whether as principal or as
agent or (iii) the Company sells Notes in a form not previously certified to the
Agents by the Company, the Company shall furnish or cause to be furnished
forthwith to the Agent(s) and to counsel to the Agents the written opinion of
Xxxxx, Xxxxx & Xxxxx, counsel to the Company and CIT, or other counsel
satisfactory to the Agent(s), dated the date of filing with the Commission or
the date of effectiveness of such amendment or supplement, as applicable, or the
date of such sale, as the case may be, in form and substance satisfactory to the
Agent(s), of the same tenor as the opinion referred to in Section 5(b)(1)
hereof, but modified, as
21
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 was 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) Subsequent Delivery of Comfort Letters. Each time that (i) the
--------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (including an amendment or supplement
thereto that results from the incorporation by reference of annual (Form 10-K or
successor forms) or quarterly (Form 10-Q or succeessor forms) reports filed
under the 1934 Act into the Registration Statement in accordance with the
requirements of Form S-3, but excluding (x) an amendment or supplement thereto
that results from the incorporation by reference of other reports (such as
current reports on Form 8-K or successor forms) filed under the 1934 Act into
the Registration Statement in accordance with the requirements of Form S-3,
unless specifically requested by the Agent(s) after review of such reports and
(y) an amendment or supplement relating solely to the issuance and/or offering
of securities other than the Notes) or (ii) the Company sells Notes to or
through one or more Agents, whether as principal or as agent, the Company shall
cause each of Xxxxxx Xxxxxxxx LLP forthwith to furnish to the Agent(s) letters,
dated the date of filing with the Commission or the date of effectiveness of
such amendment or supplement, as applicable, or the date of such sale, as the
case may be, in form satisfactory to the Agent(s), of the same tenor as the
letters referred to in Section 5(d) hereof but modified to relate to the
Registration Statement and Prospectus as amended and supplemented to the date of
such letters.
(e) Suspension of Certain Obligations. The Company shall not be
---------------------------------
required to comply with the provisions of Sections 7(b), 7(c) and 7(d) during
any period (a "Suspension Period") from the later of (i) the receipt by the
Agent(s) of written notice to the Agent(s) (a "Suspension Notice") given in
accordance with Section 13 hereof instructing the Agent(s) to suspend
solicitation of offers for the purchase of Notes in their capacity as agents and
(ii) such time as no Agent shall hold Notes purchased from the Company as
principal. The Company may at any time terminate a Suspension Period by
delivering written notice to the Agent(s) requesting that solicitation of offers
for the purchase of Notes by the Agent(s) be resumed or that Agents resume the
purchase of Notes from the Company as principal, whereby the Suspension Period
shall be deemed to have been terminated effective and conditioned upon the
delivery by the Company to the Agent(s) of each certificate, opinion and letter
that the Company would otherwise have been obligated to deliver pursuant to the
foregoingsuch sections during the entire duration of the Suspension, in form and
substance acceptable to the Agent(s); provided, however, that if since the date
of such Suspension Notice the Company shall have filed an annual report on Form
10-K (or any successor form) under the 1934 Act (a "Form 10-K"), such
certificates, opinions and letters need not be delivered with respect to any
amendment or supplement to the Registration Statement or Prospectus that
resulted merely from the incorporation by reference into the Registration
Statement in accordance with the requirements of Form S-3 of periodic reports
filed by the Company prior to the date of such Form 10-K, if such periodic
reports are no longer deemed
22
incorporated by reference into the Registration Statement under the requirements
of Form S-3 (it being understood that with respect to any report filed by the
Company under the 1934 Act that is deemed to be incorporated by reference into
the Registration Statement, the Company shall have delivered all such
certificates, opinions and letters before the Suspension Period terminates).
During a Suspension Period all obligations of the Agent(s), including the
obligation to purchase Notes from the Company as principal and to solicit offers
for the purchase of Notes as an agent of the Company, will be suspended.
