$250,000,000
CIT CAPITAL TRUST I
7.70% Preferred Capital Securities
AMENDED AND RESTATED PURCHASE AGREEMENT
February 21, 1997
Xxxxxx Brothers Inc.
Chase Securities Inc.
Salomon Brothers Inc
UBS Securities LLC
c/x Xxxxxx Brothers Inc.
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
CIT Capital Trust I, a Delaware statutory business trust (the "Trust"),
proposes to sell to you (collectively, the "Initial Purchasers") $250,000,000
7.70% Preferred Capital Securities (liquidation amount $1000 per Capital
Security) (the "Capital Securities"), guaranteed (the "Guarantee"; together with
the Capital Securities, the "Securities") by the Company (as defined herein) to
the extent set forth in the Guarantee Agreement (the "Guarantee Agreement") to
be entered into between the Company and The Bank of New York, as Guarantee
Trustee (the "Guarantee Trustee"). This agreement amends, restates and replaces
in its entirety the Purchase Agreement dated February 20, 1997. The CIT Group
Holdings, Inc., a Delaware corporation (the "Company"), will be the owner of all
of the beneficial ownership interests represented by common securities (the
"Common Securities") of the Trust. Concurrently with the issuance of the
Securities and the Company's purchase of all of the beneficial interests
represented by the Common Securities of the Trust, the Trust will invest the
proceeds of each thereof in the Company's 7.70% Junior Subordinated Debentures
(the "Junior Subordinated Debentures"). The Junior Subordinated Debentures are
to be issued pursuant to an Indenture (the "Indenture") to be entered into
between the Company and The Bank of New York, as Indenture Trustee (the
"Indenture Trustee").
The Securities will be offered without being registered under the
Securities Act of 1933, as amended (the "Securities Act"), in reliance on
exemptions therefrom.
In connection with the sale of the Securities, the Trust and the Company
will prepare a final offering memorandum (the "Memorandum") setting forth or
including a description of the terms of the Securities, the terms of the
offering, a description of the Company and the Trust, and any material
developments relating to the Company occurring after the date of the most recent
financial statements included therein.
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1. Representations, Warranties and Agreements of the Company and the Trust.
The Company and the Trust, jointly and severally, represent and warrant to, and
agree with the Initial Purchasers that as of the date hereof:
(a) The Memorandum will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this Section 1(a) do not apply to statements or omissions in the Memorandum
based upon information furnished to the Company or the Trust by or through
you expressly for use therein. Reference herein to the Memorandum shall be
deemed to refer to and include any document filed by the Company under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), which is
incorporated in the Memorandum by reference.
(b) Assuming the accuracy of the representations and warranties and
compliance with the agreements of the Initial Purchasers contained herein,
it is not required by applicable law or regulation in connection with the
offer, sale and delivery of the Securities to you in the manner
contemplated by this Agreement to register the Securities or the Junior
Subordinated Debentures under the Securities Act or to qualify the
Declaration (as defined herein), the Guarantee Agreement or the Indenture
in respect of the Securities or the Junior Subordinated Debentures under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(c) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of
the State of Delaware (the "Delaware Business Trust Act") with the trust
power and authority to own property and conduct its business as described
in the Memorandum, and has conducted and will conduct no business other
than the transactions contemplated by this Agreement as described in the
Memorandum; the Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Registration Rights Agreement
(the "Registration Rights Agreement") to be entered into among the Company,
the Trust and the Initial Purchasers, the Amended and Restated Declaration
of Trust (the "Declaration") among the Company, as sponsor, and Xxxxxx X.
Xxxxxx, Xx., Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxx (the "Trustees"), and
the agreements and instruments contemplated by the Declaration and
described in the Memorandum; the Trust has no liabilities or obligations
other than those arising out of the transactions contemplated by this
Agreement and the Declaration and described in the Memorandum; and the
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Trust is not a party to or subject to any action, suit or proceeding of any
nature.
(d) The Declaration has been duly authorized and, when duly executed
and delivered by the Company, as Sponsor, and the Trustees, and assuming
due authorization, execution and delivery of the Declaration by the
Property Trustee and the Delaware Trustee, the Declaration will be a valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing, and will
conform to all statements relating thereto in the Memorandum.
(e) All of the outstanding beneficial interests in the Trust have
been, and the Capital Securities and the Common Securities, upon issuance
and delivery and payment therefor in the manner described herein, will be,
duly authorized, validly issued, fully paid and non-assessable and will
conform to the descriptions of the Capital Securities and the Common
Securities contained in the Memorandum.
(f) Each of the Indenture and the Guarantee Agreement has been duly
authorized and, when duly executed and delivered by the proper officers of
the Company (assuming, in the case of the Indenture, due execution and
delivery by the Indenture Trustee and, in the case of the Guarantee
Agreement, due execution and delivery by the Guarantee Trustee) and
delivered by the Company, will each constitute a valid and legally binding
agreement of the Company enforceable against the Company in accordance with
its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; and the Junior Subordinated
Debentures and the Guarantee have been duly authorized, and, when duly
executed, authenticated, issued and delivered as provided in the Indenture
and the Guarantee Agreement, respectively, and delivered against payment of
the purchase price therefor as provided in this Agreement, will be duly and
validly issued and outstanding, and will constitute valid and legally
binding obligations of the Company entitled to the benefits of the
Indenture and the Guarantee Agreement, respectively, and enforceable
against the Company in accordance with their terms, subject to the effects
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of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing; and the Junior Subordinated Debentures and the Guarantee,
when issued and delivered, will conform to the descriptions thereof
contained in the Memorandum.
(g) This Agreement has been duly authorized, executed and delivered by
each of the Trust and the Company and the Registration Rights Agreement has
been duly authorized and will be duly delivered and executed by each of the
Trust and the Company.
