UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549 FORM 10-Q
|X| Quarterly Report Pursuant to Section 13 or 15(d) |_| Transition Report Pursuant to Section 13 or 15(d)
or of the Securities Exchange Act of 1934 of the Securities Exchange Act of 1934 For the quarterly period ended June 30, 2011 Commission File Number: 001-31369
CIT GROUP INC.
(Exact name of Registrant as specified in its charter) Delaware 65-1051192 (State or other jurisdiction of incorporation or organization) (IRS Employer Identification Number)
11 West 42nd Street New York, New York 10036 (Address of Registrant's principal executive offices) (Zip Code)
(212) 461-5200 (Registrant's telephone number) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes |X| No |_| Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes |X| No |_| Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. Large accelerated filer |X| Accelerated filer |_| Non-accelerated filer |_| Smaller reporting company |_|. Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes |_| No |X| Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13, or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court. Yes |X| No |_| As of July 29, 2011 there were 200,612,222 shares of the registrant's common stock outstanding. CONTENTS
Part One—Financial Information: ITEM 1. Consolidated Financial Statements 2 Consolidated Balance Sheets (Unaudited) 2 Consolidated Statements of Operation (Unaudited) 4 Consolidated Statement of Stockholders' Equity (Unaudited) 5 Consolidated Statements of Cash Flows (Unaudited) 6 Notes to Consolidated Financial Statements 7
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 43 and ITEM 3. Quantitative and Qualitative Disclosures about Market Risk 43 ITEM 4. Controls and Procedures 98
Part Two—Other Information: ITEM 1. Legal Proceedings 99 ITEM 1A Risk Factors 99 ITEM 2. Unregistered Sales of Equity Securities and Use of Proceeds 99 ITEM 5. Other Information 99 ITEM 6. Exhibits 100 Signatures 105 1 Part One—Financial Information ITEM 1. Consolidated Financial Statements
CIT GROUP INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (unaudited) (dollars in millions – except per share data) June 30, December 31,
2011 2010
Assets Cash and due from banks $ 818.2 $ 734.1 Interest bearing deposits, including restricted balances of $2,425.8 at June 30, 2011 and $2,553.8 at December 31, 2010(1) 6,537.5 10,469.9 Investment securities 2,983.3 328.5 Trading assets at fair value – derivatives 12.6 25.7 Assets held for sale(1) 1,863.5 1,218.5 Loans (see Note 5 for amounts pledged) 22,284.7 24,500.5 Allowance for loan losses (424.0) (416.2)
Total loans, net of allowance for loan losses(1) 21,860.7 24,084.3 Operating lease equipment, net (see Note 5 for amounts pledged)(1) 10,920.4 11,136.7 Unsecured counterparty receivable 528.9 534.5 Goodwill 264.5 277.4 Intangible assets, net 84.1 119.2 Other assets 2,135.9 2,029.4
Total Assets $ 48,009.6 $ 50,958.2
Liabilities Deposits $ 4,428.1 $ 4,536.2 Trading liabilities at fair value – derivatives 230.6 126.3 Credit balances of factoring clients 1,084.9 935.3 Other liabilities 2,432.0 2,466.9 Long-term borrowings, including $2,487.5 and $3,686.3 contractually due within twelve months at June 30, 2011 and December 31, 2010, respectively 30,891.1 33,979.8
Total Liabilities 39,066.7 42,044.5
Stockholders' Equity Common stock: $0.01 par value, 600,000,000 authorized Issued: 200,863,106 at June 30, 2011 and 200,690,938 at December 31, 2010 2.0 2.0 Outstanding: 200,579,734 at June 30, 2011 and 200,463,197 at December 31, 2010 Paid-in capital 8,447.4 8,434.1 Retained earnings 515.9 498.3 Accumulated other comprehensive income (12.3) (9.6) Treasury stock: 283,372 shares at June 30, 2011 and 227,741 at December 31, 2010, at cost (11.5) (8.8)
Total Common Stockholders' Equity 8,941.5 8,916.0 Noncontrolling minority interests 1.4 (2.3)
Total Equity 8,942.9 8,913.7
Total Liabilities and Equity $ 48,009.6 $ 50,958.2
2 (1) The following table presents information on assets and liabilities related to Variable Interest Entities (VIEs) that are consolidated by the Company. The difference between total VIE assets and liabilities represents the Company's interests in those entities, which were eliminated in consolidation. The assets of the consolidated VIEs will be used to settle the liabilities of those entities and, except for the Company's interest in the VIEs, are generally not available to the creditors of CIT or any affiliates of CIT. Assets Interest bearing deposits, restricted $ 875.7 $ 931.2 Assets held for sale 132.4 100.0 Total loans, net of allowance for loan losses 11,030.7 12,041.5 Operating lease equipment, net 2,974.7 2,900.0
Total Assets $ 15,013.5 $ 15,972.7
Liabilities Beneficial interests issued by consolidated VIEs (classified as long-term borrowings) $ 9,651.0 $ 10,764.7
Total Liabilities $ 9,651.0 $ 10,764.7
The accompanying notes are an integral part of these consolidated financial statements. 3 CIT GROUP INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS (unaudited) (dollars in millions – except per share data) Quarters Ended June 30, Six Months Ended June 30,
2011 2010(1) 2011 2010(1)
Interest income Interest and fees on loans $ 594.3 $ 1,016.5 $ 1,229.8 $ 2,113.9 Interest and dividends on investments 7.8 7.3 15.5 14.6
Interest income 602.1 1,023.8 1,245.3 2,128.5
Interest expense Interest on long-term borrowings (780.6) (789.2) (1,455.1) (1,599.8) Interest on deposits (25.1) (18.3) (49.5) (39.1)
Interest expense (805.7) (807.5) (1,504.6) (1,638.9)
Net interest revenue (203.6) 216.3 (259.3) 489.6 Provision for credit losses (84.7) (246.7) (208.1) (472.8)
Net interest revenue, after credit provision (288.3) (30.4) (467.4) 16.8
Other income Rental income on operating leases 417.9 417.9 831.2 843.7 Other 239.9 338.5 518.1 488.9
Total other income 657.8 756.4 1,349.3 1,332.6
Total revenue, net of interest expense and credit provision 369.5 726.0 881.9 1,349.4
Other expenses Depreciation on operating lease equipment (145.5) (178.1) (306.0) (350.8) Operating expenses (245.8) (277.8) (462.2) (539.5)
Total other expenses (391.3) (455.9) (768.2) (890.3)
Income before provision for income taxes (21.8) 270.1 113.7 459.1 Provision for income taxes (26.9) (88.2) (92.6) (131.6)
Net income before attribution of noncontrolling interests (48.7) 181.9 21.1 327.5 Net income attributable to noncontrolling interests, after tax 0.7 (0.3) (3.5) (1.3)
Net (loss) income $ (48.0) $ 181.6 $ 17.6 $ 326.2
Basic (loss) earnings per common share $ (0.24) $ 0.91 $ 0.09 $ 1.63 Diluted (loss) earnings per common share $ (0.24) $ 0.91 $ 0.09 $ 1.63 Average number of common shares (thousands) Basic 200,658 200,075 200,631 200,057 Diluted 200,658 200,644 200,893 200,359
(1) These restated balances were disclosed in Note 26 of the Company's Form 10-K for the year ended December 31, 2010.
The accompanying notes are an integral part of these consolidated financial statements. 4 CIT GROUP INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (unaudited) (dollars in millions) Accumulated
Other Noncontrolling Total
Common Paid-in Retained Comprehensive Treasury Interest in Stockholders'
Stock Capital Earnings Income / (Loss) Stock Subsidiaries Equity
December 31, 2010 $ 2.0 $ 8,434.1 $ 498.3 $ (9.6) $ (8.8) $ (2.3) $ 8,913.7
Net income 17.6 3.5 21.1 Foreign currency translation adjustments (9.0) (9.0) Change in fair values of derivatives qualifying as cash flow hedges 0.5 0.5 Unrealized gain on available for sale equity investments, net 5.9 5.9
Minimum pension liability adjustment (0.1) (0.1)
Total comprehensive income 18.4
Restricted stock and stock option expenses 13.3 (2.7) 10.6 Equity distribution 0.2 0.2
June 30, 2011 $ 2.0 $ 8,447.4 $ 515.9 $ (12.3) $ (11.5) $ 1.4 $ 8,942.9
December 31, 2009 $ 2.0 $ 8,398.0 $ – $ – $ – $ 1.4 $ 8,401.4
Adoption of new accounting pronouncement (18.4) (8.4) (26.8)
Net income 326.2 1.3 327.5 Foreign currency translation adjustments (11.4) (11.4) Change in fair values of derivatives qualifying as cash flow hedges (0.1) (0.1) Unrealized gain on available for sale equity investments, net 2.0 2.0 Minimum pension liability adjustment (0.2) (0.2)
Total comprehensive income 317.8
Restricted stock and stock option expenses 21.1 (4.0) 17.1
June 30, 2010(1) $ 2.0 $ 8,419.1 $ 307.8 $ (9.7) $ (4.0) $ (5.7) $ 8,709.5
(1) These restated balances were disclosed in Note 26 of the Company's Form 10-K for the year ended December 31, 2010.
The accompanying notes are an integral part of these consolidated financial statements. 5 CIT GROUP INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (unaudited) (dollars in millions) Six Months Ended June 30,
2011 2010(1)
Cash Flows From Operations Net income $ 17.6 $ 326.2 Adjustments to reconcile net income to net cash flows from operations: Provision for credit losses 208.1 472.8 Net depreciation, amortization and (accretion) 315.2 (423.4) Net gains on equipment, receivable and investment sales (253.7) (189.1) Provision for deferred income taxes 16.3 69.6 Decrease in finance receivables held for sale 5.7 5.6 Increase in other assets (84.7) (151.3) Increase in accrued liabilities and payables 31.1 67.7
Net cash flows provided by operations 255.6 178.1
Cash Flows From Investing Activities Loans extended and purchased (10,611.8) (9,100.5) Principal collections of loans and investments 11,708.3 13,770.5 Purchases of investment securities (12,633.4) – Proceeds from maturities of investment securities 9,956.2 – Proceeds from asset and receivable sales 1,681.4 2,415.6 Purchases of assets to be leased and other equipment (546.5) (616.6) Net (increase) decrease in short-term factoring receivables (26.4) 395.1 Change in restricted cash 128.0 258.7
Net cash flows (used in) provided by investing activities (344.2) 7,122.8
Cash Flows From Financing Activities Proceeds from the issuance of term debt 2,692.8 2,156.1 Repayments of term debt (6,275.6) (7,887.1) Net decrease in deposits (94.0) (490.8) Net repayments of non-recourse leveraged lease debt (9.6) (14.3) Collection of security deposits and maintenance funds 264.4 346.6 Repayment of security deposits and maintenance funds (209.7) (329.2)
Net cash flows used in financing activities (3,631.7) (6,218.7)
Decrease in cash and cash equivalents (3,720.3) 1,082.2 Unrestricted cash and cash equivalents, beginning of period 8,650.2 8,405.2
Unrestricted cash and cash equivalents, end of period $ 4,929.9 $ 9,487.4
Supplementary Cash Flow Disclosure Interest paid $ 1,077.6 $ 1,468.3 Federal, foreign, state and local income taxes paid, net 51.1 $ 11.1 Supplementary Non Cash Flow Disclosure Transfer of finance receivables from held for investment to held for sale $ 1,580.0 $ 1,597.8 Transfer of finance receivables from held for sale to held for investment $ 54.6 $ –
(1) These restated balances were disclosed in Note 26 of the Company's Form 10-K for the year ended December 31, 2010.
The accompanying notes are an integral part of these consolidated financial statements. 6 NOTE 1 — BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES CIT Group Inc. became a bank holding company ("BHC") in 2008 and has provided financial solutions to its clients since its formation in 1908. We provide financing and leasing capital principally for small businesses and middle market companies in a wide variety of industries and offer vendor, equipment, commercial and structured financing products, as well as factoring and management advisory services. CIT is the parent of CIT Bank, a state-chartered bank in Utah. We operate primarily in North America, with locations in Europe, Latin America and Asia. BASIS OF PRESENTATION Principles of Consolidation The accompanying consolidated financial statements include financial information related to CIT Group Inc., a Delaware Corporation, and its majority owned subsidiaries, including CIT Bank (collectively, "CIT" or the "Company"), and those variable interest entities ("VIEs") where the Company is the primary beneficiary. Assets held in an agency or fiduciary capacity are not included in the consolidated financial statements. In preparing the consolidated financial statements, all significant intercompany accounts and transactions have been eliminated. These consolidated financial statements, which have been prepared in accordance with the instructions to Form 10-Q, do not include all information and note disclosures required by generally accepted accounting principles in the United States of America ("GAAP"). The financial statements in this Form 10-Q have not been audited by an independent registered public accounting firm in accordance with standards of the Public Company Accounting Oversight Board (U.S.), but in the opinion of management include all adjustments, consisting only of normal recurring adjustments necessary for a fair presentation of CIT's financial position, results of operations and cash flows in accordance with GAAP. These consolidated financial statements should be read in conjunction with our Form 10-K. The consolidated financial statements include the effects of adopting Fresh Start Accounting ("FSA") upon emergence from bankruptcy on December 10, 2009, based on a convenience date of December 31, 2009 (the "Convenience Date"), as required by GAAP. Accretion and amortization of certain FSA adjustments began on January 1, 2010, and are included in the Statements of Operations and Cash Flows. See the Company's Annual Report on Form 10-K for the year ended December 31, 2010 ("Form 10-K"), "Notes 1 — Business and Summary of Significant Accounting Policies" and "Note 25 — Fresh Start Accounting", for additional FSA and reorganization information. The preparation of the consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect reported amounts and disclosures. Actual results could differ from those estimates and assumptions. Some of the more significant estimates include: fresh start accounting fair values; valuation of deferred tax assets; lease residual values and depreciation of operating lease equipment; and allowance for loan losses. Additionally, where applicable, the policies conform to accounting and reporting guidelines prescribed by bank regulatory authorities. Restatement The June 30, 2010 amounts have been restated to correct for errors found by the Company subsequent to the filing of its third quarter 2010 report on Form 10- Q related primarily to the application of FSA, the effects of which were disclosed in the Company's December 31, 2010 Form 10-K. The effect of the restatement increased net income for the quarter and six months ended June 30, 2010 by approximately $40 million and $87 million, respectively, to $182 million and $326 million, as compared to the amount originally reported in the June 30, 2010 Form 10-Q. Comparisons to the 2010 second quarter balances 7 are to the restated amounts. See the Company's December 31, 2010 Form 10-K, Note 26 — Selected Quarterly Financial Data (Unaudited), for further information. SIGNIFICANT ACCOUNTING POLICIES Investments During 2011, the Company utilized cash to invest in securities. Previously, investments were not considered significant and our Form 10-K did not include an investment policy. The following summarizes the Company's accounting policies relating to investment securities: • Debt and equity securities classified as "available-for-sale" (AFS) are carried at fair value with changes in fair value reported in accumulated other comprehensive income, net of applicable income taxes. Credit- related declines in fair value that are determined to be other than temporary are recorded in earnings immediately. Realized gains and losses on sales are included in Other income on a specific identification cost basis, and interest and dividend income on AFS securities is included in Interest and dividends on investments. • Debt securities classified as "held-to-maturity" represent securities that the Company has both the ability and the intent to hold until maturity, and are carried at amortized cost. For those securities that the Company does not intend to sell or expect to be required to sell, credit-related impairment is recognized in earnings, with the non-credit related impairment recorded in Accumulated Other Comprehensive Income ("AOCI"). Interest on such securities is included in
Interest and dividends on investments. • Equity investments without readily determinable fair values are carried at cost and periodically assessed for other-than-temporary impairment, with the cost basis reduced when impairment is deemed to be other-than-temporary.