8. Indemnification.
---------------
(a) Indemnification of the Agents. The Company and CIT, jointly and
-----------------------------
severally, agree to indemnify and hold harmless each Agent and each person, if
any, who controls such Agent within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading, or arising out of an untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject to Section
8(d) hereof) any such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that this indemnity does not apply to any loss, liability,
-------- -------
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company and/or CIT by the
Agents expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
23
supplement thereto) provided, further, that neither CIT nor the Company shall be
-------- -------
liable to the Agent(s) under this Section 8 to the extent that any such loss,
claim, damage or liability results solely from an untrue statement of material
fact contained in, or the omission of a material fact from, a Prospectus if (i)
such untrue statement or omission was completely corrected in a revised
prospectus supplement prior to the written confirmation of the sale of the Notes
giving rise to such liability, (ii) such Agent(s) sold Notes to the person
alleging such loss, claim, damage or liability without sending or giving the
revised prospectus supplement at or prior to the written confirmation of the
sale of the Notes giving rise to such liability, (iii) CIT or the Company had
furnished copies of the revised prospectus supplement to such Agent(s) in a
sufficient amount of time prior to the written confirmation of the sale of the
Notes giving rise to such liability to allow the Agent(s) to distribute the
revised prospectus supplement without unreasonable expense or effort and (iv)
such Agent(s) would not have been subject to such liability if it had delivered
the revised prospectus supplement to such person at or prior to the written
confirmation of such sale.
(b) Indemnification of Company, Directors and Officers. Each Agent
--------------------------------------------------
severally agrees to indemnify and hold harmless the Company, CIT, its directors,
each of its officers who signed the Registration Statement and each person, if
any, who controls the Company and/or CIT within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 8(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company and/or CIT by the Agents expressly for use
in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party
-------------------------------------
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. Counsel to the indemnified party shall be selected by the
indemnifying party (and shall be reasonably satisfactory to the indemnified
party), unless (i) such indemnifying party and the indemnified party shall have
mutually agreed to the contrary, (ii) such indemnifying party has failed within
a reasonable time to retain counsel reasonably satisfactory to such indemnified
party, or (iii) the named parties in any such proceeding (including any
impleaded parties) include an indemnified party and an indemnifying party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them, and in the event of (i),
(ii) or (iii) above, the indemnified party may select its own counsel at the
expense of the Company. An indemnifying party may participate at its own expense
in the defense of any such action; provided, however, that the counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified parties
in connection with any
24
one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or 9 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any
--------------------------------------------------
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 8(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed such indemnified party in accordance with such request prior
to the date of such settlement, and (iii) such indemnified party shall not have
previously received written notice that such indemnifying party is contesting,
in good faith, the amount of such reimbursements as unreasonable.
9. Contribution.
------------
If the indemnification provided for in Section 8 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and CIT, on the one hand, and the
applicable Agent(s), on the other hand, from the offering of the Notes that were
the subject of the claim for indemnification or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and/or CIT, on the one hand,
and the applicable Agent(s), on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and CIT, on the one hand, and
the applicable Agent(s), on the other hand, in connection with the offering of
the Notes that were the subject of the claim for indemnification shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of such Notes (before deducting expenses) received by the Company and
the total discount or commission received by each applicable Agent, as the case
may be, bears to the aggregate initial offering price of such Notes.
25
The relative fault of the Company and/or CIT, on the one hand, and the
applicable Agent(s), on the other hand, shall be determined by reference to
among other things, whether any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company and/or CIT or by the applicable Agent(s) and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, CIT and the Agents agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the applicable Agent(s) 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 above in this Section 9. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 9 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any applicable untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, (i) no Agent shall be
required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of any applicable untrue or alleged untrue statement or omission or
alleged omission and (ii) 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. In addition, in connection with an offering of Notes
purchased from the Company by two or more Agents as principal, the respective
obligations of such Agents to contribute pursuant to this Section 9 are several,
and not joint, in proportion to the aggregate principal amount of Notes that
each such Agent has agreed to purchase from the Company and CIT.
For purposes of this Section 9, each person, if any, who controls an Agent
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such Agent, and each director of
the Company and/or CIT, each officer of the Company and/or CIT and each person,
if any, who controls the Company and/or CIT within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company and CIT.