(h) The execution, delivery and performance of this Agreement, the
Declaration, the Registration Rights Agreement, the Common Securities and
the Capital Securities by the Trust, the purchase of the Junior
Subordinated Debentures by the Trust from the Company, the distribution of
the Junior Subordinated Debentures upon the liquidation of the Trust in the
circumstances contemplated by the Declaration and described in the
Memorandum, and the consummation of the transactions contemplated herein
and in the Declaration (the "Trust Transactions"), will not conflict with
or result in a violation of any statute or order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Trust or
any of its assets; and except for such consents, approvals, authorizations,
registrations or qualifications as may be required under applicable state
securities laws in connection with the purchase and distribution of the
Capital Securities by the Initial Purchasers, no consent, approval,
authorization or order of or filing or registration with, any such court or
governmental agency or body is required for the Trust Transactions.
(i) The execution, delivery and performance of this Agreement, the
Guarantee Agreement, the Registration Rights Agreement, the Indenture and
the Junior Subordinated Debentures by the Company, the purchase of the
Common Securities by the Company from the Trust, and the consummation by
the Company of the transactions herein (the "Company Transactions") will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the properties or
assets of the Company or any of its subsidiaries is subject, nor will such
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actions result in any violation of the provisions of the charter or by-laws
of the Company or any of its subsidiaries or any statute or order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company, any of its subsidiaries or any of their properties or
assets; and except for such consents, approvals, authorizations,
registrations or qualifications as may be required under applicable state
securities laws in connection with the purchase and distribution of the
Capital Securities by the Initial Purchasers, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the Company Transactions.
(j) Neither the Company nor any subsidiary nor the Trust is an
"investment company" within the meaning of such term under the Investment
Company Act of 1940, as amended, and the rules and regulations of the
Securities and Exchange Commission (the "Commission") thereunder.
(k) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Delaware, is duly
qualified to do business and is in good standing as a foreign corporation
in each jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification, save where the failure
to be so qualified could not reasonably be expected to have a material
adverse effect on the business or property of the Company, and the Company
has all power and authority necessary to own or hold its properties and to
conduct the businesses in which it is engaged.
(l) The financial statements (including the related notes and
supporting schedules) incorporated in the Memorandum present fairly the
financial condition and results of operations of the entities purported to
be shown thereby, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved.
(m) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company, whose report is incorporated by reference in the
Memorandum and who have delivered the initial letter referred to in Section
hereof, are independent public accountants as required by the Securities
Act and the Rules and Regulations during the periods covered by the
financial statements on which they reported incorporated by reference in
the Memorandum.
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(n) Since the date as of which information is given in the Memorandum
through the date hereof, and except as may otherwise be disclosed in the
Memorandum, the Trust has not issued or granted any securities and neither
the Company nor the Trust has (i) incurred any liability or obligation,
direct or contingent, other than liabilities and obligations which were
incurred in the ordinary course of business, (ii) entered into any
transaction not in the ordinary course of business or (iii) in the case of
the Company, declared or paid any dividend on its capital stock.
(o) Neither the Company nor any of its affiliates (as defined in Rule
501(b) of Regulation D under the Securities Act, an "Affiliate") has
directly, or through any agent, (i) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any security (as
defined in the Securities Act) which is or will be integrated with the sale
of the Capital Securities in a manner that would require the registration
under the Securities Act of the Securities or (ii) engaged in any form of
general solicitation or general advertising in connection with the offering
of the Securities (as those terms are used in Regulation D under the
Securities Act), or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act.
2. Purchase of the Capital Securities by the Initial Purchasers. (i) On the
basis of the representations and warranties herein contained, and subject to the
terms and conditions herein set forth, the Trust agrees to sell to you, and each
of you, severally and not jointly, agrees to purchase from the Trust, 80% of the
liquidation amount of the Capital Securities set forth opposite each Initial
Purchaser's name in Schedule 1 hereto at a purchase price equal to 99.544% of
their liquidation amount and 20% of the liquidation amount of the Capital
Securities set forth opposite each Initial Purchaser's name in Schedule 1 hereto
at a purchase price equal to 99.209% of their liquidation amount.
As compensation to the Initial Purchasers for their commitments hereunder,
the Company agrees to pay the Initial Purchasers a commission of 1% of the
liquidation amount of the Capital Securities set forth in Schedule 1 opposite
each Initial Purchaser's name.
(ii) The Company shall not be obligated to deliver any of the Capital
Securities, except upon payment for all of the Capital Securities to be
purchased as hereinafter provided.
3. Sale and Resale of the Capital Securities by the Initial Purchasers. You
have advised the Company that you propose to offer the Capital Securities for
resale upon the terms and conditions set forth in this Agreement and in the
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Offering Memorandum. You hereby represent and warrant to, and agree with, the
Company that you (i) are purchasing the Capital Securities pursuant to a private
sale exempt from registration under the Securities Act, (ii) have not and will
not solicit offers for, or offer or sell, the Capital Securities by means of any
form of general solicitation or general advertising or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act, (iii)
have and will solicit offers for the Capital Securities only from, and have and
will offer, sell or deliver the Capital Securities, as part of their initial
offering, only to (A) in the case of offers inside the United States, (1)
persons whom you reasonably believe to be qualified institutional buyers
("Qualified Institutional Buyers") as defined in Rule 144A under the Securities
Act, as such rule may be amended from time to time ("Rule 144A") or, if any such
person is buying for one or more institutional accounts for which such person is
acting as fiduciary or agent, only when such person has represented to you that
each such account is a Qualified Institutional Buyer, to whom notice has been
given that such sale or delivery is being made in reliance on Rule 144A or (2)
institutional accredited investors ("Accredited Investors") as defined in Rule
501(a)(1), (2), (3) or (7) under Regulation D who execute letters of
representation in the form included as Appendix A to the Offering Memorandum in
private sales exempt from registration under the Securities Act (such Capital
Securities to be issued in certificated form) and (B) in the case of offers
outside the United States, to persons other than U.S. persons ("foreign
purchasers", which term shall include dealers or other professional fiduciaries
in the United States acting on a discretionary basis for foreign beneficial
owners (other than an estate or trust)), in such transactions only in accordance
with Regulation S under the Securities Act, and you have not offered or sold,
and will not offer or sell, Capital Securities to, or for the account or benefit
of, U.S. persons (x) as part of your distribution at any time or (y) otherwise
until one year after the Closing Time, (iv) are a Qualified Institutional Buyer
and an Accredited Investor, (v) (x) have not offered or sold and will not offer
or sell any Capital Securities to persons in the United Kingdom, except to
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or payment) for the purposes of their
businesses or otherwise in circumstances which do not constitute an offer to the
public in the United Kingdom for purposes of the Public Offers of Securities
Regulations 1995, (y) have complied and will comply with all applicable
provisions of the Financial Services Xxx 0000 of the United Kingdom with respect
to anything done by it in relation to the Capital Securities in, from or
otherwise involving the United Kingdom, and (z) have only issued or passed on
and will only issue or pass on in the United Kingdom any document in connection
with the issue of the Capital Securities to a person who is of a kind described
in Article 8 of the Financial Services Xxx 0000 (Investment Advertisements)
(Exemptions) (No. 2) Order 1995 of the United Kingdom or is a person to whom the
document may otherwise lawfully be issued or passed on.