NEW ACCOUNTING PRONOUNCEMENTS Disclosures about the Credit Quality of Finance Receivables and the Allowance for Credit Losses In July 2010, the FASB issued ASU 2010-20, Disclosures about the Credit Quality of Finance Receivables and the Allowance for Credit Losses, which provides guidance that requires enhanced disclosures surrounding the credit characteristics of the Company's loan portfolio. The Company adopted the required disclosures of this guidance in its Form 10-K, Notes 1, 2 and 3, which included enhanced qualitative accounting policies and quantitative disclosures on segment and class levels as well as credit characteristics. The new disclosures on the roll forward of the allowance for credit losses were effective from the first quarter 2011 Form 10-Q and are disclosed in Note 3. The adoption of this guidance affects CIT's disclosures regarding loans and allowance for loan losses, but does not affect its financial condition or results of operations. The FASB deferred the troubled debt restructuring (TDR) disclosure requirements that were part of this ASU to be concurrent with the effective date of recently issued guidance for identifying a TDR (discussed below), in the third quarter of 2011. Goodwill Impairment Test In December 2010, FASB issued ASU 2010-28, When to Perform Step 2 of the Goodwill Impairment Test for Reporting Units with Zero or Negative Carrying Amounts. Under ASC Topic 350, goodwill is tested for impairment at the reporting unit level utilizing a two-step approach. Step 1 compares the fair value of a reporting unit to its carrying value and if there is a shortfall, then Step 2 is completed. Step 2 measures the amount of impairment. This update requires that the Step 2 test be performed if the reporting unit has zero or negative carrying amount and qualitative factors exist indicating that it is more likely than not that a goodwill impairment exists. No additional disclosures are required by this update. This update is 8 effective for public companies beginning after December 15, 2010. At the date of adoption, a cumulative-effect adjustment to beginning retained earnings should be recorded if impairment of any reporting unit exists. The adoption of the guidance did not have a material impact on the Consolidated Balance Sheets or Statements of Operations. Troubled Debt Restructurings (TDRs) In April 2011, the FASB issued ASU 2011-02 to clarify the guidance for accounting for troubled debt restructurings (TDRs). The ASU clarifies the guidance on a creditor's evaluation of whether it has granted a concession and whether a debtor is experiencing financial difficulties, such as: • Creditors cannot assume that debt extensions at or above a borrower's original contractual rate do not constitute troubled debt restructurings. • If a borrower doesn't have access to funds at a market rate for debt with characteristics similar to the restructured debt, that may indicate that the creditor has granted a concession. • A borrower that is not currently in default may still be considered to be experiencing financial difficulty when payment default is considered probable in the foreseeable future. The guidance will be effective for the Company's third quarter 2011 Form 10-Q and is to be applied retrospectively to restructurings occurring on or after January 1, 2011. The Company is currently evaluating the potential impact of adopting the ASU. Comprehensive Income In June 2011, the FASB issued ASU 2011-05 to amend the guidance on the presentation of comprehensive income in ASC 220, Comprehensive Income that would require companies to present a single statement of comprehensive income or two consecutive statements. The proposed guidance would make the financial statement presentation of other comprehensive income more prominent by eliminating the alternative to present comprehensive income within the statement of equity. The ASU will be effective for annual periods beginning after December 15, 2011. The adoption of the guidance will not affect the Company's financial condition and will change the presentation of the statement of operations. NOTE 2 — LOANS The following table presents finance receivables by segment, based on obligor location: Finance Receivables (dollars in millions) June 30, 2011 December 31, 2010
Domestic Foreign Total Domestic Foreign Total
Corporate Finance $ 5,630.1 $ 1,793.8 $ 7,423.9 $ 6,482.4 $ 1,999.8 $ 8,482.2 Transportation Finance 1,024.7 331.6 1,356.3 1,098.8 290.1 1,388.9 Trade Finance 2,387.2 151.2 2,538.4 2,207.7 179.7 2,387.4 Vendor Finance 2,359.1 1,581.3 3,940.4 2,582.9 1,583.2 4,166.1 Consumer 7,009.4 16.3 7,025.7 8,058.8 17.1 8,075.9
Total $ 18,410.5 $ 3,874.2 $ 22,284.7 $ 20,430.6 $ 4,069.9 $ 24,500.5
9 The following table presents selected information related to components of the net investment in finance leases, which are included in total finance receivables: Components of Net Investment in Finance Leases
(dollars in millions) June 30, 2011 December 31, 2010
Unearned income $(1,228.8) $(1,356.3) Net unamortized deferred fees and costs 26.6 16.0 Total finance leases 4,227.7 4,522.1 Certain of the following tables present credit-related information at the "class" level in accordance with ASU 2010-20, Disclosures about the Credit Quality of Finance Receivables and the Allowance for Credit Losses. A class is generally a disaggregation of a portfolio segment. In determining the classes, CIT considered the finance receivable characteristics and methods it applies in monitoring and assessing credit risk and performance. Credit Quality Information The following table summarizes finance receivables by the risk ratings that bank regulatory agencies utilize to classify credit exposure and which are consistent with indicators the Company monitors. Risk ratings are reviewed on a regular and ongoing basis by Credit Risk Management and are adjusted as necessary for updated information affecting the borrowers' ability to fulfill their obligations. Loans rated as substandard, doubtful and loss are considered classified loans. Classified loans plus special mention loans are considered criticized loans. The definitions of these ratings are as follows: • Pass – finance receivables in this category do not meet the criteria for classification in one of the categories below. • Special mention – a special mention asset exhibits potential weaknesses that deserve management's close attention. If left uncorrected, these potential weaknesses may, at some future date, result in the deterioration of the repayment prospects. • Substandard – a substandard asset is inadequately protected by the current sound worth and paying capacity of the borrower, and is characterized by the distinct possibility that some loss will be sustained if the deficiencies are not corrected. • Doubtful – a doubtful asset has weaknesses that make collection or liquidation in full unlikely on the basis of current facts, conditions, and values. • Loss – a loss asset is considered uncollectible and of little or no value, Substantially all of the commercial Doubtful accounts were on non-accrual status at June 30, 2011 and December 31, 2010, and approximately twenty percent and one-third, respectively, of the Substandard accounts were on non-accrual status as of those dates. 10 Finance Receivables(1) – By Classification (dollars in millions)
Corporate Corporate Vendor Finance – Finance – Transportation Trade Vendor Finance Total Total June 30, 2011 Other SBL Finance Finance Finance US International Commercial Consumer Totals(1)
Grade:
Pass $ 4,313.2 $ 271.4 $ 727.4 $ 2,102.6 $ 2,034.5 $ 1,677.5 $ 11,126.6 $ 6,940.9 $ 18,067.5 Special mention 1,315.6 241.4 269.1 251.2 129.0 122.7 2,329.0 385.6 2,714.6 Substandard 981.8 175.6 357.9 157.3 142.9 82.9 1,898.4 397.4 2,295.8 Doubtful 347.7 153.4 2.7 27.3 47.7 55.9 634.7 1.1 635.8
Total(1) $ 6,958.3 $ 841.8 $ 1,357.1 $ 2,538.4 $ 2,354.1 $ 1,939.0 $ 15,988.7 $ 7,725.0 $ 23,713.7
Non-accrual loans $ 627.4 $ 177.0 $ 56.0 $ 73.4 $ 66.8 $ 60.4 $ 1,061.0 $ 0.8 $ 1,061.8
Corporate Corporate Vendor Finance – Finance – Transportation Trade Vendor Finance Total Total December 31, 2010 Other SBL Finance Finance Finance US International Commercial Consumer Totals(1)
Grade: Pass $ 4,843.4 $ 360.9 $ 652.3 $ 1,977.9 $ 2,198.5 $ 1,867.9 $ 11,900.9 $ 7,348.4 $ 19,249.3 Special mention 1,275.6 161.0 540.8 244.3 142.5 193.1 2,557.3 358.2 2,915.5 Substandard 1,205.1 211.8 192.4 123.0 180.7 135.4 2,048.4 614.4 2,662.8 Doubtful 460.0 183.6 3.4 42.2 55.4 60.8 805.4 1.6 807.0
Total(1) $ 7,784.1 $ 917.3 $ 1,388.9 $ 2,387.4 $ 2,577.1 $ 2,257.2 $ 17,312.0 $ 8,322.6 $ 25,634.6
Non-accrual loans $ 1,025.4 $ 214.4 $ 63.2 $ 164.4 $ 80.2 $ 67.7 $ 1,615.3 $ 0.7 $ 1,616.0
(1) Balances include $1,428.9 million and $1,134.1 million of loans in Assets Held for Sale at June 30, 2011 and December 31, 2010, respectively, which are measured at the lower of cost or fair value. ASU 2010-20 does not require inclusion of these finance receivables in the disclosures above. However, until they are disposed of, the Company manages the credit risk and collections of finance receivables held for sale consistently with its finance receivables held for investment, so that Company data are tracked and used for management purposes on an aggregated basis, as presented above. Other than finance receivables, Assets Held for Sale total on the balance sheet also include operating lease equipment held for sale, which are not included in the above table. Past Due and Non-accrual Loans The table that follows presents portfolio delinquency status, regardless of accrual/non-accrual classification: Finance Receivables(1) – Delinquency Status (dollars in millions) Greater Total
30–59 Days 60–89 Days Than 90 Finance
At June 30, 2011 Past Due Past Due Days Total Past Due Current Receivables(1)
Commercial Corporate Finance – Other $ 2.9 $ 12.7 $ 93.8 $ 109.4 $ 6,848.9 $ 6,958.3 Corporate Finance – SBL 11.0 8.0 35.0 54.0 787.8 841.8 Transportation Finance 5.2 3.7 1.2 10.1 1,347.0 1,357.1 Trade Finance 37.3 1.2 2.9 41.4 2,497.0 2,538.4 Vendor Finance – US 38.5 18.3 14.5 71.3 2,282.8 2,354.1 Vendor Finance – International 15.9 6.8 10.1 32.8 1,906.2 1,939.0 Consumer 257.0 128.3 399.9 785.2 6,939.8 7,725.0
Total $ 367.8 $ 179.0 $ 557.4 $ 1,104.2 $ 22,609.5 $ 23,713.7
Greater Total
30–59 Days 60–89 Days Than 90 Finance
At December 31, 2010 Past Due Past Due Days Total Past Due Current Receivables(1)
Commercial Corporate Finance – Other $ 43.2 $ 33.7 $ 149.2 $ 226.1 $ 7,558.0 $ 7,784.1 Corporate Finance – SBL 21.8 8.6 73.0 103.4 813.9 917.3 Transportation Finance 9.0 1.8 0.6 11.4 1,377.5 1,388.9 Trade Finance 35.0 1.8 1.3 38.1 2,349.3 2,387.4 Vendor Finance – US 59.4 23.2 20.3 102.9 2,474.2 2,577.1 Vendor Finance – International 20.2 11.5 10.6 42.3 2,214.9 2,257.2 Consumer 351.4 175.9 434.1 961.4 7,361.2 8,322.6
Total $ 540.0 $ 256.5 $ 689.1 $ 1,485.6 $ 24,149.0 $ 25,634.6
(1) Balances include $1,428.9 million and $1,134.1 million of loans in Assets Held for Sale at June 30, 2011 and December 30, 2010, respectively. Other than finance receivables, Assets Held for Sale total on the balance sheet also include operating lease equipment held for sale, which are not included in the above table.
11 The following table sets forth non-accrual loans and assets received in satisfaction of loans (repossessed assets). Non-accrual loans include loans greater than $500,000 that are individually evaluated and determined to be impaired, as well as loans less than $500,000 that are delinquent (generally for more than 90 days). Finance Receivables on Non-accrual Status (dollars in millions) June 30, 2011 December 31, 2010
Held for Held for Held for Held for
Investment Sale Total Investment Sale Total
Commercial Corporate Finance – Other $ 352.0 $ 275.4 $ 627.4 $ 969.3 $ 56.1 $ 1,025.4 Corporate Finance – SBL 160.3 16.7 177.0 214.4 – 214.4 Transportation Finance 56.0 – 56.0 63.2 – 63.2 Trade Finance 73.4 – 73.4 164.4 – 164.4 Vendor Finance – US 66.8 – 66.8 80.2 – 80.2 Vendor Finance – International 28.2 32.2 60.4 40.4 27.3 67.7 Consumer 0.2 0.6 0.8 0.4 0.3 0.7
Total non-accrual loans $ 736.9 $ 324.9 $ 1,061.8 $ 1,532.3 $ 83.7 $ 1,616.0
Repossessed assets 15.2 21.1
Total non-performing assets $ 1,077.0 $ 1,637.1
Government guaranteed accruing loans past due 90 days or more $ 399.0 $ 433.6 Other accruing loans past due 90 days or more 5.6 1.7
Total accruing loans past due 90 days or more $ 404.6 $ 435.3
Payments received on non-accrual financing receivables are generally applied against outstanding principal. Impaired Loans The Company's policy is to review for impairment finance receivables greater than $500,000 that are on non-accrual status. Consumer loans and small-ticket loan and lease receivables that have not been modified in a troubled debt restructuring, as well as short-term factoring receivables, are included (if appropriate) in the reported non-accrual balances above, but are excluded from the impaired finance receivables disclosure below as charge-offs are typically determined and recorded for such loans when they are more than 120 – 150 days past due. 12 The following table contains information about impaired finance receivables and the related allowance for credit losses, exclusive of finance receivables that were identified as impaired at the Convenience Date for which the Company is applying the income recognition and disclosure guidance in ASC 310-30 (Loans and Debt Securities Acquired with Deteriorated Credit Quality), which are disclosed further below in this note. Impaired Loans
At or for the Six Months Ended June 30, 2011 (dollars in millions) Unpaid Average Recorded Principal Related Recorded Investment Balance Allowance Investment
With no related allowance recorded: Commercial Corporate Finance – Other $ 78.5 $ 182.6 $ – $ 184.7 Corporate Finance – SBL 42.7 56.8 – 42.1 Transportation Finance 7.7 9.6 – 9.1 Trade Finance 53.6 70.9 – 89.8 Vendor Finance – US 16.7 30.1 – 20.0 Vendor Finance – International 12.3 31.6 – 14.5 With an allowance recorded: Commercial Corporate Finance – Other 103.5 118.7 35.1 122.7 Corporate Finance – SBL 47.4 51.3 11.7 49.2 Transportation Finance 49.0 54.6 12.0 52.9 Trade Finance 19.7 22.9 6.2 22.0
Total Commercial Impaired Loans(1) 431.1 629.1 65.0 607.0 Total Loans Impaired at Convenience date(2) 311.7 983.5 13.3 555.4
Total $ 742.8 $ 1,612.6 $ 78.3 $ 1,162.4
(1) Interest income recorded while the loans were impaired was not material for the quarter and six months ended June 30, 2011.
(2) Details of finance receivables that were identified as impaired at the Convenience date are presented under Loans and Debt Securities Acquired with Deteriorated Credit Quality.
Impaired Loans for the six months ended June 30, 2010 (dollars in millions) Average Recorded Investment $402.3 Unpaid
Recorded Principal Related
At December 31, 2010(1) Investment(1) Balance(1) Allowance
With no related allowance recorded: Commercial Corporate Finance – Other $ 235.3 $ 377.5 $ – Corporate Finance – SBL 50.7 72.2 – Transportation Finance 11.0 12.8 – Trade Finance 131.5 150.0 – Vendor Finance – US 26.5 51.5 – Vendor Finance – International 15.7 38.6 – With an allowance recorded: Commercial Corporate Finance – Other 148.8 161.8 43.3 Corporate Finance – SBL 51.9 54.5 12.7 Transportation Finance 56.4 57.6 10.0 Trade Finance 27.1 31.1 5.3
Total Commercial $ 754.9 $ 1,007.6 $ 71.3
(1) December 31, 2010 balances were conformed to current presentation and adjusted to exclude $81.2 million of recorded net investment and $161.1 million of unpaid principal related to loans classified in Assets Held for Sale.
13 Impairment occurs when, based on current information and events, it is probable that CIT will be unable to collect all amounts due according to contractual terms of the agreement. The Company has established review and monitoring procedures designed to identify, as early as possible, customers that are experiencing financial difficulty. We capture and analyze credit risk based on our internal probability of obligor default (PD) and loss given default (LGD) ratings. A PD rating is determined by evaluating borrower credit-worthiness, including analyzing credit history, financial condition, cash flow adequacy, financial performance and management quality. An LGD rating is predicated on transaction structure, collateral valuation and related guarantees or recourse. Further, related considerations in determining probability of collection include the following: • Instances where the primary source of payment is no longer sufficient to repay the loan in accordance with terms of the loan document; • Lack of current financial data related to the borrower or guarantor; • Delinquency status of the loan; • Borrowers experiencing problems, such as operating losses, marginal working capital, inadequate cash flow or business interruptions; • Loans secured by collateral that is not readily marketable or that is susceptible to deterioration in realizable value; and • Loans to borrowers in industries or countries experiencing economic instability. Impairment is measured as the shortfall between estimated value and recorded investment in the finance receivable. A specific allowance is recorded for the shortfall. In instances where the estimated value exceeds the recorded investment, no specific allowance is recorded. The estimated value is determined using fair value of collateral and other cash flows if the finance receivable is collateralized, or the present value of expected future cash flows discounted at the contract's effective interest rate. In instances when the Company measures impairment based on the present value of expected future cash flows, the change in present value is reported as bad-debt expense. The following summarizes key elements of the Company's policy regarding the determination of collateral fair value in the measurement of impairment: • "Orderly liquidation value" is the basis for collateral valuation; • Appraisals are updated annually or more often as market conditions warrant; or • Appraisal values are discounted in the determination of impairment if the: o appraisal does not reflect current market conditions; or o collateral consists of inventory, accounts receivable, or other forms of collateral, which may become difficult to locate, collect or subject to pilferage in a liquidation.
The Company periodically modifies the terms of finance receivables in response to borrowers' difficulties. Modifications that include a financial concession to the borrower are accounted for as troubled debt restructurings (TDRs). The net investment of TDRs at June 30, 2011 and December 31, 2010 was $354.1 million and $461.7 million, of which 92% and 95% were on non-accrual. Corporate Finance receivables accounted for 75% and 73% of the total TDRs. At June 30, 2011 and December 31, 2010, there were 14 $39.5 million and $19.6 million, respectively, of commitments to lend additional funds to borrowers whose loan terms have been modified in TDRs. Loans and Debt Securities Acquired with Deteriorated Credit Quality For purposes of this presentation, finance receivables that were identified as impaired at the Convenience Date are presented separately below. The Company is applying the income recognition and disclosure guidance in ASC 310-30 (Loans and Debt Securities Acquired with Deteriorated Credit Quality) to loans considered impaired under FSA at the time of emergence. The Company has no other loans reported under this guidance. June 30, 2011 December 31, 2010
Carrying Outstanding Related Carrying Outstanding Related
(dollars in millions) Amount balance (1) Allowance Amount balance (1) Allowance
Commercial $ 310.4 $ 974.2 $ 13.3 $ 795.6 $ 1,914.6 $ 54.9 Consumer 1.3 9.3 – 1.5 14.3 –
Totals $ 311.7 $ 983.5 $ 13.3 $ 797.1 $ 1,928.9 $ 54.9
Quarter ended June 30, 2011 Quarter ended June 30, 2010
(dollars in millions) Provision for Credit Losses Net Charge-offs Provision for Credit Losses Net Charge-offs
Commercial $ 1.1 $ 11.3 $ 32.3 $ 6.3 Consumer 0.4 0.4 0.2 0.2
Totals $ 1.5 $ 11.7 $ 32.5 $ 6.5
Six months ended June 30, 2011 Six months ended June 30, 2010
(dollars in millions) Provision for Credit Losses Net Charge-offs Provision for Credit Losses Net Charge-offs
Commercial $ 71.5 $ 113.1 $ 85.8 $ 54.1 Consumer 1.2 1.2 1.9 1.9
Totals $ 72.7 $ 114.3 $ 87.7 $ 56.0
(1) Represents the sum of contractual principal, interest and fees earned at the reporting date, calculated as pre-FSA net investment plus inception to date of charge-offs. The following table presents the changes to the accretable discount related to all loans accounted for under ASC 310-30 (loans acquired with deteriorated credit quality). Accretable discount activity for loans accounted for under ASC 310-30 at Emergence Date (dollars in millions): Quarter ended Six months ended
June 30, 2011 June 30, 2011
Accretable discount, beginning of the period $ 167.5 $ 207.2 Accretion (13.2) (25.5) Disposals/transfers(1) (18.9) (46.3)
Accretable discount, end of period $ 135.4 $ 135.4
(1) Amounts include transfers of non-accretable to accretable discounts, which were not material for the quarter and six months ended June 30, 2011.