26
10. Payment of Expenses.
-------------------
Each of the Company and CIT covenants and agrees that the Company and/or
CIT will pay all expenses incident to the performance of its obligations under
this Agreement, including:
27
(a) The preparation, filing, printing and delivery of the
Registration Statement as originally filed and all amendments thereto and any
preliminary prospectus, the Prospectus and any amendments or supplements
thereto;
(b) The preparation, printing and delivery of this Agreement and the
Indenture;
(c) The preparation, issuance and delivery of the Notes, including
any fees and expenses relating to the eligibility and issuance of Notes in book-
entry form and the cost of obtaining CUSIP or other identification numbers for
the Notes;
(d) The fees and disbursements of the Company's accountants, counsel
and other advisors or agents (including any calculation agent or exchange rate
agent) and of the Trustee and its counsel;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the Program and incurred from
time to time in connection with the transactions contemplated hereby;
(f) The fees charged by nationally recognized statistical rating
organizations for the rating of the Program and the Notes;
(g) The fees and expenses incurred in connection with any listing of
Notes on a securities exchange;
(h) The filing fees incident to, and the reasonable fees and
disbursements of counsel to the Agents in connection with, the review, if any,
by the National Association of Securities Dealers, Inc. (the "NASD"); and
(i) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company.
11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of CIT, the Company or any of their respective
subsidiaries submitted pursuant hereto or thereto shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
the Agents or any controlling person of an Agent, or by or on behalf of the
Company or CIT, and shall survive each delivery of and payment for the Notes.
12. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any
-----------------------------
agreement by one or more Agents to purchase Notes from the Company as principal)
may be terminated for any reason, at any time by either the Company or an Agent,
as to itself, upon the giving of 30 days' prior written notice of such
termination to the other party hereto.
28
(b) Termination of Agreement to Purchase Notes as Principal. The
-------------------------------------------------------
applicable Agent(s) may terminate any agreement by such Agent(s) to purchase
Notes from the Company as principal, immediately upon notice to the Company, at
any time prior to the Settlement Date relating thereto, if (i) there has been,
since the date of such agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, CIT and their subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or, if such Notes are denominated and/or payable in, or indexed
to, one or more foreign or composite currencies, in the international financial
markets, or any outbreak of hostilities or escalation thereof or other calamity
or crisis or any change or development or event involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of such
Agent(s), impracticable to market such Notes or enforce contracts for the sale
of such Notes, or (iii) trading in any securities of the Company or CIT has been
suspended or limited by the Commission or a national securities exchange, or if
trading generally on the New York Stock Exchange or the American Stock Exchange
or in the Nasdaq National Market has been suspended or limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by either of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, or (iv) a banking
moratorium has been declared by either Federal or New York authorities or by the
relevant authorities in the country or countries of origin of any foreign or
composite currency in which such Notes are denominated and/or payable, or (v)
the rating assigned by any nationally recognized statistical rating organization
to the Program or any debt securities (including the Notes) of the Company as of
the date of such agreement shall have been lowered or withdrawn since that date
or if any such rating organization shall have publicly announced that it has
under surveillance or review its rating of the Program or any such debt
securities, or (vi) there shall have come to the attention of such Agent(s) any
facts that would cause such Agent(s) to believe that the Prospectus, at the time
it was required to be delivered to a purchaser of such 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 the light of the circumstances existing
at the time of such delivery, not misleading.
(c) General. In the event of any such termination, neither party
-------
will have any liability to the other party hereto, except that (i) the Agents
shall be entitled to any commissions earned in accordance with the third
paragraph of Section 3(b) hereof, (ii) if at the time of termination (a) any
Agent shall own any Notes purchased by it from the Company as principal or (b)
an offer to purchase any of the Notes has been accepted by the Company but the
time of delivery to the purchaser or his agent of such Notes relating thereto
has not occurred, the covenants set forth in Sections 4 and 7 hereof shall
remain in effect until such Notes are so resold or delivered, as the case may
be, and (iii) the covenant set forth in Section 4(i) hereof, the provisions of
Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15 hereof
shall remain in effect.
29
13. Notices.
-------
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company or CIT:
Cabot Industrial Properties, L.P.
Two Center Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000-1906
Attention: Xxxxx Xxxxxxxxx-Xxxxxxxxx, CFO
Telecopy No.: (000) 000-0000
If to the Agents:
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center
Floor 00
Xxx Xxxx, Xxx Xxxx 00000
Attention: MTN Product Management
Telecopy No.: (000) 000-0000
BNY Capital Markets, Inc.