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4. Delivery of and Payment for the Capital Securities. (a) Payment of the
purchase price for, and delivery of, the Capital Securities shall be made at the
offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, New York, New York or at such other place
as shall be agreed upon by the Company and you, at 9:30 a.m. (New York time), on
February 25, 1997 or at such other time or date as you and the Company shall
determine (such date and time of payment and delivery being herein called the
"Closing Date").
(b) On the Closing Date, payment shall be made to the Company in
immediately available funds by wire transfer to such account or accounts as the
Company shall specify prior to the Closing Date or by such means as the parties
hereto shall agree prior to the Closing Date against delivery to you of the
certificates evidencing the Capital Securities. Upon delivery, the Capital
Securities shall be registered in such names and in such denominations as the
Initial Purchasers shall request in writing not less than two full business days
prior to the Closing Date. For the purpose of expediting the checking and
packaging of certificates evidencing the Capital Securities, the Company agrees
to make such certificates available for inspection at least 24 hours prior to
the Closing Date.
5. Further Agreements of the Company. Each of the Company and the Trust
agrees:
(a) To furnish to you, without charge, as many copies of the
Memorandum and any supplements and amendments thereto as you may reasonably
request.
(b) Prior to making any amendment or supplement to the Memorandum, the
Company shall furnish a copy thereof to the Initial Purchasers and counsel
to the Initial Purchasers and will not effect any such amendment or
supplement to which the Initial Purchasers shall reasonably object by
notice to the Company after a reasonable period to review, which shall not
in any case be longer than five business days after receipt of such copy;
provided, however, that the obligations of the Company pursuant to this
paragraph shall terminate on the earlier to occur of (i) the effective date
of a Registration Statement with respect to the securities filed pursuant
to the Registration Rights Agreement and (ii) the date upon which the
Initial Purchasers and their affiliates cease to hold Capital Securities
acquired as part of their initial distribution, but in any event (in the
case of this clause (ii)) not later than nine months from the Closing Time.
(c) If, at any time prior to completion of the distribution of the
Capital Securities by you to purchasers, any event shall occur or condition
exist as a result of which it is necessary, in the opinion of counsel for
you or counsel for the Company, to amend or supplement the Memorandum in
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order that the Memorandum 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 light of the circumstances
existing at the time it is delivered to a purchaser, or if it is necessary
to amend or supplement the Memorandum to comply with applicable law, to
promptly prepare such amendment or supplement as may be necessary to
correct such untrue statement or omission or so that the Memorandum, as so
amended or supplemented, will comply with applicable law and to furnish you
such number of copies as you may reasonably request; provided, however,
that the obligations of the Company and the Initial Purchasers pursuant to
this paragraph shall terminate on the earlier to occur of (i) the effective
date of a Registration Statement with respect to the securities filed
pursuant to the Registration Rights Agreement and (ii) the date upon which
the Initial Purchasers and their affiliates cease to hold Capital
Securities acquired as part of their initial distribution, but in any event
(in the case of this clause (ii)) not later than nine months from the
Closing Time.
(d) So long as the Capital Securities are outstanding and are
"Restricted Securities" within the meaning of Rule 144(a)(3) under the
Securities Act, to furnish to holders of the Capital Securities and
prospective purchasers of Capital Securities designated by such holders,
upon request of such holders or such prospective purchasers, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(e) Promptly from time to time to take such action as the Initial
Purchasers may reasonably request to qualify the Capital Securities, the
Guarantee Agreement and the Junior Subordinated Debentures for offering and
sale under the securities laws of such jurisdictions as the Initial
Purchasers may reasonably request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such United States
jurisdictions for as long as may be necessary to complete the distribution
of the Capital Securities; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation or as a dealer in securities
or to execute or file any consents to service of process under the laws of
any such state.
(f) Not to offer, sell, contract to sell or otherwise dispose of any
additional securities of the Trust or the Company substantially similar to
the Capital Securities or any securities convertible into or exchangeable
for or that represent the right to receive any such similar securities,
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without the consent (which consent shall not be unreasonably withheld) of
Xxxxxx Brothers Inc. during the period beginning from the date of this
Agreement and continuing to and including the earlier of (i) the
termination of trading restrictions on the Capital Securities, as
communicated to the Company by Xxxxxx Brothers Inc. and (ii) 90 days
following the Closing Date.
(g) To apply the net proceeds from the sale of the Capital Securities
being sold by the Trust as set forth in the Memorandum.