15 NOTE 3 — ALLOWANCE FOR LOAN LOSSES The following table presents changes in the allowance for loan losses. Allowance for Loan Losses and Recorded Investment in Finance Receivables (dollars in millions) At or for periods ended June 30, (dollars in millions) 2011 2010
Corporate Transportation Trade Vendor Total
Finance Finance Finance Finance Commercial Consumer Total Total
Allowance for loan losses:
Quarter ended Beginning balance $ 263.8 $ 24.7 $ 29.6 $ 84.4 $ 402.5 $ – $ 402.5 $ 213.9 Provision for credit losses 61.3 4.7 4.0 13.8 83.8 0.9 84.7 246.7 Changes relating to sales, foreign currency translation, other (7.3) (0.3) (0.4) 0.5 (7.5) – (7.5) 2.6 Gross charge-offs(2) (53.3) (0.1) (4.2) (29.5) (87.1) (1.2) (88.3) (113.3) Recoveries 13.4 0.1 6.3 12.5 32.3 0.3 32.6 7.0
Allowance balance – end of period $ 277.9 $ 29.1 $ 35.3 $ 81.7 $ 424.0 $ – $ 424.0 $ 356.9
Six months ended Beginning balance $ 303.7 $ 23.7 $ 29.9 $ 58.9 $ 416.2 $ – $ 416.2 $ – Provision for credit losses 135.8 6.5 7.3 56.7 206.3 1.8 208.1 472.8 Change relating to new accounting pronouncement(1) – – – – – – – 68.6 Changes relating to sales, foreign currency translation, other (4.7) (0.4) 0.3 0.8 (4.0) – (4.0) (0.7) Gross charge-offs(2) (178.3) (0.8) (10.4) (55.8) (245.3) (2.4) (247.7) (193.0) Recoveries 21.4 0.1 8.2 21.1 50.8 0.6 51.4 9.2
Allowance balance – end of period $ 277.9 $ 29.1 $ 35.3 $ 81.7 $ 424.0 $ – $ 424.0 $ 356.9
Individually evaluated for impairment $ 46.8 $ 12.0 $ 6.2 $ – $ 65.0 $ – $ 65.0 Collectively evaluated for impairment 220.5 17.1 29.1 79.0 345.7 – 345.7 Loans acquired with deteriorated credit quality(3) 10.6 – – 2.7 13.3 – 13.3
Allowance balance – end of period $ 277.9 $ 29.1 $ 35.3 $ 81.7 $ 424.0 $ – $ 424.0
Reserve for unfunded lending commitments(4) $ 10.1 $ 1.2 $ 4.0 $ – $ 15.3 $ – $ 15.3
Finance receivables:
Individually evaluated for impairment $ 272.1 $ 56.7 $ 73.3 $ 29.0 $ 431.1 $ – $ 431.1 Collectively evaluated for impairment 6,876.7 1,299.6 2,465.1 3,876.1 14,517.5 7,024.4 21,541.9 Loans acquired with deteriorated credit quality(3) 275.1 – – 35.3 310.4 1.3 311.7
Ending balance $ 7,423.9 $ 1,356.3 $ 2,538.4 $ 3,940.4 $ 15,259.0 $ 7,025.7 $ 22,284.7
Percent of loans total loans 33.3% 6.1% 11.4% 17.7% 68.5% 31.5% 100.0%
(1) Reflects reserves associated with loans consolidated in accordance with 2010 adoption of accounting guidance on consolidation of variable interest entities.
(2) Gross charge-offs include $40 million that were charged directly to the specific allowance for loan losses for the June 30, 2011 quarter, of which $36 million related to Corporate Finance with the remainder primarily related to Trade Finance. Amounts for the six month period were $115 million, of which $106 million related to Corporate Finance and the remainder to Trade Finance.
(3) Represents loans considered impaired in FSA and are accounted for under the guidance in ASC 310-30 (Loans and Debt Securities Acquired with Deteriorated Credit Quality).
(4) Represents additional credit loss reserves for unfunded lending commitments and letters of credit recorded in Other Liabilities.
16 The allowance for loan losses balance prior to emergence was eliminated in FSA. The balance reflects estimated amounts for loans originated subsequent to the Emergence Date, loans that were held in VIEs that the Company has consolidated, and incremental amounts required on loans that were on the books at the Emergence Date. NOTE 4 — INVESTMENT SECURITIES At the end of the 2011 first quarter, the Company utilized cash to purchase U.S. Treasury securities. During the second quarter, the Company also purchased U.S. Government Agency securities. These investments mature in 91 days or less, and the carrying value approximates fair value. Certain U.S. Treasury and agency securities were purchased using $1.3 billion of restricted cash. The restricted cash utilized resided in a Cash Sweep account, for which investments in certain high-grade securities is a permitted use. Total investment securities include debt and equity securities. Debt instruments primarily consisted of U.S. Treasuries, U.S. agency bonds and foreign government bonds while equity securities include common stock and warrants. Investment Securities (dollars in millions) June 30, December 31,
2011 2010
Debt securities available-for-sale $ 2,700.1 $ – Equity securities available-for-sale 22.7 37.5 Debt securities held-to-maturity(1) 178.1 195.9 Non-marketable equity securities carried at cost(2) 82.4 95.1
Total investment securities $ 2,983.3 $ 328.5
(1) Recorded at amortized cost less impairment on securities that have credit-related impairment.
(2) Non-marketable equity securities are carried at cost and primarily consist of shares issued by customers during loan work out situations or as part of an original loan investment. Debt securities are recorded on the Consolidated Balance Sheet as of the trade date and classified based on management's intention on the date of purchase. Securities Available-for-Sale The following table presents amortized cost and fair value of securities available-for-sale (AFS) at June 30, 2011. December 31, 2010 balances were not significant and are not presented. (dollars in millions) June 30, 2011
Gross
Amortized Unrealized Fair
Cost Gains Value
Debt securities AFS U.S. Treasury $ 1,805.0 $ – $ 1,805.0 U.S. Government Agency Obligations 895.1 – 895.1
Total debt securities available for sale 2,700.1 – 2,700.1 Equity securities AFS 16.5 6.2 22.7
Total securities AFS $ 2,716.6 $ 6.2 $ 2,722.8
The Company conducts and documents periodic reviews of all securities with unrealized losses to evaluate whether the impairment is other than temporary. Any credit-related impairment on debt 17 securities that the Company does not plan to sell and is not likely to be required to sell is recognized in the Consolidated Statement of Income, with the non- credit-related impairment recognized in other comprehensive income. For other impaired debt securities, the entire impairment is recognized in the Consolidated Statement of Income. The following table presents interest and dividends on investments: (dollars in millions) Quarter Ended June 30, Six Months Ended June 30,
2011 2010 2011 2010
Interest $ 6.9 $ 6.3 $ 14.6 $ 11.9 Dividends 0.9 1.0 0.9 2.7
Total interest and dividends $ 7.8 $ 7.3 $ 15.5 $ 14.6
Gross realized investment gains for the quarter and six months ended June 30, 2011 were $12.3 million and $35.3 million respectively, and exclude losses from other-than-temporary impairment. Realized investment gains in 2010 were $3.7 million and $7.0 million for the quarter and six months period, respectively. Debt Securities Held-to-Maturity The carrying value and fair value of securities held-to-maturity (HTM) at June 30, 2011 and December 31, 2010 were as follows: (dollars in millions) Gross
Carrying unrecognized Fair
value gains value
June 30, 2011 U.S. Treasury and federal agency securities U.S. Treasury Agency obligations $ 105.2 $ 0.8 $ 106.0 Mortgage-backed securities U.S. government and government-sponsored agency guaranteed 53.6 1.9 55.5 State and municipal 0.4 – 0.4 Foreign government 18.9 – 18.9
Total debt securities held-to-maturity $ 178.1 $ 2.7 $ 180.8
December 31, 2010 U.S. Treasury and federal agency securities U.S. Treasury Agency obligations $ 119.8 $ 0.7 $ 120.5 Mortgage-backed securities U.S. government and government-sponsored agency guaranteed 56.9 1.0 57.9 State and municipal 0.4 – 0.4 Foreign government 18.8 – 18.8
Total debt securities held-to-maturity $ 195.9 $ 1.7 197.6
18 The following table presents the amortized cost and fair value of debt securities HTM by contractual maturity dates: June 30, 2011 December 31, 2010
Amortized Fair Amortized Fair
(dollars in millions) Cost Value Cost Value
Mortgage-backed securities(1) After 10 years(2) $ 53.6 $ 55.5 $ 56.9 $ 57.9
Total 53.6 55.5 56.9 57.9
U.S. Treasury and federal agencies After 1 but within 5 years 105.2 106.0 119.8 120.5
Total 105.2 106.0 119.8 120.5
State and municipal After 1 but within 5 years 0.3 0.3 0.2 0.2 After 5 but within 10 years 0.1 0.1 0.2 0.2
Total 0.4 0.4 0.4 0.4
Foreign government Due within 1 year 18.9 18.9 18.8 18.8
Total 18.9 18.9 18.8 18.8
Total debt securities HTM $ 178.1 $ 180.8 $ 195.9 $ 197.6
(1) Includes mortgage-backed securities of U.S. federal agencies.
(2) Investments with no stated maturities are included as contractual maturities of greater than 10 years. Actual maturities may differ due to call or prepayment rights. Other-Than-Temporary Impairments Recognition and Measurement of Other-Than-Temporary Impairments (OTTI) OTTI credit-related impairments on equity securities recognized in earnings totaled $1.3 million for the quarter and $7.4 million for the six months ended June 30, 2011, respectively. The 2010 impairment charges for the comparable periods were not significant. Impairment amounts in accumulated other comprehensive income were not significant at June 30, 2011 and December 31, 2010. Evaluating Investments for OTTI The Company conducts and documents periodic reviews of all securities with unrealized losses to evaluate whether the impairment is other than temporary. The Company accounts for investment impairments in accordance with ASC 320-10-35-34, Investments—Debt and Equity Securities: Recognition of an Other-Than-Temporary Impairment. Under the guidance for debt securities, OTTI is recognized in earnings for debt securities that the Company has an intent to sell or that the Company believes it is more-likely-than-not that it will be required to sell prior to recovery of the amortized cost basis. For those securities that the Company does not intend to sell or expect to be required to sell, credit-related impairment is recognized in earnings, while the non-credit related impairment recorded in AOCI. An unrealized loss exists when the current fair value of an individual security is less than its amortized cost basis. Unrealized losses that are determined to be temporary in nature are recorded, net of tax, in AOCI for AFS securities, while such losses related to HTM securities are not recorded, as these investments are carried at their amortized cost. 19 Amortized cost is defined as the original purchase cost, plus or minus any accretion or amortization of a purchase discount or premium. Regardless of the classification of the securities as AFS or HTM, the Company has assessed each investment for impairment. Factors considered in determining whether a loss is temporary include: • the length of time and the extent to which fair value has been below cost; • the severity of the impairment; • the cause of the impairment and the financial condition and near-term prospects of the issuer; • activity in the market of the issuer that may indicate adverse credit conditions; and • the Company's ability and intent to hold the investment for a period of time sufficient to allow for any anticipated recovery. The Company's review for impairment generally includes: • identification and evaluation of investments that have indications of possible impairment; • analysis of individual investments that have fair values less than amortized cost, including consideration of the length of time the investment has been in an unrealized loss position and the expected recovery period; • discussion of evidential matter, including an evaluation of factors or triggers that could cause individual investments to qualify as having other-than- temporary impairment and those that would not support other-than-temporary impairment; and • documentation of the results of these analyses, as required under business policies. For equity securities, management considers the various factors described above, including its intent and ability to hold the equity security for a period of time sufficient for recovery to cost. Where management lacks that intent or ability to hold the equity security, the security's decline in fair value is deemed to be other than temporary and is recorded in earnings. AFS equity securities deemed other-than-temporarily impaired are written down to fair value, with the full difference between fair value and cost recognized in earnings. NOTE 5 — LONG-TERM BORROWINGS The following table presents outstanding long-term borrowings, net of FSA. December 31, June 30, 2011 2010
Long-term Borrowings(1) CIT Group
(dollars in millions) Inc. Subsidiaries Total Total
Secured borrowings $ – $ 9,858.8 $ 9,858.8 $ 10,965.8 First lien facility 197.9 2,841.3 3,039.2 3,042.6 Series A Notes – 7.00% 7,939.8 – 7,939.8 19,037.9 Series B Notes – 10.25% – – – 765.8 Series C Notes – 7.00% 7,892.0 – 7,892.0 – Series C Notes – other 2,000.0 – 2,000.0 – Other debt 84.6 76.7 161.3 167.7
Total debt $ 18,114.3 $ 12,776.8 $ 30,891.1 $ 33,979.8
(1) The presented rates are contractual and do not reflect the impact of FSA. Rates associated with the Series C – other are discussed further below.
20 Secured Borrowings Set forth below are borrowings and pledged assets primarily owned by consolidated variable interest entities. Creditors of these entities received ownership and/or security interests in the assets. These entities are intended to be bankruptcy remote so that such assets are not available to creditors of CIT or any affiliates of CIT. These transactions do not meet accounting requirements for sales treatment and are recorded as secured borrowings. Except as otherwise noted, pledged assets listed below are not included in the collateral available to lenders under the First Lien Facility or the Series A or C Notes described below. Secured Borrowings and Pledged Asset Summary (dollars in millions) June 30, 2011 December 31, 2010
Secured Assets Secured Assets
Borrowing Pledged Borrowing Pledged
Education trusts and conduits (student loans) $ 4,006.8 $ 5,318.0 $ 4,184.4 $ 5,558.8 GSI Facility borrowings(1) 1,067.8 1,755.1 1,624.6 2,349.5 Trade Finance 382.1 1,550.5 504.9 1,479.6 Corporate Finance (SBL) 271.9 297.2 258.0 283.6 Other equipment secured facilities(2) 1,952.3 2,501.3 2,235.0 2,704.4
Subtotal – Finance Receivables 7,680.9 11,422.1 8,806.9 12,375.9
Transportation Finance – Aircraft(3) 1,413.8 1,646.6 1,315.1 1,531.0 Transportation Finance – Rail 146.6 143.1 148.9 146.2 GSI Facility borrowings (Aircraft) 488.2 1,106.8 519.8 1,119.3 Other structures 77.9 100.7 99.8 126.2
Subtotal – Equipment under operating leases 2,126.5 2,997.2 2,083.6 2,922.7
FHLB borrowings (Consumer)(4) 51.4 105.3 75.3 119.8
Total $ 9,858.8 $ 14,524.6 $ 10,965.8 $ 15,418.4
(1) At June 30, 2011 borrowings are secured by $1.0 billion of corporate finance receivables, $0.6 billion of student loans and $0.1 billion of small business lending loans, of which $102.6 million were classified as Assets Held for sale at June 30, 2011.
(2) Includes facilities secured by equipment primarily in Vendor Finance and Corporate Finance and the associated secured debt.
(3) Secured financing facilities for the purchase of aircraft.
(4) Collateralized with Government Debentures and Certificates of Deposit. Variable Interest Entities The Company utilizes Variable Interest Entities ("VIEs") in the ordinary course of business to support its own and its customers' financing needs. The most significant types of VIEs that CIT utilizes are on balance sheet' secured financings of pools of leases and loans originated by the Company. The Company originates pools of assets and sells these to special purpose entities which, in turn, issue debt securities backed by the asset pools or sell individual interests in the assets to investors. CIT retains the servicing rights and participates in certain cash flows. These VIEs are typically organized as trusts or limited liability companies, and are intended to be bankruptcy remote, from a legal standpoint. The main risks inherent in these secured borrowing structures are: deterioration in the credit performance of the vehicle's underlying asset portfolio, potential timing mismatches between the cash flows of the underlying assets and the repayment obligations of the secured borrowing, and risk associated with the servicing of the underlying assets. Investors usually have recourse to the assets in the VIEs and typically benefit from other credit enhancements, such as: (1) a reserve or cash collateral account which requires the Company to deposit cash in an account, which will first be used to cover any defaulted obligor payments, (2) over- 21 collateralization in the form of excess assets in the VIE, (3) subordination, whereby the Company retains a subordinate position in the secured borrowing which would absorb losses due to defaulted obligor payments before the senior certificate holders. The VIE may also enter into derivative contracts in order to convert yield or currency of the underlying assets to match the needs of the VIE investors or to limit or change the risk of the VIE. With respect to events or circumstances that could expose CIT to a loss, as these are accounted for as on balance sheet secured financings, the Company records an allowance for loan losses for the credit risks associated with the underlying leases and loans. As these are secured borrowings, CIT has an obligation to pay the debt in accordance with the terms of the underlying agreements. Generally, third-party investors in the obligations of the consolidated VIE's have legal recourse only to the assets of the VIEs and do not have recourse to the Company beyond certain specific provisions that are customary for secured financing transactions, such as asset repurchase obligations for breaches of representations and warranties. In addition, the assets are generally restricted only to pay such liabilities. First Lien Facility In August 2010, CIT amended its existing first lien credit facility agreements (the "First Lien Facility") and refinanced the remaining principal balance. The First Lien Facility had an outstanding balance of $3 billion at June 30, 2011 that matures in August 2015. This facility carries an interest rate of LIBOR + 4.50% with a 1.75% LIBOR floor. The First Lien Facility is generally secured by a first lien on substantially all U.S. assets that are not otherwise pledged to secure the borrowings of special purpose entities as described above under "Secured Borrowings," 65% of the voting shares and 100% of the non-voting shares of certain foreign subsidiaries and between 44% and 65% of the equity interest or capital stock in certain other non-U.S., non-regulated subsidiaries. The First Lien Facility is subject to a collateral coverage covenant (based on CIT's book value in accordance with GAAP) of 2.5x the outstanding loan balance, tested quarterly and upon certain transfers, dispositions or releases of collateral. The First Lien Facility also contains a number of additional covenants, some of which do not impose restrictions on the Company if CIT continues to maintain a collateral coverage ratio of 2.75x or greater. In July 2011, CIT redeemed $500 million of the First Lien Facility. The net impact of the acceleration of deferred debt costs and the amortization of the related FSA premium will increase third quarter interest expense by approximately $15 million. Series A and Series C Notes In March 2011, the Company issued $2 billion of new Series C Second-Priority Secured Notes, consisting of $1.3 billion of three-year 5.25% fixed rate notes and $700 million of seven-year 6.625% fixed rate notes. The covenants in the new Series C Notes are materially less restrictive than those in the outstanding Series A Notes, and more consistent with covenants in investment grade-rated bonds. The proceeds of the transaction were used, in conjunction with available cash, to redeem the $2.5 billion of Series A Notes in May 2011 discussed below. The Series A Notes and Series C Notes are generally secured by second-priority security interests in all the assets securing the First Lien Facility. The 2014 Series A Notes Indentures limit the ability of the Company and the Company's restricted subsidiaries to make certain payments or investments, incur indebtedness (including guarantees), issue preferred stock, incur liens, enter into sale and leaseback transactions, pay dividends, sell assets, and enter into transactions with affiliates. The 2015-2017 Series A Notes and Series C Notes Indentures limit the Company's ability to create liens, merge or consolidate, or sell, transfer, lease or dispose of all or substantially all of its assets. Under the terms of the Series A Notes, the Company is required to use certain cash collections to repay the First Lien Facility and Series A Notes on an accelerated basis as part of the Cash Sweep; there is no such requirement under the Series C Notes. 22 The guarantees and collateral for the Series C Notes will be released upon the Series C Notes receiving an investment grade rating from each of Moody's and S&P after giving effect to the release. In addition, the guarantees and/or collateral for the Series C Notes will be automatically released if the same guarantees and/or collateral for the Series A Notes are released at the same time or if the Series A Notes have been paid off in full. In the event of a Change of Control as defined in the Series A Indentures, holders of the Series A Notes will have the right to require the Company, as applicable, to repurchase all or a portion of the Series A Notes at a purchase price equal to 101% of the principal amount, plus accrued and unpaid interest to the date of such repurchase. Upon a Change of Control Triggering Event as defined in the Series C Indentures, holders of the Series C Notes will have the right to require the Company, as applicable, to repurchase all or a portion of the Series C Notes at a purchase price equal to 101% of the principal amount, plus accrued and unpaid interest to the date of such repurchase. On May 2, 2011, the Company redeemed $2.5 billion of 7% Series A Notes at a redemption price of 102% of the aggregate principal amount. This redemption included approximately $1.1 billion principal amount of remaining 2013 Series A Notes and approximately $1.4 billion principal amount of the 2014 Series A Notes. The acceleration of FSA amortization on these Notes increased second quarter interest expense by $113 million, approximately $66 million for the 2013 maturities and $47 million for the 2014 maturities. During the 2011 first quarter, we redeemed $1.0 billion of the 7% Series A Notes due in 2013 at a redemption price of 102% of the aggregate principal amount redeemed. The acceleration of FSA amortization on the Series A Notes was $25 million and resulted in an increase to interest expense. In June 2011, we completed an Exchange Offer and Consent Solicitation for outstanding 7% Series A Second-Priority Secured Notes, other than the Series A Notes that mature in 2014. In this transaction, the Company received the requisite consents to adopt proposed amendments to the indenture of Series A notes that mature in 2015, 2016 and 2017. At the Offer Expiration, tenders with consents or separate consents were received from holders of approximately $10.9 billion in aggregate principal amount of Series A Notes, made up of $8.76 billion (pre-FSA) Series A Notes tendered and accepted for exchange, and $2.17 billion Series A Notes separately consented, including a majority of each maturity of these Series A Notes. The Series C Notes with an aggregate principal amount of $8.76 billion (pre-FSA), which have the same interest rate and interest payment dates but mature one business day later than the Series A Notes for which they were exchanged, were issued in exchange for the Series A Notes tendered and accepted. Consents were solicited to replace the covenants and events of default in the Series A Notes indenture with the same covenants and events of default as those in the indenture that govern the existing 5.250% Series C Second-Priority Secured Notes due 2014 and 6.625% Series C Second-Priority Secured Notes due 2018, except that the Cash Sweep covenant was retained in the Series A Notes indenture as amended. The covenants in the Series C Notes are materially less restrictive than those in the Series A Notes and are more consistent with covenants of investment-grade rated bonds. Approximately $27 million of consent fees were paid to Series A Note holders that delivered consents and were capitalized and will be amortized as an adjustment of interest expense over the life of the Series C Notes issued in exchange. 23 Summarized Financial Information of Subsidiaries In accordance with the Series A Notes Indenture, the following tables present two mutually exclusive sets of condensed consolidating financial statements, reflecting the following: • The first set of condensed consolidated financial statements includes entities that are considered guarantors or non-guarantors. Guarantor entities are those that have guaranteed the unregistered debt under the First Lien Facility and Series A Notes (and Series B for 2010 financial information). Non- guarantors are all other entities including those which may have pledged assets but did not guarantee the debt. • The second set reflects both restricted and unrestricted subsidiaries. Unrestricted subsidiaries include regulated entities such as CIT Bank, joint ventures, special purpose entities and entities deemed immaterial. Restricted entities include all other subsidiaries.