0 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10286
Attention: Xxxxxx X. Xxxxxxxx, Vice President
Telecopy No.: (000) 000-0000
Chase Securities Inc.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium Term Note Desk
Telecopy No.: (000) 000-0000
First Union Securities, Inc.
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Telecopy No.: (000) 000-0000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
30
29th Floor
New York, New York 10004
Attention: Xxx Xxxxxxxxxxx,
Medium Term Note Trading
Telecopy No.: (000) 000-0000
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Transaction Execution Group
Telecopy No.: (000) 000-0000
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 13.
14. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon the Agents
and the Company and CIT and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons, officers and directors referred to in
Sections 8 and 9 hereof and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors, and said controlling persons, officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes shall be deemed to
be a successor by reason merely of such purchase.
15. GOVERNING LAW; FORUM.
--------------------
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR PROCEEDING
BROUGHT BY THE COMPANY AGAINST ANY AGENT IN CONNECTION WITH OR ARISING UNDER
THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL COURT OF
APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW
YORK.
16. Effect of Headings.
------------------
31
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
17. Counterparts.
------------
This Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts hereof shall constitute
a single instrument.
32
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Distribution Agreement, along with all counterparts, will become a binding
agreement among the Agents and the Company and CIT in accordance with its terms.
Very truly yours,
CABOT INDUSTRIAL PROPERTIES, L.P.
By: Cabot Industrial Trust, its general
partner
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
CABOT INDUSTRIAL TRUST
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated
-----------------------------------------------------
Authorized Signatory
BNY CAPITAL MARKETS, INC.
By: /s/ BNY Capital Markets, Inc.
-----------------------------
Authorized Signatory
33
CHASE SECURITIES INC.
By: /s/ Chase Securities Inc.
---------------------------------
Authorized Signatory
FIRST UNION SECURITIES, INC.
By: /s/ First Union Securities, Inc.
---------------------------------
Authorized Signatory
XXXXXXX, XXXXX & CO.
By: /s/ Xxxxxxx, Xxxxx & Co.
---------------------------------
Authorized Signatory
X.X. XXXXXX SECURITIES INC.
By: /s/ X.X. Xxxxxx Securities, Inc.
---------------------------------
Name: Xxxxxx Xxxx
Title: Managing Director
34
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall
pay the applicable Agent, on a discount basis, a commission for the sale of each
Note equal to the principal amount of such Note multiplied by the appropriate
percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months to less than 1 year..................... .125%
From 1 year to less than 18 months.................... .150
From 18 months to less than 2 years................... .200
From 2 years to less than 3 years..................... .250
From 3 years to less than 4 years..................... .350
From 4 years to less than 5 years..................... .450
From 5 years to less than 6 years..................... .500
From 6 years to less than 7 years..................... .550
From 7 years to less than 10 years.................... .600
From 10 years to less than 15 years................... .625
From 15 years to less than 20 years................... .700
From 20 years to 30 years............................. .750
Greater than 30 years................................. /1/
______________________
/1/ As agreed to by the Company and the applicable Agent at the time of
sale.
35
EXHIBIT A
PRICING TERMS
Principal Amount: $_______
(or principal amount of foreign or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
[_] LIBOR Reuters Page:
[_] LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
[_] Weekly Average
[_] Monthly Average
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
36
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Price to Public: ___%, plus accrued interest, if any, from __________
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
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EXHIBIT B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)(1)
(1) CIT has been duly organized and is validly existing as a real estate
investment trust in good standing under the laws of Maryland.
(2) CIT has trust power and authority to own, lease and operate its
properties and to conduct the business in which is it engaged and proposes to
engage, as described in the Prospectus and to enter into and perform its
obligations under the Distribution Agreement and the Indenture.
(3) CIT is duly qualified as a foreign trust to transact business and is in
good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing would
not reasonably be expected to result in a Material Adverse Effect.
(4) All of the issued and outstanding shares of beneficial interest of CIT
have been duly authorized and are validly issued, fully paid and non-assessable.
(5) The Company has been duly formed and is validly existing as a limited
partnership in good standing under the laws of Delaware.