(h) Except following the effectiveness of the Registration Statement
(as defined in the Registration Rights Agreement), not to, and will cause
its affiliates not to, solicit any offer to buy or offer to sell the
Capital Securities by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities
Act) or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
(i) Not to, and will cause its affiliates not to, sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security
(as defined in the Securities Act) in a transaction that could be
integrated with the sale of the Capital Securities in a manner that would
require the registration under the Securities Act of the Capital
Securities.
(j) To take such steps as shall be necessary to ensure that neither
the Company, any subsidiary of the Company nor the Trust shall become an
"investment company" within the meaning of such term under the Investment
Company Act of 1940 and the rules and regulations of the Commission
thereunder.
6. Expenses. The Company agrees to pay (i) the costs incident to the
authorization, issuance, sale and delivery of the Capital Securities and any
taxes payable in that connection; (ii) the costs incident to the preparation and
printing of the Memorandum and any amendments or supplements thereto; (iii) the
costs of distributing the Memorandum and any amendments or supplements thereto;
(iv) the fees and expenses of qualifying the Capital Securities under the
securities laws of the several jurisdictions as provided in Section 5(f) and of
preparing, printing and distributing a Blue Sky Memorandum and a Legal
Investment Survey (including related fees and expenses of counsel to the
Company); (v) any fees incurred by the Company in connection with the rating of
the Capital Securities; (vi) all fees and expenses, if any, incurred in
connection with the admission of such Securities for trading in PORTAL; (vii)
the fees and expenses of the Property Trustee (as defined in the Declaration),
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the Guarantee Trustee and the Indenture Trustee; and (viii) all other costs and
expenses incident to the performance of the obligations of the Company and the
Trust.
7. Conditions to the Initial Purchasers' Obligations. The respective
obligations of the Initial Purchasers hereunder are subject to the accuracy,
when made and on the Closing Date, of the representations and warranties of the
Company and the Trust contained herein, to the performance by the Company and
the Trust of their respective obligations hereunder, and to each of the
following additional terms and conditions:
(a) No Initial Purchaser shall have discovered and disclosed to the
Company and the Trust on or prior to the Closing Date that the Memorandum
or any amendment or supplement thereto contains any untrue statement of a
fact which, in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
Initial Purchasers, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(b) Xxxxxxx Xxxx & Xxxxx LLP, counsel to the Company, shall have
furnished to the Initial Purchasers their written opinion, as counsel to
the Company, addressed to the Initial Purchasers and dated the Closing
Date, in form and substance satisfactory to the Initial Purchasers, to the
effect set forth in Exhibit A hereto.
(c) Xxxxxx X. Xxxxx, Executive Vice-President, General Counsel and
Secretary of the Company, shall have furnished to the Initial Purchasers
his written opinion addressed to the Initial Purchasers and dated the
Closing Date, in form and substance satisfactory to the Initial Purchasers,
to the effect set forth in Exhibit B hereto.
(d) Xxxxxxxx, Xxxxxx & Finger shall have furnished to the Initial
Purchasers their written opinion, on certain matters of Delaware law
relating to the validity of the Capital Securities, addressed to the
Initial Purchasers and dated the Closing Date, in form and substance
satisfactory to the Initial Purchasers, to the effect set forth in Exhibit
C hereto.
(e) You shall have received on the Closing Date a letter, dated the
date hereof and the Closing Date, as the case may be, in form and substance
satisfactory to you, from KPMG Peat Marwick LLP, independent public
accountants, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information, including the
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financial information contained or incorporated by reference in the
Memorandum as identified by you.
(f) The Company and the Trust shall have furnished to the Initial
Purchasers a certificate, dated the Closing Date, of the Chief Financial
Officer or Treasurer stating that:
(i) The representations, warranties and agreements of the Company
and the Trust in Section 1 are true and correct in all material
respects as of the Closing Date and the Company has complied with all
its agreements contained herein;
(ii) (A) The Company has not sustained since the date of the
latest quarterly financial statements included or incorporated by
reference in the Memorandum any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Memorandum or (B) since such date there has not
been any change in the capital stock of the Company or any change, or
any material development involving a prospective material change, in
or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company,
otherwise than as set forth or contemplated in the Memorandum; and
(iii) Such officer has carefully examined the Memorandum and, in
such officer's opinion (A) the Memorandum, as of its date, did not
include any untrue statement of a material fact and did not omit to
state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, and (B) since the date of the Memorandum no event has
occurred which should have been set forth in a supplement or amendment
to the Memorandum.
(g) (i) Subsequent to the respective dates as of which information is
given in the Memorandum there shall not have occurred any change, or any
development involving a prospective change, in or affecting the business,
properties, financial condition or results of operations of the Company or
its subsidiaries the effect of which is, in the reasonable judgment of the
Initial Purchasers, so material and adverse to the Company so as to make it
impracticable or inadvisable to proceed with the purchase of the Capital
Securities as contemplated by the Memorandum; and (ii) subsequent to the
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date hereof, (u) no public announcement shall have been given of any
intended or potential downgrading in the rating accorded the Capital
Securities and no downgrading of the Capital Securities shall have occurred
in the rating accorded by Xxxxx'x Investors Service, Inc., Standard &
Poor's Corporation or Duff & Xxxxxx, Inc., (v) trading of securities
generally on the New York Stock Exchange or the National Association of
Securities Dealers Automated Quotations System shall not have been
suspended or materially limited, (w) a general moratorium on commercial
banking activities in New York shall not have been declared by either
Federal or New York State authorities, (x) trading of any securities of the
Company shall not have been suspended on any exchange or in any
over-the-counter market, (y) there shall not have occurred any outbreak or
escalation of hostilities or national emergency the effect of which on the
financial markets of the United States is, in the judgment of a majority in
interest of the Initial Purchasers, such as to make it impracticable to
market the Capital Securities, and (z) there shall not have occurred such a
material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of a majority in interest of the Initial Purchasers, impracticable or
inadvisable to proceed with the offering or delivery of the Capital
Securities on the terms and in the manner contemplated in the Memorandum.