CONDENSED CONSOLIDATING BALANCE SHEETS (dollars in millions) Non Guarantor Entities
CIT Other Non
Group Guarantor Pledged Guarantor Consolidated
Inc. Entities Entities Entities Eliminations Total
June 30, 2011 ASSETS: Net loans $ – $ 4,393.1 $ 2,179.9 $ 15,809.6 $ (521.9) $ 21,860.7 Operating lease equipment, net – 4,694.7 4,554.9 1,708.3 (37.5) 10,920.4 Assets held for sale 7.9 542.0 238.2 1,075.7 (0.3) 1,863.5 Cash and deposits with banks 1,412.6 1,595.0 1,726.7 2,682.7 (61.3) 7,355.7 Investment securities 1,395.1 1,379.8 6.7 383.6 (181.9) 2,983.3 Other assets 32,262.7 19,884.3 4,350.2 3,402.6 (56,873.8) 3,026.0
Total Assets $ 35,078.3 $ 32,488.9 $ 13,056.6 $ 25,062.5 $ (57,676.7) $ 48,009.6
LIABILITIES AND EQUITY: Long-term borrowings, including deposits $ 18,114.3 $ 2,861.8 $ 1,267.5 $ 13,346.0 $ (270.4) $ 35,319.2 Credit balances of factoring clients – 1,283.8 – 2.9 (201.8) 1,084.9 Other liabilities 8,022.5 (998.9) 4,547.4 (7,555.1) (1,353.3) 2,662.6
Total Liabilities 26,136.8 3,146.7 5,814.9 5,793.8 (1,825.5) 39,066.7
Total Stockholders' Equity 8,941.5 29,342.2 7,241.7 19,268.3 (55,852.2) 8,941.5 Noncontrolling minority interests – – – 0.4 1.0 1.4
Total Equity 8,941.5 29,342.2 7,241.7 19,268.7 (55,851.2) 8,942.9
Total Liabilities and Equity $ 35,078.3 $ 32,488.9 $ 13,056.6 $ 25,062.5 $ (57,676.7) $ 48,009.6
December 31, 2010(*) ASSETS: Net loans $ – $ 5,249.2 $ 2,388.5 $ 16,762.7 $ (316.1) $ 24,084.3 Operating lease equipment, net – 4,421.8 4,847.9 1,904.6 (37.6) 11,136.7 Assets held for sale – 340.2 293.5 584.8 – 1,218.5 Cash and deposits with banks 2,725.6 4,404.8 1,176.1 2,936.3 (38.8) 11,204.0 Investment securities – 100.8 7.3 403.5 (183.1) 328.5 Other assets 31,047.4 18,524.6 4,598.1 2,816.1 (54,000.0) 2,986.2
Total Assets $ 33,773.0 $ 33,041.4 $ 13,311.4 $ 25,408.0 $ (54,575.6) $ 50,958.2
LIABILITIES AND EQUITY: Long-term borrowings, including deposits $ 19,322.0 $ 2,866.2 $ 2,083.0 $ 14,497.0 $ (252.2) $ 38,516.0 Credit balances of factoring clients – 926.1 – 9.2 – 935.3 Other liabilities 5,535.0 850.9 4,451.1 (7,908.3) (335.5) 2,593.2
Total Liabilities 24,857.0 4,643.2 6,534.1 6,597.9 (587.7) 42,044.5
Total Stockholders' Equity 8,916.0 28,398.2 6,776.9 18,809.8 (53,984.9) 8,916.0 Noncontrolling minority interests – – 0.4 0.3 (3.0) (2.3)
Total Equity 8,916.0 28,398.2 6,777.3 18,810.1 (53,987.9) 8,913.7
Total Liabilities and Equity $ 33,773.0 $ 33,041.4 $ 13,311.4 $ 25,408.0 $ (54,575.6) $ 50,958.2
(*) 2010 data has been conformed to the current quarter presentation.
24 CONSOLIDATING STATEMENTS OF OPERATION (dollars in millions) Non Guarantor Entities
CIT Other Non
Group Guarantor Pledged Guarantor Consolidated
Inc. Entities Entities Entities Eliminations Total
Six Months Ended June 30, 2011 Interest income $ 1.8 $ 469.6 $ 181.7 $ 596.8 $ (4.6) $ 1,245.3 Interest expense (1,054.3) (143.1) (116.0) (199.0) 7.8 (1,504.6)
Net interest revenue (1,052.5) 326.5 65.7 397.8 3.2 (259.3) Provision for credit losses (6.7) (42.5) (86.3) (72.6) – (208.1)
Net interest revenue, after credit provision (1,059.2) 284.0 (20.6) 325.2 3.2 (467.4) Equity in net income of subsidiaries 1,071.3 609.1 216.5 56.7 (1,953.6) – Other Income Rental income on operating leases – 289.7 359.2 182.3 – 831.2 Other (125.5) 336.0 91.8 227.1 (11.3) 518.1
Total other income (125.5) 625.7 451.0 409.4 (11.3) 1,349.3
Total revenue, net of interest expense and credit provision (113.4) 1,518.8 646.9 791.3 (1,961.7) 881.9
Other Expenses Depreciation on operating lease equipment – (100.8) (123.2) (82.0) – (306.0) Operating expenses (11.0) (277.8) (76.7) (110.6) 13.9 (462.2)
Total other expenses (11.0) (378.6) (199.9) (192.6) 13.9 (768.2)
Income (loss) before income taxes (124.4) 1,140.2 447.0 598.7 (1,947.8) 113.7 Benefit (provision) for income taxes 142.0 (103.7) (59.5) (79.0) 7.6 (92.6)
Net income (loss) before attribution of noncontrolling interests 17.6 1,036.5 387.5 519.7 (1,940.2) 21.1 Net income attributable to noncontrolling interests, after tax – – 0.4 0.5 (4.4) (3.5)
Net income (loss) $ 17.6 $ 1,036.5 $ 387.9 $ 520.2 $ (1,944.6) $ 17.6
Six Months Ended June 30, 2010(*) Interest income $ 1.0 $ 980.1 $ 312.8 $ 859.9 $ (25.3) $ 2,128.5 Interest expense (885.9) (290.1) (216.8) (259.4) 13.3 (1,638.9)
Net interest revenue (884.9) 690.0 96.0 600.5 (12.0) 489.6 Provision for credit losses (11.1) (280.9) (51.5) (136.2) 6.9 (472.8)
Net interest revenue, after credit provision (896.0) 409.1 44.5 464.3 (5.1) 16.8 Equity in net income of subsidiaries 871.7 519.2 263.9 291.7 (1,946.5) – Other Income Rental income on operating leases – 277.2 364.6 202.9 (1.0) 843.7 Other 233.5 65.2 190.1 12.7 (12.6) 488.9
Total other income 233.5 342.4 554.7 215.6 (13.6) 1,332.6
Total revenue, net of interest expense and credit provision 209.2 1,270.7 863.1 971.6 (1,965.2) 1,349.4
Other Expenses Depreciation on operating lease equipment – (125.7) (129.6) (96.0) 0.5 (350.8) Operating expenses 17.8 (342.8) (95.2) (145.1) 25.8 (539.5)
Total other expenses 17.8 (468.5) (224.8) (241.1) 26.3 (890.3)
Income (loss) before income taxes 227.0 802.2 638.3 730.5 (1,938.9) 459.1 Benefit (provision) for income taxes 98.8 1.5 (130.9) (101.6) 0.6 (131.6)
Net income (loss) before attribution of noncontrolling interests 325.8 803.7 507.4 628.9 (1,938.3) 327.5 Net income attributable to noncontrolling interests, after tax – 0.4 (0.5) 0.5 (1.7) (1.3)
Net income (loss) $ 325.8 $ 804.1 $ 506.9 $ 629.4 $ (1,940.0) $ 326.2
(*) 2010 data has been conformed to the current quarter presentation.
25
CONDENSED CONSOLIDATING STATEMENTS OF CASH FLOWS (dollars in millions) Non Guarantor Entities
Other Non
CIT Group Guarantor Pledged Guarantor Consolidated
Six Months Ended June 30, 2011 Inc. Entities Entities Entities Eliminations Total
Cash Flows From Operating Activities: Net cash flows provided by (used for) operations $ (1,086.2) $ 424.4 $ 275.5 $ 641.9 $ – $ 255.6
Cash Flows From Investing Activities: Net (increase) decrease in financing and leasing assets and other investing activities (1,406.4) (331.8) 420.3 973.7 – (344.2) (Increase) decrease in inter- company loans and investments 2,688.1 – – – (2,688.1) –
Net cash flows provided (used for) by investing activities 1,281.7 (331.8) 420.3 973.7 (2,688.1) (344.2)
Cash Flows From Financing Activities: Net increase (decrease) in debt and other financing activities (1,502.2) 21.9 (701.4) (1,450.0) – (3,631.7) Inter-company financing – (2,914.6) 539.1 (312.6) 2,688.1 –
Net cash flows provided by (used for) financing activities (1,502.2) (2,892.7) (162.3) (1,762.6) 2,688.1 (3,631.7)
Net (decrease) increase in unrestricted cash and cash equivalents (1,306.7) (2,800.1) 533.5 (147.0) – (3,720.3) Unrestricted cash and cash equivalents, beginning of period 2,703.6 2,946.4 1,021.1 1,979.1 – 8,650.2
Unrestricted cash and cash equivalents, end of period $ 1,396.9 $ 146.3 $ 1,554.6 $ 1,832.1 $ – $ 4,929.9
Six Months Ended June 30, 2010(*) Cash Flows From Operating Activities: Net cash flows provided by (used for) operations $ (159.6) $ (282.6) $ 59.7 $ 560.6 $ – $ 178.1
Cash Flows From Investing Activities: Net decrease in financing and leasing assets and other investing activities 459.4 2,879.4 755.4 3,028.6 – 7,122.8 (Increase) in inter-company loans and investments 893.4 – – – (893.4) –
Net cash flows provided by (used for) investing activities 1,352.8 2,879.4 755.4 3,028.6 (893.4) 7,122.8
Cash Flows From Financing Activities: Net (decrease) in debt and other financing activities (227.1) (3,128.0) (210.5) (2,653.1) – (6,218.7) Inter-company financing – 726.7 (972.9) (647.2) 893.4 –
Net cash flows provided by (used for) financing activities (227.1) (2,401.3) (1,183.4) (3,300.3) 893.4 (6,218.7)
Net increase (decrease) in unrestricted cash and cash equivalents 966.1 195.5 (368.3) 288.9 – 1,082.2 Unrestricted cash and cash equivalents, beginning of period 609.3 4,420.6 808.1 2,567.2 – 8,405.2
Unrestricted cash and cash equivalents, end of period $ 1,575.4 $ 4,616.1 $ 439.8 $ 2,856.1 $ – $ 9,487.4
(*) 2010 data has been conformed to the current quarter presentation.
26 CONDENSED CONSOLIDATING BALANCE SHEETS (dollars in millions) Restricted Unrestricted Consolidated
CIT Group Inc. Entities Entities Eliminations Total June 30, 2011 ASSETS: Net loans $ – $ 6,814.1 $ 15,568.5 $ (521.9) $ 21,860.7 Operating lease equipment, net – 9,462.2 1,495.7 (37.5) 10,920.4 Assets held for sale 7.9 921.0 934.9 (0.3) 1,863.5 Cash and deposits with banks 1,412.6 3,829.3 2,175.1 (61.3) 7,355.7 Investment securities 1,395.1 1,386.5 383.6 (181.9) 2,983.3 Other assets 32,262.7 5,956.5 494.6 (35,687.8) 3,026.0
Total Assets $ 35,078.3 $ 28,369.6 $ 21,052.4 $ (36,490.7) $ 48,009.6
LIABILITIES AND EQUITY: Long-term borrowings, including deposits $ 18,114.3 $ 4,138.6 $ 13,336.7 $ (270.4) $ 35,319.2 Credit balances of factoring clients – 1,283.8 2.9 (201.8) 1,084.9 Other liabilities 8,022.5 (2,823.4) (1,183.2) (1,353.3) 2,662.6
Total Liabilities 26,136.8 2,599.0 12,156.4 (1,825.5) 39,066.7
Total Stockholders' Equity 8,941.5 25,770.6 8,895.6 (34,666.2) 8,941.5 Noncontrolling minority interests – – 0.4 1.0 1.4
Total Equity 8,941.5 25,770.6 8,896.0 (34,665.2) 8,942.9
Total Liabilities and Equity $ 35,078.3 $ 28,369.6 $ 21,052.4 $ (36,490.7) $ 48,009.6
December 31, 2010(*) ASSETS: Net loans $ – $ 8,041.4 $ 16,359.0 $ (316.1) $ 24,084.3 Operating lease equipment, net – 9,605.7 1,568.6 (37.6) 11,136.7 Assets held for sale – 678.4 540.1 – 1,218.5 Cash and deposits with banks 2,725.6 5,885.6 2,631.6 (38.8) 11,204.0 Investment securities – 108.1 403.5 (183.1) 328.5 Other assets 31,047.4 9,115.0 328.8 (37,505.0) 2,986.2
Total Assets $ 33,773.0 $ 33,434.2 $ 21,831.6 $ (38,080.6) $ 50,958.2
LIABILITIES AND EQUITY: Long-term borrowings, including deposits $ 19,322.0 $ 4,949.2 $ 14,497.0 $ (252.2) $ 38,516.0 Credit balances of factoring clients – 926.1 9.2 – 935.3 Other liabilities 5,535.0 (888.6) (1,717.7) (335.5) 2,593.2
Total Liabilities 24,857.0 4,986.7 12,788.5 (587.7) 42,044.5
Total Stockholders' Equity 8,916.0 28,447.1 9,042.8 (37,489.9) 8,916.0 Noncontrolling minority interests – 0.4 0.3 (3.0) (2.3)
Total Equity 8,916.0 28,447.5 9,043.1 (37,492.9) 8,913.7
Total Liabilities and Equity $ 33,773.0 $ 33,434.2 $ 21,831.6 $ (38,080.6) $ 50,958.2
(*) 2010 data has been conformed to the current quarter presentation.