(6) The Company has partnership power and authority to own, lease and
operate its properties and to conduct the business in which it is engaged and
proposes to engage, as described in the Prospectus and to enter into and perform
its obligations under the Distribution Agreement and Indenture.
(7) The Company is duly qualified or registered as a limited partnership
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not reasonably be expected to result in a Material Adverse
Effect.
(8) Each Significant Subsidiary has been duly organized and is validly
existing under the laws of the jurisdiction of its organization, has
organizational power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not reasonably be expected to result in a Material
Adverse Effect; except as stated in the Prospectus, all of the issued and
outstanding shares of capital stock or other partnership or membership interests
of each Significant Subsidiary has been duly authorized and are validly issued,
fully paid and non-assessable and, to the best of our knowledge, are owned by
the Company, directly or through
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subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(9) The Distribution Agreement has been duly authorized, executed and
delivered by CIT and the Company.
(10) The Indenture has been duly authorized, executed and delivered by the
Company, as issuer and CIT, as guarantor, and (assuming due authorization,
execution and delivery thereof by the applicable Trustee) constitutes a valid
and legally binding agreement of the Company and CIT, enforceable against the
Company and CIT in accordance with its terms, except as the enforcement thereof
may be limited by (A) bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally, (B)
general equitable principles (regardless of whether enforcement is considered in
a proceeding in equity or at law), (C) requirements that a claim with respect
to any debt securities issued under the Indenture that are payable in a foreign
or composite currency (or a foreign or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (D) governmental authority to
limit, delay or prohibit the making of payments outside the United States.
(11) The Notes have been duly authorized by the Company and by CIT as the
general partner of the Company, for offer, sale, issuance and delivery pursuant
to the Distribution Agreement and, when executed, issued, authenticated and
delivered in the manner provided for in the Indenture and delivered against
payment of the consideration therefor, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, (B) general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law), (C) requirements that a claim with respect to any Notes payable in a
foreign or composite currency (or a foreign or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (D) governmental
authority to limit, delay or prohibit the making of payments outside the United
States; and the Notes, in the forms certified on the date hereof, are in the
form contemplated by, and each registered holder thereof is entitled to the
benefits of, the Indenture.
(12) The Indenture and the Notes, in the forms certified on the date
hereof, conform in all material respects to the statements relating thereto
contained in the Prospectus and are in substantially the form filed or to be
filed or incorporated by reference or to be incorporated by reference, as the
case may be, as an exhibit to the Registration Statement.
(13) The information in the Prospectus under "Description of Debt
Securities", "Description of Guarantees of Debt Securities", "Special Provisions
Relating to Foreign Currency Notes" and "Federal Income Tax Consequences", or
any caption purporting to cover such matters, the information in the Annual
Report on Form 10-K under "___" and the information in the Registration
Statement under Item 15, to the extent that such information constitutes matters
of
39
law, summaries of legal matters, the Company's charter and bylaws or legal
proceedings, or legal conclusions, has been reviewed by us and is correct in all
material respects; and our opinion set forth under "Federal Income Tax
Consequences" is confirmed.
(14) To our knowledge, neither CIT, the Company nor any of their respective
subsidiaries is in violation of its partnership agreement, declaration of trust,
certificate of incorporation, by-laws or other charter documents, as the case
may be, and no default by CIT, the Company or any of their respective
subsidiaries exists in the due performance or observance of any obligation,
agreement, covenant or condition contained in any Agreement and Instrument that
is described or referred to in the Registration Statement or the Prospectus or
filed or incorporated by reference as an exhibit to the Registration Statement,
except for any such violations or defaults as would, individually or in the
aggregate, not reasonably be expected to have a Material Adverse Effect on CIT
or the Company..