(h) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the Initial Purchasers,
shall have furnished to the Initial Purchasers their written opinion,
addressed to the Initial Purchasers and dated the Closing Date, in form and
substance satisfactory to the Initial Purchasers, to the effect set forth
in Exhibit D hereto.
(i) The Initial Purchasers shall have received on the date hereof the
Registration Rights Agreement executed by the Company and the Trust.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
for the Initial Purchasers.
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8. Indemnification and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each Initial
Purchaser and any person who controls such Initial Purchaser within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act from and against any
loss, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, such Initial Purchaser or any such
controlling person may incur under the Act or otherwise, insofar as such loss,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in the Memorandum, or
any amendment or supplement thereto, or arises out of or is based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as any such loss, expense, liability or claim arises out of or is
based upon any alleged untrue statement of a material fact contained therein in
conformity with information furnished in writing by such Initial Purchaser to
the Company or the Trust expressly for use in any of such documents or arises
out of or is based upon any alleged omission to state therein a material fact in
connection with such information required to be stated therein or necessary to
make such information not misleading. The Company's agreement to indemnify such
Initial Purchaser or any such controlling person as aforesaid is expressly
conditioned upon it being notified of the action in connection therewith brought
against such Initial Purchaser or such controlling person by letter or telegram
or other facsimile transmission addressed to the Company with reasonable
promptness after the first legal process which discloses the nature of the
liability or claim shall have been served upon such Initial Purchaser or such
controlling person (or after it shall have received notice of such service upon
any agent designated by it), but failure so to notify the Company shall not
relieve the Company from any liability which it may have to such Initial
Purchaser or controlling person otherwise than on account of the indemnity
agreement contained in this Section 8. The Company shall assume the defense of
any suit brought to enforce any such liability or claim, including the
employment of counsel satisfactory to such Initial Purchaser and the payment of
all expenses. Such Initial Purchaser or controlling person against whom such
suit is brought shall have the right to employ one separate counsel in any such
suit and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Initial Purchaser or controlling person
unless (i) the employment of such counsel has been specifically authorized by
the Company or (ii) the named parties to any such suit (including any impleaded
parties) include such Initial Purchaser or controlling person and the Company
and such Initial Purchaser or controlling person shall have been advised by such
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the Company, in which case
the Company shall not have the right to assume the defense of such action on
behalf of such Initial Purchaser or controlling person, it being understood,
however, that the Company shall not, in connection with any one such action or
15
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (and
any required local counsel) for such Initial Purchaser and controlling persons,
which firm (and local counsel, if any) shall be designated in writing by such
Initial Purchaser. The Company shall not be liable for any settlement of any
such action effected without its consent (which will not be unreasonably
withheld or delayed).
The Company agrees to notify each Initial Purchaser with reasonable
promptness of the commencement of any litigation or proceedings against the
Company or any of its officers or directors or the Trust or any of its Trustees
in connection with the issue and sale of the Capital Securities or with the
Memorandum.
(b) Each Initial Purchaser represents and warrants that the information
furnished in writing by such Initial Purchaser to the Company or the Trust
expressly for use with reference to such Initial Purchaser in the Memorandum
does not contain any untrue statement of a material fact and does not omit to
state a material fact in connection with such information required to be stated
in the Memorandum or necessary to make such information not misleading.
Each Initial Purchaser severally agrees to indemnify, defend and hold
harmless the Company and its directors and officers and the Trust and each
Trustee from and against any loss, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, the Company or
any such person may incur under the Act or otherwise, insofar as such loss,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in the Memorandum or
any amendment or supplement thereto which is in reliance on and in conformity
with information furnished in writing by such Initial Purchaser to the Company,
the Trust or each Trustee expressly for use with reference to such Initial
Purchaser, or arises out of or is based upon any omission or alleged omission to
state a material fact in connection with such information required to be stated
in any of such documents or necessary to make such information not misleading.
Each Initial Purchaser's agreement to indemnify the Company, the Trust and any
such person as aforesaid is expressly conditioned upon such Initial Purchaser
being notified of the action in connection therewith brought against the
Company, the Trust or any such person by letter, telegram, or facsimile
transmission addressed to it at its address furnished to the Company for the
purpose, with reasonable promptness after the first legal process which
discloses the nature of the liability or claim shall have been served upon the
Company, the Trust or any such person (or after the Company, the Trust or any
such person shall have received notice of such service on any agent designated
by the Company or any such person), but failure so to notify such Initial
16
Purchaser shall not relieve such Initial Purchaser from any liability which it
may have to the Company, the Trust or any such person otherwise than on account
of the indemnity agreement contained in this Section 8.
Such Initial Purchaser shall assume the defense of any suit brought to
enforce any such liability or claim, including the employment of counsel
satisfactory to the Company, the Trust or such other person and the payment of
all expenses. The Company, the Trust or such person against whom such suit is
brought shall have the right to employ separate counsel in any such suit and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of the Company, the Trust or such person unless (i) the
employment of such counsel has been specifically authorized by such Initial
Purchaser or (ii) the named parties to any suit (including any impleaded
parties) include the Company, the Trust or such person and such Initial
Purchaser, and the Company, the Trust or such person shall have been advised by
such counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to such Initial Purchaser,
in which case such Initial Purchaser shall not have the right to assume the
defense of such action on behalf of the Company, the Trust or such person, it
being understood, however, that the Initial Purchaser shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (and any required local counsel) for the Company, the
Trust and such person, which firm (and local counsel, if any) shall be
designated in writing by the Company. An Initial Purchaser shall not be liable
for any settlement of any such action effected without its consent (which will
not be unreasonably withheld or delayed).