27 CONSOLIDATING STATEMENTS OF OPERATION (dollars in millions) Restricted Unrestricted Consolidated
CIT Group Inc. Entities Entities Eliminations Total
Six Months Ended June 30, 2011 Interest income $ 1.8 $ 679.8 $ 568.3 $ (4.6) $ 1,245.3 Interest expense (1,054.3) (193.2) (264.9) 7.8 (1,504.6)
Net interest revenue (1,052.5) 486.6 303.4 3.2 (259.3) Provision for credit losses (6.7) (126.8) (74.6) – (208.1)
Net interest revenue, after credit provision (1,059.2) 359.8 228.8 3.2 (467.4) Equity in net income of subsidiaries 1,071.3 711.0 – (1,782.3) – Other Income Rental income on operating leases – 689.9 141.3 – 831.2 Other (125.5) 528.1 126.8 (11.3) 518.1
Total other income (125.5) 1,218.0 268.1 (11.3) 1,349.3
Total revenue, net of interest expense and credit provision (113.4) 2,288.8 496.9 (1,790.4) 881.9
Other Expenses Depreciation on operating lease equipment – (246.1) (59.9) – (306.0) Operating expenses (11.0) (382.8) (82.3) 13.9 (462.2)
Total other expenses (11.0) (628.9) (142.2) 13.9 (768.2)
Income (loss) before income taxes (124.4) 1,659.9 354.7 (1,776.5) 113.7 Benefit (provision) for income taxes 142.0 (174.2) (68.0) 7.6 (92.6)
Net income (loss) before attribution of noncontrolling interests 17.6 1,485.7 286.7 (1,768.9) 21.1 Net income attributable to noncontrolling interests, after tax – 0.4 0.5 (4.4) (3.5)
Net income (loss) $ 17.6 $ 1,486.1 $ 287.2 $ (1,773.3) $ 17.6
Six Months Ended June 30, 2010(*) Interest income $ 1.0 $ 1,357.1 $ 795.7 $ (25.3) $ 2,128.5 Interest expense (885.9) (445.7) (320.6) 13.3 (1,638.9)
Net interest revenue (884.9) 911.4 475.1 (12.0) 489.6 Provision for credit losses (11.1) (358.6) (110.0) 6.9 (472.8)
Net interest revenue, after credit provision (896.0) 552.8 365.1 (5.1) 16.8 Equity in net income of subsidiaries 871.7 203.4 (87.2) (987.9) – Other Income Rental income on operating leases – 687.0 157.7 (1.0) 843.7 Other 233.5 279.0 (11.0) (12.6) 488.9
Total other income 233.5 966.0 146.7 (13.6) 1,332.6
Total revenue, net of interest expense and credit provision 209.2 1,722.2 424.6 (1,006.6) 1,349.4
Other Expenses Depreciation on operating lease equipment – (290.1) (61.2) 0.5 (350.8) Operating expenses 17.8 (491.3) (91.8) 25.8 (539.5)
Total other expenses 17.8 (781.4) (153.0) 26.3 (890.3)
Income (loss) before income taxes 227.0 940.8 271.6 (980.3) 459.1 Benefit (provision) for income taxes 98.8 (134.9) (96.1) 0.6 (131.6)
Net income (loss) before attribution of noncontrolling interests 325.8 805.9 175.5 (979.7) 327.5 Net income attributable to noncontrolling interests, after tax – – 0.4 (1.7) (1.3)
Net income (loss) $ 325.8 $ 805.9 $ 175.9 $ (981.4) $ 326.2
(*) 2010 data has been conformed to the current quarter presentation. NOTE 6 — DERIVATIVE FINANCIAL INSTRUMENTS As part of managing economic risk and exposure to interest rate, foreign currency and, in limited instances, credit risk, CIT enters into derivative transactions in over-the-counter markets with other financial institutions. CIT does not enter into derivative financial instruments for speculative purposes. Derivative instruments transacted since emergence from bankruptcy are cash collateralized. The Company continues to assess hedge requirements and has reestablished counterparty relationships to facilitate hedging where economically appropriate. During 2011 and 2010, the Company's portfolio was in an asset sensitive position, whereby assets re-price faster than liabilities, and interest margin increases in a rising interest rate environment. Our hedging strategies and qualifying hedges relate primarily to 28 currency risk management of investments in foreign operations. The Company utilizes cross-currency swaps and foreign currency forward contracts to effectively convert U.S. dollar denominated debt to a foreign currency. These transactions are classified as either foreign currency net investment hedges, or foreign currency cash flow hedges, with resulting gains and losses reflected in accumulated other comprehensive income, a separate component of equity. For hedges of foreign currency net investment positions the "forward" method is applied whereby effectiveness is assessed and measured based on the amounts and currencies of the individual hedged net investments versus the notional amounts and underlying currencies of the derivative contract. For those hedging relationships where the critical terms of the entire debt instrument and the derivative are identical and the credit-worthiness of the counterparty to the hedging instrument remains sound, there is an expectation of no hedge ineffectiveness so long as those conditions continue to be met. The net interest differential is recognized on an accrual basis as an adjustment to other income or as interest expense to correspond with the hedged position. See the Company's Form 10-K, "Note 1 — Business and Summary of Significant Accounting Policies" for further description of its derivative transaction policies. The following table presents fair values and notional values of derivative financial instruments: Fair and Notional Values of Derivative Financial Instruments (dollars in millions) June 30, 2011 December 31, 2010
Notional Asset Fair Liability Notional Asset Fair Liability
Qualifying Hedges Amount Value Fair Value Amount Value Fair Value
Cross currency swaps $ 429.1 $ – $ (26.0) $ 414.7 $ 0.8 $ (12.1) Foreign currency forward exchange – cash flow hedges 164.2 – (6.1) 183.6 6.4 (1.4) Foreign currency forward exchange – net investment hedges 1,492.3 0.7 (104.5) 1,333.4 0.5 (61.0)
Total Qualifying Hedges $ 2,085.6 $ 0.7 $ (136.6) $ 1,931.7 $ 7.7 $ (74.5)
Non-Qualifying Hedges Cross currency swaps $ 1,380.8 $ – $ (91.2) $ 1,330.3 $ 14.2 $ (38.4) Interest rate swaps 916.4 1.9 (39.7) 1,046.8 4.5 (37.7) Written options 37.0 – – 273.8 – – Purchased options 931.0 1.8 – 903.0 2.7 – Foreign currency forward exchange contracts 2,157.3 8.9 (99.7) 2,210.0 4.3 (50.2) TRS(1) 1,041.5 – – 609.9 – –
Total Non-qualifying Hedges $ 6,464.0 $ 12.6 $ (230.6) $ 6,373.8 $ 25.7 $ (126.3)
(1) A financing facility with Goldman Sachs International (GSI) is structured as a total return swap (TRS), under which amounts available for advances are accounted for as a derivative. Pursuant to applicable accounting guidance, only the unutilized portion of the TRS is accounted for as a derivative and recorded at its estimated fair value. The "notional amount" of the swap of $1,041.5 million at June 30, 2011 and $609.9 million at December 31, 2010 represent the unused portion of the GSI Facility and constitute a derivative financial instrument. It is calculated as the maximum facility commitment amount, currently $2,125.0 million, less the actual adjusted qualifying borrowing base outstanding of $1,083.5 million at June 30, 2011 and $1,515.1 million at December 31, 2010. The notional amount of the derivative will increase as the adjusted qualifying borrowing base decreases due to repayment of the underlying debt to investors. If CIT funds additional ABS under the GSI Facility, the adjusted qualifying borrowing base of the total return swap will increase and the notional amount of the derivative will decrease accordingly. Valuation of the derivative related to the GSI Facility is based on several factors using a discounted cash flow (DCF) methodology, including: • CIT's funding costs for similar recent secured financings; • Forecasted usage of the long-dated GSI Facility through the final maturity date in 2028; and • Forecasted amortization, including prepayment assumptions, due to principal payments on the underlying ABS, which impacts the amount of the unutilized portion. 29 The following table presents the impact of derivatives on the statements of operations: Derivative Instrument Gains and Losses (dollars in millions) Quarters Ended June 30, Six Months Ended June 30, Gain / (Loss) Derivative Instruments Recognized 2011 2010 2011 2010
Qualifying Hedges Foreign currency exchange rate fluctuations – cash flow hedges Other income $ (4.1) $ 9.3 $ (13.7) $ 9.3
Total Qualifying Hedges (4.1) 9.3 (13.7) 9.3 Non Qualifying Hedges Cross currency swaps Other income (4.0) 103.8 (45.0) 113.1 Interest rate swaps Other income (11.1) (30.7) (5.2) (50.1) Foreign currency forward exchange contracts Other income (15.4) 94.7 (68.8) 164.8
Total Non-qualifying Hedges (30.5) 167.8 (119.0) 227.8
Total derivatives-income statement impact $ (34.6) $ 177.1 $ (132.7) $ 237.1
NOTE 7 — FAIR VALUE Fair Value Hierarchy The Company is required to report fair value measurements for specified classes of assets and liabilities. See the Company's Form 10-K, "Note 1 — Business and Summary of Significant Accounting Policies" for description of its fair value measurement policy. The Company characterizes inputs in the determination of fair value according to the fair value hierarchy. The fair value of the Company's assets and liabilities where the measurement objective specifically requires the use of fair value are set forth in the tables below: Assets and Liabilities Measured at Fair Value on a Recurring Basis (dollars in millions) June 30, 2011 Total Level 1 Level 2 Level 3
Assets Debt Securities available for sale $ 2,700.1 $ – $ 2,700.1 $ – Equity Securities available for sale 22.7 19.3 3.4 – Trading assets at fair value – derivatives 12.6 – 12.6 – Derivative counterparty assets at fair value 0.7 – 0.7 –
Total Assets $ 2,736.1 $ 19.3 $ 2,716.8 $ –
Liabilities Trading liabilities at fair value – derivatives $ (230.6) $ – $ (230.6) $ – Derivative counterparty liabilities at fair value (136.6) – (136.6) –
Total Liabilities $ (367.2) $ – $ (367.2) $ –
December 31, 2010 Total Level 1 Level 2 Level 3
Assets Equity Securities available for sale $ 37.5 $ 16.2 $ 3.4 $ 17.9 Trading assets at fair value – derivatives 25.7 – 25.7 – Derivative counterparty assets at fair value 7.7 – 7.7 –
Total Assets $ 70.9 $ 16.2 $ 36.8 $ 17.9
Liabilities Trading liabilities at fair value – derivatives $ (126.3) $ – $ (126.0) $ (0.3) Derivative counterparty liabilities at fair value (74.5) – (74.5) –
Total Liabilities $ (200.8) $ – $ (200.5) $ (0.3)
30 The following table presents the current carrying value of the financial instruments for which a non-recurring change in fair value has been recorded, and the associated pre-tax impact: Assets Measured at Fair Value on a Non-recurring Basis (dollars in millions) Fair Value Measurements at Reporting Date Using:
June 30, 2011 Total Level 1 Level 2 Level 3 Total Losses
Assets Assets Held for Sale $ 30.0 $ – $ – $ 30.0 $ (4.0) Impaired loans 141.3 – – 141.3 (29.7)
Total $ 171.3 $ – $ – $ 171.3 $ (33.7)
Loans are transferred from held-for-investment to held-for-sale at the lower of cost or fair value. At the time of transfer, a write-down of the loan is recorded as a charge-off, if applicable. Once classified as held for sale, the amount by which the carrying value exceeds fair value is recorded as a valuation allowance. Impaired finance receivables (including loans or capital leases) of $500,000 or greater that are placed on non-accrual status are subject to periodic individual review in conjunction with the Company's ongoing problem loan management (PLM) function. Impairment occurs when, based on current information and events, it is probable that CIT will be unable to collect all amounts due according to contractual terms of the agreement. Impairment is measured as the shortfall between estimated value and recorded investment in the finance receivable, with the estimated value determined using fair value of collateral and other cash flows if the finance receivable is collateralized, or the present value of expected future cash flows discounted at the contract's effective interest rate. Level 3 Gains and Losses The tables below set forth a summary of changes in the estimated fair value of the Company's Level 3 financial assets and liabilities measured on a recurring basis. At June 30, 2011 the Company's Level 3 financial assets measured on a recurring basis were zero as a result of sales and maturities. Equity Securities
Total Derivatives available for sale
Assets and Liabilities March 31, 2011 $ (0.3) $ (0.3) $ – Gains or losses realized/unrealized Included in other income 0.3 0.3 –
Quarter Ended June 30, 2011 $ – $ – $ –
December 31, 2010 $ 17.6 $ (0.3) $ 17.9 Gains or losses realized/unrealized Included in other income 5.7 0.3 5.4 Other net, (primarily sales proceeds) (23.3) – (23.3)
Six Months Ended June 30, 2011 $ – $ – $ –
31 FAIR VALUES OF FINANCIAL INSTRUMENTS The carrying and estimated fair values of financial instruments presented below exclude leases and certain other assets and liabilities, for which disclosure is not required. Assumptions used in valuing financial instruments are disclosed below. June 30, 2011 December 31, 2010
Carrying Estimated Carrying Estimated
Value Fair Value Value Fair Value
Assets Trading assets – derivatives $ 12.6 $ 12.6 $ 25.7 $ 25.7 Derivative counterparty assets at fair value 0.7 0.7 7.7 7.7 Assets held for sale (excluding leases)(1) 1,058.1 1,208.4 466.0 466.0 Loans (excluding leases) 17,181.5 17,116.2 20,680.3 21,356.8 Investment Securities 2,983.3 2,986.0 328.5 330.2 Other assets and unsecured counterparty receivable(2) 1,486.7 1,486.7 1,507.6 1,507.6
Liabilities Deposits(3) (4,453.0) (4,507.6) (4,562.7) (4,660.0) Trading liabilities – derivatives (230.6) (230.6) (126.3) (126.3) Derivative counterparty liabilities at fair value (136.6) (136.6) (74.5) (74.5) Long-term borrowings(3) (31,051.1) (32,897.6) (34,208.1) (36,452.0) Other liabilities(4) (1,652.5) (1,652.5) (1,769.9) (1,769.9)
(1) Prior period balances have been conformed to current period presentation to exclude finance leases.
(2) Other assets subject to fair value disclosure include accrued interest receivable and other receivables, certain investment securities and miscellaneous other assets whose carrying values approximate fair value.
(3) Deposits and long-term borrowings include accrued interest.
(4) Other liabilities include accrued liabilities, which have a fair value that approximates carrying value. Assumptions used to value financial instruments as of June 30, 2011 are unchanged from those disclosed in "Note 10 — Fair Value" of the 2010 Form 10-K. Derivatives – the estimated fair values of derivatives were calculated internally using market data and represent the net amount receivable or payable to terminate, taking into account current market rates. See "Note 6 — Derivative Financial Instruments" for notional principal amounts and fair values. Assets held for sale – Assets held-for-sale are recorded at lower of cost or fair value on the balance sheet. The fair value is generally determined using internally generated valuations, which are considered Level 3 methodologies. Commercial loans are generally valued individually, while small-ticket commercial and consumer type loans are valued on an aggregate portfolio basis. Loans – Since there is no liquid secondary market for most loans in the Company's portfolio, the fair value is estimated based on discounted cash flow analysis. In addition to the characteristics of the underlying contracts, key inputs to the analysis include interest rates, prepayment rates, and credit spreads. For the commercial loan portfolio, the market based credit spread inputs are derived from instruments with comparable credit risk characteristics obtained from independent third party vendors. For the consumer loan portfolio, the discount spread is derived based on the company's estimate of a market participant's required return on equity that incorporate credit loss estimates based on expected and current default rates. Deposits – the fair value of deposits was estimated based upon a present value discounted cash flow analysis. Discount rates used in the present value calculation are based on the Company's current rates. Long-term borrowings – Most fixed-rate notes were valued based on quoted market estimates. Where market estimates were not available, values were computed using a discounted cash flow analysis with a discount rate approximating current market rates for issuances by CIT of similar term debt. The difference between the carrying values of long-term borrowings reflected in the consolidated balance sheets is accrued interest payable. 32 NOTE 8 — STOCKHOLDERS' EQUITY Accumulated Other Comprehensive (Loss) / Income Total comprehensive (Loss)/ Income was $(56.9) million and $137.0 million for the quarters ended June 30, 2011 and 2010, respectively. For the six months ended June 30, 2011 and 2010, total comprehensive income was $18.4 million and $317.8 million, respectively; including Accumulated Other Comprehensive (Loss) of $(2.7) million and $(9.7) million for the current and prior year to date periods. The following table details the ending component balances of Accumulated Other Comprehensive Loss, net of tax: June 30, 2011 December 31, 2010
Foreign currency translation adjustments $ (21.9) $ (12.9) Changes in benefit plan net gain/(loss) and prior service (cost)/credit 2.7 2.8 Unrealized gain on available for sale investments 8.1 2.2 Changes in fair values of derivatives qualifying as cash flow hedges (1.2) (1.7)
Total accumulated other comprehensive loss $ (12.3) $ (9.6)
NOTE 9 — REGULATORY CAPITAL The Company and CIT Bank are each subject to various regulatory capital requirements administered by the Federal Reserve Bank of New York ("FRBNY") and the Federal Deposit Insurance Corporation ("FDIC"). Quantitative measures established by regulation to ensure capital adequacy require that the Company and CIT Bank each maintain minimum ratios of Total and Tier 1 capital to risk-weighted assets, and of Tier 1 capital to average assets, subject to any agreement with regulators to maintain higher capital levels. In connection with becoming a bank holding company in December 2008, the Company committed to maintaining a minimum Total Risk Based Capital Ratio of 13%. In connection with converting to a Utah state bank in December 2008, CIT Bank committed to maintaining for at least three years a Tier 1 Leverage Ratio of at least 15%. The calculation of the Company's regulatory capital ratios are subject to review and consultation with the FRBNY, which may result in refinements to amounts reported at June 30, 2011. 33 Tier 1 Capital and Total Capital Components (dollars in millions) CIT Group Inc. CIT Bank
June 30, June 30, December 31, December 31, Tier 1 Capital 2011 2010 2011 2010
Total stockholders' equity $ 8,941.5 $ 8,916.0 $ 1,913.5 $ 1,832.2 Effect of certain items in accumulated other comprehensive loss excluded from Tier 1 Capital (9.5) (3.3) (0.1) (0.1)
Adjusted total equity 8,932.0 8,912.7 1,913.4 1,832.1 Less: Goodwill (264.5) (277.4) – – Disallowed intangible assets (84.1) (119.2) – – Investment in certain subsidiaries (35.3) (33.4) – – Other Tier 1 components(1) (62.7) (65.2) (80.7) (97.8)
Total Tier 1 Capital 8,485.4 8,417.5 1,832.7 1,734.3 Tier 2 Capital Qualifying reserve for credit losses 439.3 416.2 23.2 10.7 Less: Investment in certain subsidiaries (35.3) (33.4) – – Other Tier 2 components(2) 2.6 0.2 0.1 0.1
Total Tier 2 Capital 406.6 383.0 23.3 10.8
Total Capital (Tier 1 and Tier 2 Capital) $ 8,892.0 $ 8,800.5 $ 1,856.0 $ 1,745.1
Risk-weighted assets(4) $ 44,037.0 $ 44,176.7 $ 3,854.7 $ 3,022.0
Total Capital (to risk-weighted assets): Actual 20.2% 19.9% 48.1% 57.7% Required Ratio for Capital Adequacy Purposes 13.0%(3) 13.0%(3) 8.0% 8.0% Tier 1 Capital (to risk-weighted assets): Actual 19.3% 19.1% 47.5% 57.4% Required Ratio for Capital Adequacy Purposes 4.0% 4.0% 4.0% 4.0% Tier 1 Capital Leverage Ratio: Actual 17.1% 16.2% 27.4% 24.2% Required Ratio for Capital Adequacy Purposes 4.0% 4.0% 15.0%(3) 15.0%(3)
(1) Includes the portion of net deferred tax assets that does not qualify for inclusion in Tier 1 capital based on the capital guidelines and the Tier 1 capital charge for nonfinancial equity investments.