(15) The execution, delivery and performance of the Distribution Agreement,
the Indenture and the Notes and any other agreement or instrument entered into
or issued or to be entered into or issued by CIT and/or the Company in
connection with the transactions contemplated by the Distribution Agreement, the
consummation of the transactions contemplated by the Distribution Agreement
(including the issuance and sale of the Notes and the use of the proceeds
therefrom as described in the Prospectus) and the compliance by CIT and the
Company with their respective obligations thereunder have been duly authorized
by all necessary trust and partnership action, as applicable, and do not and
will not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment Event
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of CIT, the Company or any
of their respective subsidiaries pursuant to, any Agreement and Instrument known
to us, nor will such action result in any violation of the provisions of the
partnership agreement, declaration of trust, certificate of incorporation, by-
laws or other charter documents of CIT, the Company or any of their respective
subsidiaries or any applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to us, of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over CIT, the Company or any of
their respective subsidiaries or any of their assets, properties or operations,
except for such violations, breaches, defaults, repayment events, liens, charges
or encumbrances, as would, individually or in the aggregate, not reasonably be
expected to have a Material Adverse Effect on CIT or the Company.
(16) To our knowledge, there is no action, suit, proceeding, inquiry or
investigation to which CIT, the Company or any of their respective subsidiaries
thereof is a party or to which the assets, properties or operations of CIT, the
Company or any of their respective subsidiaries thereof is subject, before or
brought by any court or governmental agency or body, domestic or foreign, which,
individually or in the aggregate, might reasonably be expected to result in a
Material Adverse Effect or which might reasonably be expected to materially and
adversely affect CIT, the Company or any of their respective subsidiaries, the
performance by CIT and the Company of their respective obligations under the
Distribution Agreement, the Indenture or the Notes or the consummation of the
transactions contemplated by the Distribution Agreement.
40
(17) All descriptions in the Prospectus of contracts and other documents to
which CIT, the Company or any of their respective subsidiaries are a party are
accurate in all material respects; and, to our knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits to the Registration Statement other than
those described or referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references thereto are correct
in all material respects.
(18) The Registration Statement has been declared effective under the 1933
Act; any required filing of the Prospectus pursuant to Rule 424(b) has been or
will be made in the manner and within the time period required by Rule 424(b);
and to our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been initiated or are pending or threatened by the Commission.
(19) The Registration Statement and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the financial statements and supporting schedules included therein or omitted
therefrom and the Trustee's Statement of Eligibility on Form T-1 (the "Form T-
1"), as to which we express no opinion), complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(20) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules included therein or omitted
therefrom, as to which we express no opinion), when they were filed with the
Commission, complied as to form in all material respects with the requirements
of the 1934 Act and the 1934 Act Regulations.
(21) Neither CIT nor the Company is, and upon the issuance and sale of the
Notes and the application of the net proceeds therefrom as described in the
Prospectus, neither CIT nor the Company will be, an "investment company" within
the meaning of the 1940 Act.
(22) No filing with, or approval, authorization, consent, license,
registration, qualification, order or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the
performance by CIT and the Company of their respective obligations under the
Distribution Agreement, the Indenture or the Notes or the consummation of the
transactions contemplated in the Distribution Agreement other than under the
1933 Act, the 1933 Act Regulations, the 1939 Act, the 1939 Act Regulations,
applicable state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Agent(s) which have been made, obtained or
rendered, as applicable.
In addition to the above legal opinions, we hereby advise you as follows:
In the course of our representation of CIT and the Company in connection with
the offering of the Notes provided for in the Distribution Agreement, we have
participated in conferences with representatives of CIT and the Company, you and
your counsel, at which such conferences the contents of the
41
Registration Statement, including the Prospectus contained therein, and related
matters were discussed. We have not independently verified the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, including the Prospectus contained therein. However, nothing has come
to our attention that would lead us to believe that the Registration Statement
or any post-effective amendment thereto (except for financial statements,
supporting schedules and other financial data included therein or omitted
therefrom and for the Form T-1, as to which we make no statement), at the time
the Registration Statement or any post-effective amendment thereto (including
the filing of CIT's Annual Report on Form 10-K with the Commission) became
effective or at the date of any agreement of the applicable Agent(s) to purchase
Notes from the Company as principal, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus
or any amendment or supplement thereto (except for financial statements,
supporting schedules and other financial data included therein or omitted
therefrom, as to which we make no statement), at the time the Prospectus was
issued, at the time any such amended or supplemented prospectus was issued or at
the date hereof, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering our opinion, we may rely as to matters of fact (but not as to
legal conclusions), to the extent they deem proper, on certificates of
responsible officers of CIT, the Company and public officials.
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