(c) If the indemnification provided for in this Agreement is unavailable to
or insufficient to hold harmless an indemnified party under subsections (a) and
(b) above for any reason other than as specified therein in respect of any
losses, expenses, liabilities or claims referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, expenses, liabilities or claims (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Trust on the one hand and each Initial Purchaser on the other hand from the
offering of the Capital Securities to which such losses, expenses, liabilities
or claims relate or (ii) if the allocation provided in clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Trust on the one hand and of each Initial Purchaser
on the other in connection with the statements or omissions which resulted in
such losses, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
17
Trust on the one hand and each Initial Purchaser on the other shall be deemed to
be in the same proportion as the total net proceeds to the Trust from sales of
the Capital Securities bears to the aggregate commissions received by each
Initial Purchaser pursuant to Section 2 hereof. The relative fault of the
Company and the Trust on the one hand and of each Initial Purchaser on the other
shall be determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company and the Trust or by any Initial Purchaser and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages and liabilities referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any claim or action.
The Company and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Agreement were determined by pro rata
allocation (even if the Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Agreement, no Initial Purchaser shall be
required to contribute any amount in excess of the amount by which the total
price at which the Capital Securities sold and distributed by it exceeds the
amount of the damages which such Initial Purchaser has otherwise been required
to pay by reason of an untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of each
Initial Purchaser in this subsection (c) to contribute are several, in the same
proportion which the amount of the Capital Securities which are the subject of
the action and which were distributed to the public by such Initial Purchaser
pursuant to this Agreement bears to the total amount of such Capital Securities
sold and distributed to the public by the Initial Purchasers pursuant to this
Agreement, and not joint.
The obligations of the Company and any Initial Purchasers under this
Section 8 shall be in addition to any liability that each of them may otherwise
have.
9. Termination. The obligations of the Initial Purchasers hereunder may be
terminated by them by notice given to and received by the Company or the Trust
prior to delivery of and payment for the Capital Securities if, prior to that
time, any of the events described in Section 7(g) shall have occurred or if the
Initial Purchasers shall decline to purchase the Capital Securities for any
reason permitted under this Agreement.
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10. Reimbursement of Initial Purchasers' Expenses. If (a) the Trust shall
fail to tender the Capital Securities for delivery to the Initial Purchasers for
any reason, or (b) the Initial Purchasers shall decline to purchase the Capital
Securities for any reason permitted under this Agreement, the Company shall
reimburse the Initial Purchasers for the reasonable fees and expenses of their
counsel and for such other out-of-pocket expenses as shall have been incurred by
them in connection with this Agreement and the proposed purchase of the Capital
Securities, and upon demand the Company shall pay the full amount thereof to the
Initial Purchasers.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxx Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate Department
(Fax: 000-000-0000);
(b) if to the Company or the Trust shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in
the Memorandum, Attention: Executive Vice President and Chief Financial
Officer (Fax: 000-000-0000).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company and the Trust shall be entitled to act and
rely upon any request, consent, notice or agreement given or made on behalf of
the Initial Purchasers by Xxxxxx Brothers Inc.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the Initial Purchasers, the Company, the
Trust and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(x) the representations, warranties, indemnities and agreements of the Company
and the Trust contained in this Agreement shall also be deemed to be for the
benefit of the officers and employees of each Initial Purchaser and the person
or persons, if any, who control each Initial Purchaser within the meaning of
Section 15 of the Securities Act and (y) the indemnity agreement of the Initial
Purchasers contained in Section of this Agreement shall be deemed to be for the
benefit of directors, officers and employees of the Company and the Trust and
any person controlling the Company or the Trust within the meaning of Section 15
of the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
12, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
19
13. Survival. The respective indemnities, representations, warranties and
agreements of the Company, the Trust and the Initial Purchasers contained in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Capital Securities
and shall remain in full force and effect, regardless of any investigation made
by or on behalf of any of them or any person controlling any of them.
14. Definition of the Terms "Business Day" and "Subsidiary". For purposes
of this Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading and (b) "subsidiary" has the meaning set
forth in Rule 405 of the Rules and Regulations.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement among the Company, the
Trust and the Initial Purchasers, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
THE CIT GROUP HOLDINGS, INC.
By:_____________________________
CIT CAPITAL TRUST I
By:_____________________________
Regular Trustee
Accepted:
XXXXXX BROTHERS INC.
By:_____________________________
For itself and the several other Initial Purchasers named in
Schedule I hereto
SCHEDULE 1
Liquidation
Amount of
Initial Purchasers Capital Securities
------------------ ------------------
Xxxxxx Brothers Inc. $125,500,000
Chase Securities Inc. 41,500,000
Salomon Brothers Inc 41,500,000
UBS Securities LLC 41,500,000
==================
Total $250,000,000
EXHIBIT A
FORM OF OPINION OF
COMPANY COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 7(b)
(i) The Indenture, when duly authorized, executed and delivered by the
Indenture Trustee, will constitute a valid and legally binding obligation of the
Company, enforceable against the Company, in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and implied covenant of good faith and fair dealing.
(ii) The Junior Subordinated Debentures, when duly authenticated by the
Indenture Trustee and upon payment and delivery as described in the Purchase
Agreement, will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
(iii) The Guarantee Agreement, assuming due authorization, execution and
delivery by the Guarantee Trustee, will constitute a valid and legally binding
obligation of the Company, enforceable against the Company in accordance with
its terms subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(iv) The statements made in the Memorandum under the captions "Description
of Junior Subordinated Debentures", "The Trust", "Description of Capital
Securities", "Description of Guarantee" and "Relationship Among the Capital
Securities, the Junior Subordinated Debentures and the Guarantee", insofar as
such statements constitute a summary of legal matters, documents or legal
proceedings or refer to statements of regulation, law or legal conclusions, are
a fair summary of such legal matters, documents or legal proceedings and
statements and are accurate in all material respects.