(2) Banking organizations are permitted to include in Tier 2 Capital up to 45% of net unrealized pretax gains on available-for- sale equity securities with readily determinable fair values.
(3) The Company and CIT Bank each committed to maintaining certain capital ratios above regulatory minimum levels.
(4) Risk-weighted assets include purchase commitments for aircraft to be purchased under a June 2011 Memorandum of Understanding. NOTE 10 — INCOME TAXES CIT's tax provision of $26.9 million for the second quarter decreased compared to a tax provision of $88.2 million in the prior year quarter primarily as a result of lower international earnings and a decrease in discrete items. CIT's tax provision of $92.6 million for the six months ended June 30, 2011 decreased compared to a tax provision of $131.6 million in the prior year six months primarily as a result of lower international earnings. For the year to date tax provision, the Company recorded income tax expense on the earnings of certain international operations and no income tax benefit on its domestic losses. A tax benefit was not recognized on the domestic losses because management has concluded that it does not currently meet the criteria to recognize these tax benefits considering its recent history of domestic losses. The year end 2011 effective tax rate may vary from the current rate primarily due to changes in the mix of domestic and international earnings. The tax provision for the second quarter and six months ended 2011 included $2.2 million and $18.8 million, respectively, of discrete tax expense items. Included in the discrete items for the second quarter and year to date was approximately $0.8 million and $9.8 million, primarily related to a net increase in liabilities for uncertain tax positions and incremental valuation allowances on certain foreign losses. The Company anticipates that it is reasonably possible that the total unrecognized tax benefits will decrease 34 due to the settlement of audits and the expiration of statutes of limitation prior to June 30, 2012 in the range of $0-$10 million. The tax provision for the year to date also reflects $9 million of discrete tax expense items primarily associated with the correction of certain foreign tax expense calculations relating to prior periods. Management has concluded that the adjustments were not individually or in the aggregate material to the consolidated financial statements, as of and for the period ended June 30, 2011, or to any of the preceding periods as reported. As of December 31, 2010, CIT had cumulative U.S. Federal net operating loss carry-forwards (NOL's) of $4.0 billion. Excluding FSA adjustments, which are not included in the calculation of U.S. Federal taxable income, the Company generated a domestic pretax loss of $288 million in the second quarter ($701 million year to date) which, excluding certain other book-to-tax adjustments, will increase the post-emergence NOLs. Pursuant to Section 382 of the Internal Revenue Code, the Company is generally subject to a $230 million annual limitation on the use of its $1.9 billion of pre-emergence NOLs. NOLs arising in post-emergence years are not subject to this limitation. NOTE 11 — COMMITMENTS The accompanying table summarizes credit-related commitments, as well as purchase and funding commitments: Commitments (dollars in millions) June 30, 2011 December 31,
Due to Expire 2010
Within After Total Total
One Year One Year Outstanding Outstanding
Financing Commitments Financing and leasing assets $ 276.8 $ 2,339.1 $ 2,615.9 $ 3,083.2 Letters of credit and acceptances Standby letters of credit 78.3 162.8 241.1 284.7 Other letters of credit 101.0 32.7 133.7 99.0 Guarantees Deferred purchase credit protection agreements 1,244.0 – 1,244.0 1,667.9 Guarantees, acceptances and other recourse obligations 13.5 21.3 34.8 25.8 Purchase and Funding Commitments Aerospace manufacturer purchase commitments 926.9 6,978.0 7,904.9 5,701.4 Rail and other manufacturer purchase commitments 486.4 – 486.4 – Other Liabilities for unrecognized tax benefits 10.0 442.1 452.1 451.6 Financing Commitments Financing commitments, referred to as loan commitments, or lines of credit, reflect CIT's agreements to lend to its customers, subject to the customers' compliance with contractual obligations. The table above includes approximately $0.5 billion of commitments at June 30, 2011 and $0.7 billion at December 31, 2010 for instances where the customer is not in compliance with contractual obligations, and therefore CIT does not have the contractual obligation to lend. As financing commitments may not be fully drawn, expire unused, be reduced or cancelled at the customer's request, and require the customer to be in compliance with certain conditions, total commitment amounts do not necessarily reflect actual future cash flow requirements. 35 At June 30, 2011, substantially all financing commitments were senior facilities, with approximately 57% secured by equipment or other assets and the remainder comprised of cash-flow or enterprise value facilities. The vast majority of these commitments are syndicated transactions. CIT is lead agent in approximately 28% of the facilities. Most of our undrawn and available financing commitments are in Corporate Finance. The top ten undrawn commitments totaled $306 million. The table above excludes unused cancelable lines of credit to customers in connection with select third-party vendor programs, which may be used solely to finance additional product purchases, the total of which was not material for either period presented. These uncommitted lines of credit can be reduced or canceled by CIT at any time without notice. Management's experience indicates that customers related to vendor programs typically exercise their line of credit only when they need to purchase new products from a vendor and do not seek to exercise their entire available line of credit at any point in time. Letters of Credit In the normal course of meeting the needs of clients, CIT sometimes enters into agreements to provide financing and letters of credit. Standby letters of credit obligate the issuer of the letter of credit to pay the beneficiary if a client on whose behalf the letter of credit was issued does not meet its obligation. These financial instruments generate fees and involve, to varying degrees, elements of credit risk in excess of amounts recognized in the Consolidated Balance Sheets. To minimize potential credit risk, CIT generally requires collateral and in some cases additional forms of credit support from the client. Deferred Purchase Agreements A Deferred Purchase Agreement ("DPA") is provided in conjunction with factoring, whereby CIT provides a client with credit protection for trade receivables without purchasing the receivables. The trade terms are generally sixty days or less. If the client's customer is unable to pay an undisputed receivable solely as the result of credit risk, then CIT purchases the receivable from the client. The outstanding amount of DPAs is the maximum potential exposure that CIT would be required to pay under all DPAs. This maximum amount would only occur if all receivables subject to DPAs default in the manner described above, thereby requiring CIT to purchase all such receivables from the DPA clients. The methodology used to determine the DPA liability is similar to the methodology used to determine the allowance for loan losses associated with the finance receivables, which reflects embedded losses based on various factors, including expected losses reflecting our internal customer and facility credit ratings. The liability recorded in Other Liabilities related to the DPAs totaled $4.0 million and $4.2 million at June 30, 2011 and December 31, 2010, respectively. Purchase and Funding Commitments CIT's purchase commitments relate primarily to purchases of commercial aircraft and rail equipment. Commitments to purchase new commercial aircraft are predominantly with Airbus Industries ("Airbus") and The Boeing Company ("Boeing"). CIT may also, from time to time, commit to purchase an aircraft directly with an airline. Aerospace equipment purchases are contracted for specific models, using baseline aircraft specifications at fixed prices, which reflect discounts from fair market purchase prices prevailing at the time of commitment. The delivery price of an aircraft may change depending on final specifications. Equipment purchases are recorded at the delivery date. The estimated commitment amounts in the preceding table are based on contracted purchase prices reduced for pre-delivery payments to date and exclude buyer furnished equipment selected by the lessee. Pursuant to existing contractual commitments, 148 aircraft remain to be purchased from Airbus and Boeing, including 50 A320neo Family aircraft to be purchased under a June 2011 Memorandum of Understanding for which a Purchase Agreement was signed in July 2011. Aircraft deliveries are scheduled periodically through 2019. Commitments exclude unexercised options to order additional aircraft. 36 The Company's rail business entered into a commitment to purchase 3,500 railcars in the first quarter of 2011 and entered into a commitment to purchase 2,250 railcars in the second quarter of 2011. Pursuant to these contractual commitments, approximately 5,550 railcars remain to be purchased, with deliveries scheduled periodically in 2011 and 2012 and are included in the preceding table. On July 26, 2011, CIT announced orders for 5,000 railcars (which includes the second quarter commitments of 2,250 railcars and an incremental 2,750 railcars not included in the preceding table) from multiple manufacturers, for which deliveries are scheduled throughout 2012. Rail equipment purchase commitments are at fixed prices subject to price increases for certain materials. NOTE 12 — CONTINGENCIES Litigation CIT is currently involved, and from time to time in the future may be involved, in a number of judicial, regulatory, and arbitration proceedings relating to matters that arise in connection with the conduct of its business (collectively, "Litigation"). In view of the inherent difficulty of predicting the outcome of Litigation matters, particularly when such matters are in their early stages or where the claimants seek indeterminate damages, CIT cannot state with confidence what the eventual outcome of the pending Litigation will be, what the timing of the ultimate resolution of these matters will be, or what the eventual loss, fines, or penalties related to each pending matter may be. In accordance with applicable accounting guidance, CIT establishes reserves for Litigation when those matters present loss contingencies as to which it is both probable that a loss will occur and the amount of such loss can be reasonably estimated. Based on currently available information, CIT believes that the results of Litigation that is currently pending, taken together, will not have a material adverse effect on the Company's financial condition, but may be material to the Company's operating results or cash flows for any particular period, depending in part on its operating results for that period. The actual results of resolving such matters may be substantially higher than the amounts reserved. For certain Litigation matters in which the Company is involved, the Company is able to estimate a range of reasonably possible losses in excess of the loss amount accrued. For other matters for which a loss is probable or reasonably possible, such an estimate is not reasonably possible. For Litigation where losses are reasonably possible, management currently estimates the aggregate range of reasonably possible losses as up to $265 million in excess of established reserves. This estimate represents reasonably possible losses (in excess of established reserves and other amounts referenced above) over the life of such Litigation, which may span a currently indeterminable number of years, and is based on information currently available as of June 30, 2011. The matters underlying the estimated range will change from time to time, and actual results may vary significantly from this estimate. Those Litigation matters for which an estimate is not reasonably possible or as to which a loss does not appear to be reasonably possible, based on current information, are not included within this estimated range and, therefore, this estimated range does not represent the Company's maximum loss exposure. The foregoing statements about our litigation are based on the Company's judgments, assumptions, and estimates and are necessarily subjective and uncertain. Some of our pending litigation matters are described below. Securities Class Action In July and August 2008, two putative class action lawsuits were filed in the United States District Court for the Southern District of New York (the "New York District Court") on behalf of CIT's pre-reorganization stockholders against CIT, its former CEO and its former CFO. In August 2008, a putative class action lawsuit was filed in the New York District Court by a holder of CIT-PrZ equity units against CIT, its former CEO, former CFO, former Controller and certain members of its current and former Board of Directors. In May 2009, the Court consolidated these three shareholder actions into a single action and appointed 37 Pensioenfonds Horeca & Catering as Lead Plaintiff to represent the proposed class, which consists of all acquirers of CIT common stock and PrZ preferred stock from December 12, 2006 through March 5, 2008, who allegedly were damaged, including acquirers of CIT-PrZ preferred stock pursuant to the October 17, 2007 offering of such preferred stock. In July 2009, the Lead Plaintiff filed a consolidated amended complaint alleging violations of the Securities Exchange Act of 1934 ("1934 Act") and the Securities Act of 1933 ("1933 Act"). Specifically, it is alleged that the Company, its former CEO, former CFO, former Controller, and a former Vice Chairman violated Section 10(b) of the 1934 Act by making false and misleading statements and omissions regarding CIT's subprime home lending and student lending businesses. The allegations relating to the Company's home lending business are based on the assertion that the Company failed to fully disclose the risks in the Company's portfolio of subprime mortgage loans. The allegations relating to the Company's student lending business are based upon the assertion that the Company failed to account in its financial statements or, in the case of the preferred stockholders, its registration statement and prospectus, for private loans to students of a helicopter pilot training school, which it is alleged were highly unlikely to be repaid and should have been written off. The Lead Plaintiff also alleges that the Company, its former CEO, former CFO and former Controller and those current and former Directors of the Company who signed the registration statement in connection with the October 2007 CIT-PrZ preferred offering violated the 1933 Act by making false and misleading statements concerning the Company's student lending business as described above. Pursuant to a Notice of Dismissal filed on November 24, 2009, CIT Group Inc. was dismissed as a defendant from the consolidated securities action as a result of its discharge in bankruptcy. On June 10, 2010, the Court denied the remaining defendants' motion to dismiss the consolidated amended complaint. The action continues as to the remaining defendants and CIT's obligation to defend and indemnify such defendants continues. The case is in the discovery stage. Plaintiffs seek, among other relief, unspecified damages and interest. Non-binding mediation is scheduled for August, 2011. Tyco Tax Agreement This matter, which was previously reported as a contractual contingency in our SEC filings, has now evolved into litigation. In connection with our separation from Tyco International Ltd ("Tyco") in 2002, CIT and Tyco entered into a Tax Agreement pursuant to which, among other things, CIT agreed to pay Tyco for tax savings actually realized by CIT, if any, as a result of the use of certain tax attributes resulting from net operating losses recognized while Tyco owned CIT (the "Tyco Tax Attribute"), which savings would not have been realized absent the existence of the Tyco Tax Attribute. During CIT's bankruptcy, CIT rejected the Tax Agreement, and Tyco and CIT entered into a Standstill Agreement pursuant to which (a) CIT agreed that it would defer bringing its subordination claim against Tyco and (b) Tyco agreed that it would defer bringing its damages claim against CIT while the parties exchanged information about CIT's tax position, including past usage and retention of the various attributes on its consolidated tax return. Notwithstanding the Standstill Agreement, Tyco filed a Notice of Arbitration during the 2011 second quarter, demanding arbitration of its alleged contractual damages resulting from rejection of the Tax Agreement. CIT filed a motion in the United States Bankruptcy Court for the Southern District of New York seeking a stay of the arbitration, together with an adversary proceeding seeking to subordinate Tyco's interests under section 510(b) of the Bankruptcy Code, which would result in Tyco being treated like equity holders under CIT's confirmed Plan of Reorganization and receiving no recovery in connection with the termination of the Tax Agreement. By stipulation, the parties have agreed to stay the arbitration pending the court's ruling on the subordination claims. The amount of the Federal Tyco Tax Attribute is approximately $794 million and the state Tyco Tax Attribute is approximately $180 million as of the separation date. CIT's approximate applicable federal and state tax rates are currently 35% and 6.5%, respectively. CIT has recorded a valuation allowance against a significant portion of its federal and state deferred tax assets, as the Company continues to conclude that it does not currently meet the criteria to recognize these assets. It is CIT's position that it 38 has not received federal tax benefits from the Tyco Tax Attribute within the meaning of the Tax Agreement and that it is speculative as to when, if ever, any such benefits may be realized in the future. Le Nature's Inc. CIT was the lead lessor under a syndicated lease of equipment (the "Lease") to Le Nature's Inc., a beverage bottler, for a newly-constructed bottling facility in Phoenix, Arizona. In 2005, CIT and co-lessors funded $144.8 million of which approximately $45 million was funded by CIT. In 2006, CIT sold $5 million of its interest in the Lease. In November 2006, amid allegations that Le Nature's had perpetrated a fraudulent scheme, creditors filed an involuntary bankruptcy against Le Nature's in the United States Bankruptcy Court for the Western District of Pennsylvania. Upon the commencement of the bankruptcy, Le Nature's immediately ceased operations and a Chapter 11 trustee was appointed. Subsequent to the commencement of the Le Nature's bankruptcy, certain co-lessors and certain parties that participated in CIT's and other co-lessors's interests in the Lease filed lawsuits against CIT and others to recover the balance of their respective investments, asserting various claims including fraud, civil conspiracy, and civil Racketeer Influenced and Corrupt Organizations Act (RICO). Plaintiffs seek damages in excess of $84 million as well as claims for treble damages under RICO. All but one of these actions has been consolidated for discovery purposes in the United States District Court for the Western District of Pennsylvania. In October 2008, the Liquidating Trustee of Le Nature's commenced an action against, among others, Le Nature's lenders and lessors, including CIT, asserting a variety of claims on behalf of the liquidation trust. In October 2008, CIT commenced a lawsuit in the Superior Court for the State of Arizona, Maricopa County, against the manufacturer of the equipment that was the subject of the Lease, certain of its principals, and the former CEO of Le Nature's, alleging, among other things, fraud, conspiracy, civil RICO and negligent misrepresentation, seeking compensatory and punitive damages. In February 2009, CIT commenced a lawsuit in the Superior Court for the State of Arizona, Maricopa County, against the former independent auditing firm for Le Nature's, asserting professional negligence. In May 2009, one of Le Nature's other equipment lessors commenced an action against CIT, as well as the equipment manufacturer, and certain principals of the equipment manufacturer, in the Circuit Court of Wisconsin, Milwaukee County, asserting claims for fraud and misrepresentation. NOTE 13 — BUSINESS SEGMENT INFORMATION Management's Policy in Identifying Reportable Segments CIT's reportable segments are comprised of strategic business units that are aggregated into segments primarily based upon industry categories and to a lesser extent, the core competencies relating to product origination, distribution methods, operations and servicing and the nature of their regulatory environment. This segment reporting is consistent with the presentation of financial information to management. Types of Products and Services CIT has five reportable segments: Corporate Finance, Transportation Finance, Trade Finance, Vendor Finance and Consumer. Corporate Finance and Trade Finance offer secured lending and receivables collection as well as other financial products and services to small and midsize companies. These include secured revolving lines of credit and term loans, credit protection, accounts receivable collection, import 39 and export financing and factoring, debtor-in-possession and turnaround financing and management advisory services. Transportation Finance offers secured lending and leasing products to midsize and larger companies across the aerospace, rail and defense industries. Vendor Finance partners with manufacturers and distributors to offer secured lending and leasing products predominantly to small and mid-size companies primarily in information technology, telecommunication and office equipment markets. Consumer includes a liquidating portfolio of predominately government-guaranteed student loans and certain consumer loans of CIT Bank. Segment Profit and Assets The Company refined its expense and capital allocation methodologies during the first quarter of 2011. For 2011, Corporate and other includes certain costs that had been previously allocated to the segments, including prepayment penalty fees on high-cost debt payments and certain corporate liquidity costs. In addition, the Company refined the capital and interest allocation methodologies for the segments. These changes had the most impact on Transportation Finance given the capital requirements for their forward-purchase commitments and reduced the interest expense charged to this segment. On a comparable basis, pre-tax income for Transportation Finance would have been approximately $67 million for the quarter ended June 30, 2010 and $140 million for the six months then ended. These increases would be offset by decreases in Corporate and Other for the respective periods. The refinement was not significant to the other segments. The 2010 balances are reflected as originally reported and are not conformed to the 2011 presentation. Corporate and Other includes cash liquidity in excess of the amount required by the business units that management determines is prudent for the overall company and the prepayment penalty fees associated with debt repayments. 40 The following table presents reportable segment information and the reconciliation of segment balances to consolidated financial statements: Business Segments (dollars in millions)
Corporate Transportation Trade Vendor Commercial Total Corporate Finance Finance Finance Finance Segments Consumer Segments and Other Total
For the quarter ended June 30, 2011
Total interest income $ 270.9 $ 44.5 $ 17.9 $ 195.1 $ 528.4 $ 68.9 $ 597.3 $ 4.8 $ 602.1 Total interest expense (212.0) (250.8) (29.5) (145.5) (637.8) (48.7) (686.5) (119.2) (805.7) Provision for credit losses (61.3) (4.7) (4.0) (13.8) (83.8) (0.9) (84.7) – (84.7) Rental income on operating leases 5.5 339.5 – 72.9 417.9 – 417.9 – 417.9 Other income, excluding rental income 118.2 33.0 42.8 50.8 244.8 3.1 247.9 (8.0) 239.9 Depreciation on operating lease equipment (3.0) (86.7) – (55.8) (145.5) – (145.5) – (145.5) Other expenses (66.9) (37.4) (26.4) (82.1) (212.8) (15.5) (228.3) (17.5) (245.8)
Income (loss) before provision (benefit) for income taxes $ 51.4 $ 37.4 $ 0.8 $ 21.6 $ 111.2 $ 6.9 $ 118.1 $ (139.9) $ (21.8)
For the quarter ended June 30, 2010 Total interest income $ 494.7 $ 57.8 $ 24.4 $ 345.2 $ 922.1 $ 96.7 $ 1,018.8 $ 5.0 $ 1,023.8 Total interest expense (276.0) (234.3) (49.5) (190.4) (750.2) (59.4) (809.6) 2.1 (807.5) Provision for credit losses (95.2) (3.0) (12.3) (111.9) (222.4) (9.3) (231.7) (15.0) (246.7) Rental income on operating leases 7.3 315.0 – 96.1 418.4 – 418.4 (0.5) 417.9 Other income, excluding rental income 206.4 18.2 51.4 33.2 309.2 18.3 327.5 11.0 338.5 Depreciation on operating lease equipment (5.1) (85.9) – (87.4) (178.4) – (178.4) 0.3 (178.1) Other expenses (90.3) (45.5) (33.0) (86.3) (255.1) (22.7) (277.8) – (277.8)
Income (loss) before provision (benefit) for income taxes $ 241.8 $ 22.3 $ (19.0) $ (1.5) $ 243.6 $ 23.6 $ 267.2 $ 2.9 $ 270.1
41 Trans- Corporate portation Trade Vendor Commercial Total Corporate Finance Finance Finance Finance Segments Consumer Segments and Other Total
For the six months ended June 30, 2011 Total interest income $ 569.6 $ 87.0 $ 35.0 $ 403.4 $ 1,095.0 $ 139.7 $ 1,234.7 $ 10.6 $ 1,245.3 Total interest expense (408.8) (461.3) (55.2) (278.5) (1,203.8) (101.7) (1,305.5) (199.1) (1,504.6) Provision for credit losses (135.8) (6.5) (7.3) (56.7) (206.3) (1.8) (208.1) – (208.1) Rental income on operating leases 12.0 664.2 – 155.0 831.2 – 831.2 – 831.2 Other income, excluding rental income 282.0 57.3 79.9 82.4 501.6 6.2 507.8 10.3 518.1 Depreciation on operating lease equipment (5.9) (183.4) – (116.7) (306.0) – (306.0) – (306.0)
Other expenses (125.7) (77.2) (54.2) (153.8) (410.9) (32.9) (443.8) (18.4) (462.2)
Income (loss) before provision (benefit) for income taxes $ 187.4 $ 80.1 $ (1.8) $ 35.1 $ 300.8 $ 9.5 $ 310.3 $ (196.6) $ 113.7
Select Period End Balances Loans including receivables pledged $ 7,423.9 $ 1,356.3 $ 2,538.4 $ 3,940.4 $ 15,259.0 $ 7,025.7 $ 22,284.7 $ – $ 22,284.7 Credit balances of factoring clients – – (1,084.9) – (1,084.9) – (1,084.9) – (1,084.9) Assets held for sale 378.8 257.3 – 528.1 1,164.2 699.3 1,863.5 – 1,863.5 Operating lease equipment, net 51.1 10,619.3 – 250.0 10,920.4 – 10,920.4 – 10,920.4 For the six months ended June 30, 2010 Total interest income $ 1,042.7 $ 121.5 $ 54.9 $ 707.2 $ 1,926.3 $ 192.6 $ 2,118.9 $ 9.6 $ 2,128.5 Total interest expense (574.8) (492.6) (91.1) (358.3) (1,516.8) (126.2) (1,643.0) 4.1 (1,638.9) Provision for credit losses (229.1) (4.3) (46.2) (164.4) (444.0) (13.8) (457.8) (15.0) (472.8) Rental income on operating leases 16.1 621.8 – 206.9 844.8 – 844.8 (1.1) 843.7 Other income, excluding rental income 309.0 40.4 100.6 72.0 522.0 24.1 546.1 (57.2) 488.9 Depreciation on operating lease equipment (8.7) (164.5) – (178.1) (351.3) – (351.3) 0.5 (350.8)
Other expenses (170.2) (85.1) (65.0) (173.2) (493.5) (44.2) (537.7) (1.8) (539.5)
Income (loss) before provision (benefit) for income taxes $ 385.0 $ 37.2 $ (46.8) $ 112.1 $ 487.5 $ 32.5 $ 520.0 $ (60.9) $ 459.1
Select Period End Balances Loans including receivables pledged $ 10,346.2 $ 1,636.9 $ 2,514.6 $ 6,101.3 $ 20,599.0 $ 8,789.6 $ 29,388.6 $ – $ 29,388.6 Credit balances of factoring clients – – (877.3) – (877.3) – (877.3) – (877.3) Assets held for sale 514.8 10.4 – 18.8 544.0 28.5 572.5 – 572.5 Operating lease equipment, net 105.6 10,296.9 – 551.9 10,954.4 – 10,954.4 – 10,954.4 NOTE 14 — SUBSEQUENT EVENTS On July 15, 2011, CIT redeemed $500 million of the $3 billion senior secured first lien facility. The net impact of the acceleration of deferred debt costs and the favorable FSA amortization will increase third quarter interest expense by approximately $15 million. On July 26, 2011, CIT announced orders for 5,000 railcars (which includes the second quarter commitment of 2,250 railcars and an incremental 2,750 railcars in July 2011) from multiple manufacturers, for which deliveries are scheduled throughout 2012. The orders include the exercise of an option for an additional 1,750 railcars received when the Company ordered 3,500 railcars earlier this year. 42 ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of Operations and ITEM 3. Quantitative and Qualitative Disclosures about Market Risk OVERVIEW Founded in 1908, CIT Group Inc. ("we", "CIT" or the "Company"), a Delaware Corporation, is a bank holding company that provides commercial financing and leasing products and other financial services to small and middle market businesses across a wide variety of industries. CIT became a bank holding company in December 2008 and CIT Bank, a Utah state-chartered bank, is the Company's principal bank subsidiary. CIT operates primarily in North America, with locations in Europe, Latin America and Asia and has four commercial business segments – Corporate Finance, Trade Finance, Transportation Finance and Vendor Finance. We also own and manage a pool of liquidating consumer loans, predominantly government guaranteed student loans, that are reported in the Consumer segment. As of June 30, 2011 the Company had 3,480 employees and approximately $48 billion in assets. "Management's Discussion and Analysis of Financial Condition and Results of Operations" and "Quantitative and Qualitative Disclosures about Market Risk" contain financial terms that are relevant to our business. You can find a glossary of these terms in "Item 1. Business Overview" in our Form 10-K for the year ended December 31, 2010 (the "2010 Form 10-K"). The June 30, 2010 amounts have been restated to correct for errors found by the Company subsequent to the filing of its third quarter 2010 report on Form 10- Q, related primarily to the application of Fresh Start Accounting ("FSA"), the effects of which were disclosed in the Company's December 31, 2010 Form 10- K. The effect of the restatement increased net income for the quarter and six months ended June 30, 2010 by approximately $40 million and $87 million, respectively, to $182 million and $326 million as compared to the amount originally reported in the June 30, 2010 Form 10-Q. Comparisons to the 2010 balances are to the restated amounts. See the Company's 2010 Form 10-K, "Note 26 — Selected Quarterly Financial Data (Unaudited)" of Item 8 and "Select 2010 Form 10-Q Restated Sections" of Item 7 for further information. Management uses certain non-GAAP financial measures in its analysis of the financial condition and results of operations of the Company. See "Non-GAAP Financial Measurements" for a reconciliation of these to comparable GAAP measures. 2011 PRIORITIES AND PROGRESS We continue to make progress on our priorities, which we described in our December 31, 2010 Form 10-K. The following highlight some of our progress: 1. Focus on growth in our four core businesses, both domestically and internationally • Increased new business activity. Funded new business volume increased 67% and 30% to $1.7 billion over the prior year quarter and from last quarter as Corporate Finance, Transportation Finance and Vendor Finance each reported double-digit percentage increases in lending/leasing 43 volume sequentially and year-over-year. Committed new business volume was $2.1 billion, up from $1.1 billion in the prior year quarter and $1.7 billion last quarter. • Stabilized the client base in Trade Finance. Factoring volume was $6.1 billion, unchanged from the 2011 first quarter and down from $6.3 billion for the 2010 second quarter, due to the wind- down of our European factoring operation. Excluding the European operation, factoring volume was up approximately 4% from the 2010 second quarter. 2. Improve profitability, including reducing our cost of capital and operating expenses • Prepaid over $4.75 billion of high cost debt year-to-date, including the $500 million first lien payment in July. During the second quarter, we redeemed $2.5 billion of 7% Series A Notes, bringing year-to-date Series A redemptions to $3.5 billion. During the first quarter, we also redeemed the remaining $0.75 billion of 10.25% Series B Notes that were outstanding. And on July 15, 2011, we redeemed $500 million of the $3 billion senior secured first lien term loan. • Closed over $3.5 billion of capital markets and secured bank financing facilities year-to-date. In the second quarter, we 1) established a new RMB 1.8 billion Vendor Finance China facility (approximately $275 million) to fund activity in that country, 2) received $150 million of secured aircraft funding through a newly established facility guaranteed by the Export-Import Bank of the United States, and 3) renewed a £100 million committed U.K. Vendor Finance securitization facility at significantly lower cost and longer term. During the first quarter, we accessed the capital markets for cost-efficient funding by issuing $2 billion of second lien Series C debt and we renewed a $1 billion committed U.S. Vendor Finance conduit facility at a significantly reduced cost, higher advance rate and longer tenor. • Took steps to address the restrictive covenants contained in restructuring-related debt. During the second quarter, we successfully completed an exchange offer through which approximately $8.8 billion of Series A Notes were exchanged for new Series C Notes. We also completed a consent solicitation through which the covenants in the Series A Notes maturing in 2015, 2016 and 2017, other than the cash sweep, were amended to generally conform to the less restrictive covenants in the Series C Notes. The covenants in the Series C Notes are more consistent with covenants in investment grade-rated bonds. • Reduced employee head count to 3,480 from 3,778 at December 31, 2010, reflecting the sale of the Dell Canada operations, outsourcing and other efficiency actions. First half 2011 operating expenses (exclusive of restructuring charges) declined 13% from the comparable period in 2010. 3. Expand the role of CIT Bank, both in asset origination and funding capabilities
• Increased asset origination activity. Year-to-date committed loan volume rose to $1.9 billion from $0.2 billion in 2010, of which $1.2 billion was funded, up from $0.1 billion during the first half of 2010. Second quarter committed volume was up 41% from the first quarter and funded volume nearly doubled. Bank originations represented approximately 70% of the total U.S. funded volume in the second quarter (approximately 67% year to date). • Obtained the necessary regulatory approvals and transferred the Small Business Lending operating platform into the bank in March 2011 and the U.S. Vendor Finance platform into the bank in July 2011. • Issued over $600 million of brokered certificates of deposit during the second quarter with a weighted average cost of approximately 1.75% and weighted average term in excess of 3 years. 44 • Announced the Federal Deposit Insurance Corporation (FDIC) and the Utah Department of Financial Institutions (UDFI) terminated their Cease and Desist Orders against CIT Bank in April 2011 that were jointly issued on July 16, 2009. During the second half of 2011 we will continue to advance these business priorities, as well as those relating to risk management, compliance and control functions and to substantially satisfy the open items in the Written Agreement with the Federal Reserve Bank of New York that the Company entered into on August 12, 2009. 2011 FINANCIAL OVERVIEW Net loss for the quarter ended June 30, 2011 of $48 million, $0.24 per diluted share, compared to net income of $66 million, $0.33 per diluted share for the 2011 first quarter and $182 million, $0.91 per diluted share, a year ago, primarily on reduced benefits from fresh start accounting ("FSA") accretion. The components of FSA accretion and amortization are detailed in the following section "Fresh Start Accounting". The $108 million sequential decline in FSA accretion and the decrease of $425 million from the 2010 second quarter reflect accelerated repayment of second lien debt carried at a discount and lower asset levels in the 2011 second quarter. Lower credit costs partially offset the lower FSA accretion. Net income for the six months ended June 30, 2011 was $18 million, $0.09 per diluted share, down from $326 million, $1.63 per diluted share for 2010, reflecting similar trends. Net finance revenue(1) for the quarter ended June 30, 2011 declined to $69 million from $197 million last quarter and $456 million in the prior year quarter as a result of a declining asset base and lower FSA accretion benefits, which has had a lower impact on interest income in 2011 due to higher loan sales in 2010, but continues to impact interest expense due to continued debt repayment (See "Fresh Start Accounting"). Average earning assets1 of $34 billion for the quarter declined $1 billion sequentially and $8 billion from a year ago quarter largely due to asset sales. Net finance revenue as a percentage of average earning assets ("finance margin") was 0.80%, down both sequentially and from the prior year as reduced net FSA accretion more than offset the benefit from the reduction in second lien debt. Excluding FSA and prepayment penalties on debt, finance margin was 1.45%, essentially unchanged from the prior quarter and up from 0.73% a year ago. Compared to the first quarter, the second quarter result reflected slightly higher asset yields and a reduction in second lien debt offset by costs related to liability restructuring and reduced benefits on a secured borrowing facility (the Total Return Swap). The expansion of finance margin from the prior year quarter was primarily driven by lower funding costs, including increased benefits from the Total Return Swap. Net operating lease revenue(1) improved primarily reflecting higher utilization. Net finance revenue for the six months ended June 30, 2011 totaled $266 million, down from $983 million as the benefits from FSA accretion declined $794 million compared to the prior year six months. Provision for credit losses for the quarter ended June 30, 2011 was $85 million, a decrease of 31% sequentially and 66% from the prior year quarter. Provision for credit losses for the six months ended June 30, 2011 totaled $208 million, down from $473 million for the prior year six months. The declines reflect improved trends in credit metrics including declines in net charge-offs and non-accrual balances. Other income (excluding operating lease rentals) for the quarter ended June 30, 2011 declined to $240 million from $278 million last quarter and $339 million in the prior year quarter. The sequential decline was driven by mark-to-market valuations on non-qualifying hedge derivatives, as well as a lower level of recoveries on receivables charged-off prior to the adoption of FSA. The decrease from the prior year quarter was primarily due to lower recoveries on pre- FSA charge-offs. Other income for the six months ended June 30, 2011 totaled $518 million, up from $489 million for the prior year six months as higher
(1) Net finance revenue, average earning assets and net operating lease margin are non-GAAP measures; see reconciliation of non-GAAP to GAAP financial information