(v) (A) The Trust will be characterized as a grantor trust for United
States federal income tax purposes taxable as a corporation;
A-1
(B) The Junior Subordinated Debentures will constitute indebtedness of
the Company; and
(C) Subject to the qualifications set forth therein, the statements
made in the Memorandum under the caption "Certain United States Federal
Income Tax Consequences" fairly present in all material respects the
principal United States federal income tax consequences of an investment in
the Securities;
(vi) The Trust is not a party to or otherwise bound by any agreement other
than those described in the Memorandum.
(vii) Neither the Company nor the Trust is required to be registered as an
"investment company" under the 1940 Act.
(viii) Assuming (a) the accuracy of the representations and warranties of
the Trust, the Company and of the Initial Purchasers set forth herein, (b) the
due performance by the Trust, the Company and by the Initial Purchasers of the
covenants and agreements set forth herein, (c) compliance by the Initial
Purchasers with the offering and transfer procedures and restrictions described
in the Memorandum, (d) the accuracy of the representations and warranties made
in accordance with the Purchase Agreement and Memorandum by purchasers to whom
the Initial Purchasers initially resell Capital Securities and (e) the
purchasers to whom the Initial Purchasers initially resell Capital Securities
receive a copy of the Memorandum prior to such resale, the offer, sale and
delivery of the Capital Securities to the Initial Purchasers in the manner
contemplated herein and in the Memorandum and the initial resale of the Capital
Securities by the Initial Purchasers in the manner contemplated herein and in
the Memorandum do not require registration under the Securities Act of 1933, as
amended (the "Act"). Such counsel need not express any opinion as to any
subsequent resale of the Capital Securities. On or before the date hereof, none
of the Indenture, the Declaration or the Guarantee is required to be qualified
under the Trust Indenture Act of 1939, as amended.
A-2
EXHIBIT B
FORM OF OPINION OF
COMPANY COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 7(c)
(i) The Company and each of its active subsidiaries have been duly
incorporated and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, are duly qualified to
do business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, and have all
power and authority necessary to own or hold their respective properties and
conduct the businesses in which they are engaged.
(ii) Each of the Purchase Agreement and the Registration Rights Agreement
has been duly authorized, executed and delivered by the Company and has been
duly executed and delivered by the Trust.
(iii) The Indenture has been duly authorized, executed, and delivered by
the Company.
(iv) The Junior Subordinated Debentures have been duly authorized, executed
and delivered by the Company.
(v) The Guarantee Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The Declaration has been duly authorized, executed and delivered by
the Company.
(vii) The execution, delivery and performance of the Purchase Agreement,
the Declaration, the Indenture, the Junior Subordinated Debentures and the
Guarantee Agreement (collectively, the "Transaction Documents") by the Company
and the Trust, as applicable, will not constitute a material breach of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
active subsidiaries is a party or by which the Company or any of its active
subsidiaries is bound or to which any of the property or assets of the Company
or any of its active subsidiaries is subject, nor will such actions result in
any material violation of the provisions of the charter or by-laws of the
Company or any of its active subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its active subsidiaries or any of their respective
properties or assets.
(viii) No consent, approval, authorization, order, registration or
qualification of any Federal governmental agency or body or any Delaware
governmental agency or body acting pursuant to the Delaware General Corporation
Law or any Federal court or any Delaware court acting pursuant to the Delaware
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General Corporation Law is required for the issue and sale by the Trust of the
Capital Securities, the issuance by the Company of the Junior Subordinated
Debentures, the issuance of the Guarantee Agreement by the Company and the
compliance by the Company and Trust with all of the provisions of the Purchase
Agreement, except for such consents approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Capital Securities and the
Guarantee Agreement by the Initial Purchasers and except that I express no
opinion on the requirement for the registration of the Capital Securities under
the Securities Act of 1933, as amended.
(ix) There is not pending or threatened any legal or governmental
proceeding required to be described in the Memorandum which is not described as
required.
I have participated in the preparation of the Memorandum and in conferences
with officers and other representatives of the Company, representatives of the
independent public accountants for the Company and with your representatives and
counsel at which the contents of the Memorandum and related matters were
discussed and, although I do not pass upon or assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Memorandum, based upon the foregoing, no facts have come to my attention that
have caused me to believe that the Memorandum (except for the financial
statements and schedules and statistical and other financial data included
therein or omitted therefrom, as to which we make no statement), as of the date
of the delivery of the Securities, contained an untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
B-2
EXHIBIT C
FORM OF OPINION OF XXXXXXXX, XXXXXX & FINGER
SPECIAL DELAWARE COUNSEL TO THE COMPANY AND
THE TRUST TO BE DELIVERED PURSUANT TO SECTION 7(d)
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Trust Act with the business
trust power and authority to own property and to conduct its business as
described in the Memorandum and to enter into and perform its obligations under
each of the Purchase Agreement, the Capital Securities, the Common Securities
and the Declaration; to such counsel's knowledge, the Trust is not a party to or
otherwise bound by any agreement other than those described in the Memorandum.
(ii) The Common Securities have been duly authorized by the Declaration
and, when issued and delivered by the Trust to the Company against payment
therefor as described in the Memorandum, will be validly issued and (subject to
the terms of the Declaration) fully paid undivided beneficial interests in the
assets of the Trust (such counsel may note that the Holders of Common Securities
will be subject to the withholding provisions of Section 10.4 of the
Declaration, will be required to make payment or provide indemnity or security
as set forth in the Declaration and will be liable for the debts and obligations
of the Trust to the extent provided in Section 9.1(b) of the Declaration); under
the Delaware Trust Act and the Declaration the issuance of the Common Securities
is not subject to preemptive or other similar rights.
(iii) The Capital Securities have been duly authorized by the Declaration
and, when issued and delivered against payment of the consideration as set forth
in the Purchase Agreement, the Capital Securities will be validly issued and
(subject to the terms of the Declaration) fully paid and non-assessable
undivided beneficial interests in the Trust, the Holders of the Capital
Securities will be entitled to the benefits of the Declaration (subject to the
limitations set forth in clause (v) below) and will be entitled to the same
limitation of personal liability under Delaware law as extended to stockholders
of private corporations for profit (such counsel may note that the Holders of
Capital Securities will be subject to the withholding provisions of Section 10.4
of the Declaration and will be required to make payment or provide indemnity or
security as set forth in the Declaration).
(iv) All necessary trust action has been taken to duly authorize the
execution and delivery by the Trust of the Purchase Agreement.
(v) Assuming the Declaration has been duly authorized by the Company and
has been duly executed and delivered by the Company and the Regular Trustees,
and assuming due authorization, execution and delivery of the Declaration by the
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Property Trustee and the Delaware Trustee, the Declaration constitutes a valid
and binding obligation of the Company and the Regular Trustees, enforceable
against the Company and the Regular Trustees in accordance with its terms,
except to the extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, receivership, liquidation, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and remedies, (ii) general principles of equity (regardless of
whether considered and applied in a proceeding in equity or at law), and (iii)
considerations of public policy and the effect of applicable law relating to
fiduciary duties.
(vi) The issuance and sale by the Trust of the Securities, the purchase by
the Trust of the Junior Subordinated Debentures, the execution, delivery and
performance by the Trust of the Purchase Agreement, the consummation by the
Trust of the transactions contemplated by the Purchase Agreement and compliance
by the Trust with its obligations thereunder will not violate (i) any of the
provisions of the Certificate of Trust or the Declaration or (ii) any applicable
Delaware law or administrative regulation.
(vii) Assuming that the Trust derives no income from or connected with
services provided within the State of Delaware and has no assets, activities
(other than having a Delaware Trustee as required by the Delaware Trust Act and
the filing of documents with the Secretary of State of Delaware) or employees in
the State of Delaware, no filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any Delaware court or
Delaware governmental authority or agency (other that as may be required under
the securities or blue sky laws of the state of Delaware, as to which such
counsel need express no opinion) is necessary or required in connection with the
due authorization, execution and delivery of the Purchase Agreement or the
offering, issuance, sale or delivery of the Capital Securities.
C-2
EXHIBIT D
FORM OF OPINION OF XXXXXXX XXXXXXX & XXXXXXXX
COUNSEL TO THE INITIAL PURCHASERS
TO BE DELIVERED PURSUANT TO SECTION 7(h)
(i) The Company has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of the State of Delaware. The
Trust has been duly created and is validly existing and in good standing as a
business trust under the Delaware Business Trust Act.
(ii) The Purchase Agreement has been duly authorized, executed and
delivered by each of the Company and the Trust.
(iii) The Registration Rights Agreement has been duly authorized, executed
and delivered by each of the Company and the Trust, and constitutes a valid and
legally binding instrument of each of the Company and the Trust enforceable
against each of the Company and the Trust in accordance with its terms.
(iv) The Declaration has been duly authorized, executed and delivered by
the Company and, assuming due authorization, execution and delivery thereof by
each of the Property Trustee and the Delaware Trustee, constitutes a valid and
legally binding obligation of the Company enforceable against the Company in
accordance with its terms.
(v) The Capital Securities to be sold by the Trust are validly issued
beneficial interests in the Trust entitled to the benefits provided by the
Declaration.
(vi) The Guarantee has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery thereof by the
Guarantee Trustee and upon payment for and delivery of the Capital Securities in
accordance with the Purchase Agreement, the Guarantee will constitute a valid
and legally binding obligation of the Company enforceable against the Company in
accordance with its terms.
(vii) The Indenture has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery thereof by the
Indenture Trustee, constitutes a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms.
(viii) The Junior Subordinated Debentures have been duly authorized,
executed and issued by the Company and, assuming due authentication thereof by
the Indenture Trustee and upon payment and delivery in accordance with the
Purchase Agreement, will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their terms.
(ix) The statements made in the Offering Memorandum under the captions
"Description of Capital Securities", "Description of Junior Subordinated
Debentures" and "Description of Guarantee," insofar as they purport to
D-1
constitute summaries of certain terms of documents referred to therein,
constitute accurate summaries of the terms of such documents in all material
respects.
(x) The Trust is not an "investment company" required to be registered
under the Investment Company Act of 1940.
(xi) No registration of the Capital Securities, the Guarantee or the Junior
Subordinated Debentures under the Securities Act of 1933, as amended, and no
qualification of the Declaration of Trust, the Guarantee or the Indenture under
the Trust Indenture Act of 1939, as amended, is required for the offer and sale
of the Capital Securities by the Company to the Initial Purchasers or the
initial reoffer and resale of the Capital Securities by the Initial Purchasers
solely in the manner contemplated by the Memorandum.
We have not independently verified the accuracy, completeness or fairness
of the statements made or included in the Memorandum or the documents
incorporated by reference therein (the "Exchange Act Documents") and take no
responsibility therefor, except as and to the extent set forth in paragraph (ix)
above. In the course of the preparation by the Company of the Memorandum
(excluding the Exchange Act Documents), we participated in conferences with
certain officers and employees of the Company, with representatives of KPMG Peat
Marwick LLP and with counsel to the Company. We did not prepare the Exchange Act
Documents or review such documents prior to their filing with the Commission.
Based upon our examination of the Memorandum and the Exchange Act Documents, our
investigations made in connection with the preparation of the Offering
Memorandum (excluding the Exchange Act Documents) and our participation in
conferences referred to above, we have no reason to believe that the Memorandum
(including the Exchange Act Documents) contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that we express no belief with respect to the
financial statements or other financial or statistical data contained or
incorporated by reference in the Memorandum or the Exchange Act Documents.
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