45 gains on asset sales and favorable mark to market valuations offset the decline in recoveries on pre-FSA charge-offs. Operating expenses were $246 million for the quarter, up from $216 million last quarter and down from $279 million in the prior year quarter. The 14% sequential increase in operating expenses was driven by non-recurring servicing expenses in Vendor Finance, approximately $7 million of which pertained to the correction of prior periods, and higher litigation-related costs. The 12% decline from the prior-year quarter is mostly attributable to lower employee costs. Headcount declined 13% from a year ago to 3,480 at June 30, 2011. Operating expenses for the six months ended June 30, 2011 totaled $462 million, down from $540 million for the prior year six months, primarily due to lower employee costs. Provision for income taxes of $27 million in the second quarter declined from $66 million last quarter and $88 million in the prior year quarter. The declines reflect lower international earnings, primarily in Canada in the current quarter, and discrete items recorded in the prior quarter, as we continue to record valuation allowances on U.S. losses. The tax provision predominantly reflects provisions for taxable income generated by our international operations and no income tax benefit on our U.S. losses due to a full valuation allowance. Provision for income taxes for the six months ended June 30, 2011 totaled $93 million, down from $132 million for the prior year six months. The decline reflects lower international earnings. Total assets at June 30, 2011 were $48 billion, down $3 billion from March 31, 2011 and $7 billion from a year ago. Cash and short-term investments totaled $10 billion, down $2 billion sequentially reflecting debt repayments. Loans totaled $22 billion at June 30, 2011, down $1 billion during the quarter primarily due to transfers to assets held for sale, as portfolio originations largely offset portfolio collections, and down $7 billion from last year generally due to sales. Operating lease equipment remained stable at $11 billion. Funded new business volume was $1.7 billion, up 30% sequentially and 67% from the prior year quarter, as Corporate Finance, Transportation Finance and Vendor Finance each reported double-digit percentage increases in lending/leasing volume sequentially and year-over-year. Year to date, funded new business totaled $3.1 billion, up from $1.9 billion last year. Committed new business volume was $2.1 billion, up from $1.7 billion last quarter and $1.1 billion in the prior year quarter. Year to date, committed volume was $3.8 billion, up from $2.1 billion last year. Factoring volume in our Trade Finance segment totaled $6.1 billion, essentially unchanged sequentially and down modestly from $6.3 billion in the prior year quarter as 4% growth in U.S. factoring volume was more than offset by the wind-down of our European operation. For the 2011 six months, factoring volume totaled $12.3 billion, down from $12.7 billion in the prior year. However, excluding volume from the wind-down of our European operation, factoring volume was up 3%. Credit metrics improved in the quarter. Net charge-offs and non-accrual loans were down from recent quarters and inflows to non-accrual loans also continued to decline. Net charge-offs were $56 million, down from $141 million in the prior quarter and $106 million in the 2010 second quarter. The reduction from the prior quarter was driven primarily by a $77 million decline in Corporate Finance, as the prior quarter included significant charge-offs in the energy portfolio. In addition, the current quarter includes $33 million of recoveries of post-emergence charge-offs compared to $19 million and $7 million in the prior quarter and prior year quarter, respectively. Non-accrual loans were $1.1 billion at June 30, 2011, down 19% and 48%, respectively, from the prior quarter and the prior year quarter. All segments experienced declines in relation to prior periods, with the most notable improvements in Corporate Finance. 46 FRESH START ACCOUNTING Upon emergence from bankruptcy in 2009, CIT applied Fresh Start Accounting (FSA) in accordance with generally accepted accounting principles in the United States of America (GAAP). Accretion and amortization of certain FSA adjustments are reflected in operating results and described below. The implementation of FSA resulted in the establishment of a new basis of accounting for the majority of the Company's assets and liabilities as of December 31, 2009 based upon the December 31, 2009 fair values for those assets and liabilities. The adoption of FSA also resulted in the elimination of the allowance for loan losses ("ALLL"), which was effectively recorded as discounts on loans in adjusting to then fair values. A portion of this discount is attributable to embedded credit losses at December 31, 2009. As a result, our reported charge-offs and the carrying values of our non-accrual loans are reduced in the post- emergence periods from what would have been reported without FSA. Though FSA reduced the carrying values of non-accrual loans, it did not impact the classification of the applicable loans as non-accrual loans, impaired loans or TDRs. Given this framework, FSA most impacts our Net Finance Revenue and Credit Metrics trends. Net finance revenue reflects the accretion of the FSA adjustments to the loans and leases, as well as debt, which were marked to fair value at the emergence date. Because FSA impacts the credit metrics trends, we analyze charge-offs, non-accrual / impaired loans, and TDRs both including and excluding the effects of FSA. As noted above, FSA had the effect of lowering the carrying amount of our loans and leases and eliminating the ALLL as of December 31, 2009. The ALLL increased gradually to reflect the accretion of discounts on the pre-emergence portfolio (which increases the carrying value and the need for credit reserves) and reserves on post-emergence loans and leases. Charge-offs of post-FSA (GAAP) loans are lower as their carrying value is lower compared to pre-FSA balances. Given the ongoing impact of FSA on CIT's financial statements, credit metrics, and the different business profile, the results are not generally comparable with those of other financial institutions. Whereas other financial institutions may be experiencing current credit trends resulting in declining reserves, CIT's allowance is being rebuilt. Accretable and non-accretable discounts are tracked on a loan-by-loan basis. We record the transfer of loans to assets held for sale (AHFS) in accordance with guidance in ASC 310-10-35-49. Upon transfer of a loan to AHFS, it is carried at the lower of cost or fair value, which establishes a new basis for the loan and eliminates the specific accretable and non-accretable discounts. With the elimination of the specific accretable and non-accretable discount, there is no accretable discount to accrete into income in future periods. Contractual interest earned on loans while in AHFS is recorded in Finance income. Gain or loss on the sale of the asset is recognized at the time of sale and is determined by comparing the proceeds received with the carrying value. 47 The following table presents FSA adjustments by balance sheet caption:
Fresh Start Accounting (Discount) / Premium (dollars in millions) June 30, 2011 March 31, 2011 December 31, 2010
Accretable Non-accretable Accretable Non-accretable Accretable Non-accretable
Loans $ (977.9) $ (121.5) $ (1,303.0) $ (263.9) $ (1,555.4) $ (372.2) Operating lease equipment, net (2,891.9) – (2,954.1) – (3,022.0) – Intangible assets / goodwill 84.1 264.5 99.1 277.4 119.2 277.4 Other assets (158.7) – (191.6) – (223.4) –
Total $ (3,944.4) $ 143.0 $ (4,349.6) $ 13.5 $ (4,681.6) $ (94.8)
Deposits $ 24.4 $ – $ 30.5 $ – $ 38.5 $ – Long-term borrowings (2,436.8) – (2,735.3) – (2,948.5) – Other liabilities(1) 46.4 277.0 – 313.4 – 351.6
Total $ (2,366.0) $ 277.0 $ (2,704.8) $ 313.4 $ (2,910.0) $ 351.6
(1) The accretable balance reflects a reclass of FSA discount associated with unfunded loan commitments, which had previously been included with "Loans". Prior periods have not been conformed due to system limitations. Interest income is increased by the FSA accretion on loans, which primarily relates to Corporate Finance ($0.4 billion) and Consumer ($0.4 billion). Due to the contractual maturity of the underlying loans, most accretion income will be realized within the next 2 years. In addition to the scheduled accretion on loans recorded with each scheduled payment, the decline in accretable balance was accelerated during 2011 primarily as a result of asset sales. The declines in non- accretable balance were primarily due to asset sales and prepayments, and also reflect charge-offs. Interest expense is increased by the FSA accretion of the long-term borrowings adjustment, which is recognized over the contractual maturity of the underlying debt. If the debt is repaid prior to its contractual maturity, and the repayment is accounted for as a debt extinguishment, accretion of the FSA discount on the underlying debt would be accelerated. If the repayment is accounted for as a debt modification, the FSA discount is amortized over the term of the new financing on an effective yield method. Debt maturity terms are: 2014–2017 for the Series A Notes, 2015–2017 for the Series C Notes that were exchanged from Series A and 2011–2040 for the other secured borrowings, of which over 85% is expected to be recognized by 2021. The following table summarizes the estimated scheduled FSA accretion on the first and second lien debt and secured borrowings. The table assumes repayment of the first and second lien debt on its scheduled due date. Actual results will differ from contractual realization in the event of prepayment of the first or second lien debt. Differences will also occur if the secured assets underlying the secured borrowings repay faster than obligated. The differences from the estimates could vary materially and are inherently subject to significant uncertainties that may be beyond the Company's control. Outstanding FSA Remaining
Debt Type Balance 2011 2012 2013 2014 2015 and Thereafter
First Lien Facility $ 88.3 $ 12.1 $ 19.7 $ 20.7 $ 21.9 $ 13.9 Series A Notes (834.8) (75.7) (162.9) (179.4) (163.4) (253.4) Series C Notes (exchanged) (873.0) (67.3) (144.4) (158.7) (174.4) (328.2) Secured Borrowings (763.5) (77.6) (125.3) (97.0) (79.8) (383.8) Other debt (53.8) (2.6) (2.9) (2.4) (2.5) (43.4)
Total $ (2,436.8) $ (211.1) $ (415.8) $ (416.8) $ (398.2) $ (994.9)
Depreciation expense is reduced by the accretion of the operating lease equipment discount, which relates primarily to Transportation Finance aircraft and rail operating lease assets. We estimate an economic average life before disposal of these assets of approximately 15 and 30 years, respectively. In conjunction with FSA, operating lease rentals were adjusted as of the emergence date. As a result, an intangible asset was recorded to adjust these contracts that were, in aggregate, above their market rentals rates. These adjustments (net) will be amortized, thereby lowering rental income (a component of Other Income) over the remaining lives of the lease agreements on a straight line basis. Rental income is reduced by accretion of the intangible assets, which is based on the contractual maturity of the underlying operating lease. The majority of the remaining accretion has a contractual maturity of less than two years. 48 Goodwill was recorded to reflect the excess of the reorganization equity value over the fair value of tangible and identifiable intangible assets, net of liabilities. Other assets relates primarily to a discount on a receivable from GSI in conjunction with a secured borrowing facility. The discount is accreted to Other Income over the expected payout of the receivables. Based on current estimates, approximately 75% of the remaining discount will be recognized within the next five years. Other liabilities relates primarily to a liability recorded to reflect the current fair value of aircraft purchase commitments outstanding at the time. As the aircraft are purchased, through 2018, the cost basis of the assets will be reduced by the associated liability. The following table summarizes the impact of accretion and amortization of FSA adjustments by segment on the Consolidated Statement of Operations:
Accretion / (Amortization) of Fresh Start Accounting Adjustments (dollars in millions) Corporate Transportation Trade Vendor Corporate Total Finance Finance Finance Finance Consumer and Other CIT
Quarter Ended June 30, 2011 Interest income $ 143.4 $ 19.7 $ – $ 36.4 $ 22.5 $ – $ 222.0 Interest expense (135.6) (80.9) (8.0) (37.0) (13.7) (17.3) (292.5) Rental income on operating leases – (15.1) – – – – (15.1) Depreciation expense 1.6 57.9 – 4.2 – – 63.7
FSA – net finance revenue 9.4 (18.4) (8.0) 3.6 8.8 (17.3) (21.9) Other income 25.3 5.1 – – 2.5 – 32.9
Total $ 34.7 $ (13.3) $ (8.0) $ 3.6 $ 11.3 $ (17.3) $ 11.0
Quarter Ended March 31, 2011 Interest income $ 175.1 $ 17.8 $ – $ 34.3 $ 22.5 $ – $ 249.7 Interest expense (117.6) (43.5) (3.6) (18.3) (14.4) (7.9) (205.3) Rental income on operating leases – (19.0) – – – – (19.0) Depreciation expense 1.3 57.3 – 2.7 – – 61.3
FSA – net finance revenue 58.8 12.6 (3.6) 18.7 8.1 (7.9) 86.7 Other income 24.5 4.9 – – 2.4 – 31.8
Total $ 83.3 $ 17.5 $ (3.6) $ 18.7 $ 10.5 $ (7.9) $ 118.5
Quarter Ended June 30, 2010 Interest income $ 309.6 $ 25.0 $ 2.9 $ 70.3 $ 31.2 $ 0.9 $ 439.9 Interest expense (43.3) (16.2) (1.6) (7.3) (4.6) (0.2) (73.2) Rental income on operating leases – (26.6) – – – – (26.6) Depreciation expense 4.1 59.4 – 7.5 – – 71.0
FSA – net finance revenue 270.4 41.6 1.3 70.5 26.6 0.7 411.1 Other income 18.4 3.7 – – 1.8 – 23.9
Total $ 288.8 $ 45.3 $ 1.3 $ 70.5 $ 28.4 $ 0.7 $ 435.0
Six Months Ended June 30, 2011 Interest income $ 318.5 $ 37.5 $ – $ 70.7 $ 45.0 $ – $ 471.7 Interest expense (253.2) (124.4) (11.6) (55.3) (28.1) (25.2) (497.8) Rental income on operating leases – (34.1) – – – – (34.1) Depreciation expense 2.9 115.2 – 6.9 – – 125.0
FSA – net finance revenue 68.2 (5.8) (11.6) 22.3 16.9 (25.2) 64.8 Other income 49.8 10.0 – – 4.9 – 64.7
Total $ 118.0 $ 4.2 $ (11.6) $ 22.3 $ 21.8 $ (25.2) $ 129.5
Six Months Ended June 30, 2010 Interest income $ 676.1 $ 54.0 $ 9.6 $ 135.8 $ 64.0 $ 0.1 $ 939.6 Interest expense (90.1) (45.2) (3.5) (18.4) (10.9) 0.2 (167.9) Rental income on operating leases – (52.8) – – – – (52.8) Depreciation expense 6.3 116.8 – 16.4 – – 139.5
FSA – net finance revenue 592.3 72.8 6.1 133.8 53.1 0.3 858.4 Other income 45.9 9.2 – – 4.5 0.1 59.7
Total $ 638.2 $ 82.0 $ 6.1 $ 133.8 $ 57.6 $ 0.4 $ 918.1
49
NET FINANCE REVENUE(2) The following tables present management's view of consolidated margin and include the net interest spread we make on loans and on the equipment we lease, in dollars and as a percent of average earning assets(2).
Net Finance Revenue (dollars in millions) Quarters Ended Six Months Ended
June 30, March 31, June 30, June 30, June 30,
2011 2011 2010 2011 2010
Interest income $ 602.1 $ 643.2 $ 1,023.8 $ 1,245.3 $ 2,128.5 Rental income on operating leases 417.9 413.3 417.9 831.2 843.7
Finance revenue 1,020.0 1,056.5 1,441.7 2,076.5 2,972.2 Interest expense (805.7) (698.9) (807.5) (1,504.6) (1,638.9) Depreciation on operating lease equipment (145.5) (160.5) (178.1) (306.0) (350.8)
Net finance revenue $ 68.8 $ 197.1 $ 456.1 $ 265.9 $ 982.5
Average Earnings Assets ("AEA") $ 34,477.8 $ 35,194.1 $ 42,211.9 $ 34,846.0 $ 43,674.7
As a % of AEA: Interest income 6.99% 7.31% 9.70% 7.15% 9.75% Rental income on operating leases 4.85% 4.70% 3.96% 4.77% 3.86%
Finance revenue 11.84% 12.01% 13.66% 11.92% 13.61% Interest expense (9.35)% (7.94)% (7.65)% (8.63)% (7.50)% Depreciation on operating lease equipment (1.69)% (1.83)% (1.69)% (1.76)% (1.61)%
Net finance revenue 0.80% 2.24% 4.32% 1.53% 4.50%
As a % of AEA by Segment: Corporate Finance 3.06% 5.00% 7.39% 4.05% 7.58% Transportation Finance 1.53% 1.99% 1.75% 1.76% 1.43% Trade Finance (3.25)% (2.50)% (5.89)% (2.90)% (4.06)% Vendor Finance 5.27% 7.32% 8.79% 6.32% 9.43% Commercial Segments 2.44% 3.73% 4.98% 3.09% 5.26% Consumer 1.03% 0.88% 1.64% 0.96% 1.42% Average earning assets are less than comparable balances in Average Balance Sheet tables displayed later in this document due to the exclusion of deposits with banks and other investments offset by the inclusion of credit balances of factoring clients. Net finance revenue declined during the quarter due to lower earning assets and reduced benefit from FSA accretion. Average earning assets were down $0.7 billion from the prior quarter and $7.7 billion from the 2010 second quarter. FSA accretion related to net finance revenue declined $109 million sequentially and $433 million from the prior year quarter driven by lower assets and higher accretion on debt prepayments. As a percentage of average earning assets, net finance revenue was down from the prior quarter as the reduced benefit from FSA accretion in interest income and costs associated with liability restructuring more than offset the benefits from paying off high cost debt. When compared to the prior year quarter, the impact of FSA was partially offset by higher receipts related to a total return swap, which in turn caused a reduction in interest expense. New business yields in Vendor Finance remain in low double-digits, though down from last quarter. Transportation Finance yields benefited from completion of certain aircraft redeployment, higher rail utilization and lower aircraft maintenance costs, partially offset by some pressure on equipment renewal rates, which were below the average rate for the portfolios. Corporate Finance lending yields were under
(2) Net finance revenue and average earning assets are non-GAAP measures; see reconciliation of non-GAAP to GAAP financial information.
50 modest pressure. Segment portfolio margins are discussed in the individual segment performance commentaries. Interest expense for the 2011 second quarter included prepayment fees of $50 million on the redemption of $2.5 billion of 7% Series A Second Lien Notes. This redemption included approximately $1.1 billion principal amount of remaining 2013 Series A Notes and $1.4 billion principal amount of the 2014 Series A Notes. The acceleration of FSA amortization on the 2013 and 2014 maturities added approximately $66 million and $47 million, respectively, to interest expense. Interest expense for the 2011 first quarter included prepayment fees of $35 million on the redemption of $1.0 billion of the Series A Notes due in 2013 and the remaining $0.75 billion of 10.25% Series B Notes. The Series A and Series B Note prepayments also resulted in the acceleration of FSA amortization/ (accretion) of $25 million and $(14) million, respectively, which resulted in a net increase of $11 million to interest expense. Additional second lien prepayments will result in acceleration of FSA amortization of debt discount (if the prepayment is accounted for as a debt extinguishment) and prepayment fees on Series A Notes if they are redeemed before January 1, 2012. In July, we redeemed $500 million of the $3 billion senior secured first lien term loan. The net impact of the acceleration of deferred debt costs and the favorable FSA amortization will increase third quarter interest expense by approximately $15 million. In March 2011, we issued $2 billion of new secured Series C Notes, consisting of $1.3 billion of three year 5.25% fixed rate notes and $700 million of seven year 6.625% fixed rate notes.
Adjusted Net Finance Revenue as a % of AEA Quarters Ended June 30, 2011 March 31, 2011 June 30, 2010
Net finance revenue $ 68.8 0.80% $ 197.1 2.24% $ 456.1 4.32% FSA impact on net finance revenue 21.9 0.13% (86.7) (1.13)% (411.1) (3.95)% Secured debt prepayment penalty fee 50.0 0.52% 35.0 0.35% 45.0 0.36%
Adjusted net finance revenue $ 140.7 1.45% $ 145.4 1.46% $ 90.0 0.73%
Six Months Ended June 30, 2011 June 30, 2010
Net finance revenue $ 265.9 1.53% $ 982.5 4.50% FSA impact on net finance revenue (64.8) (0.51)% (858.4) (4.02)% Secured debt prepayment penalty fee 85.0 0.43% 60.0 0.24%
Adjusted net finance revenue $ 286.1 1.45% $ 184.1 0.72%
Net Finance Margin excluding FSA and prepayment penalty impacts was basically flat with the first quarter at 1.45% of average earning assets. However, changes in the components included increased asset yields of approximately 15 basis points driven by Corporate Finance, which had an interest recovery on a prior charge-off, and Transportation Finance, which benefited from the redeployment of aircraft associated with a bankrupt carrier and increased rail utilization. However, those benefits were offset by higher funding costs as second quarter interest expense included costs related to liability restructuring actions and reduced benefits from prepayments on the Total Return Swap. On a normalized basis, margin was consistent with the first quarter. The margin continues to be impacted by our changing business mix, in which cash, liquid investments and student loans continues to represent a significant portion of the overall balance sheet and the declining net returns on the total return swap. As we return to growth in each of our core segments and utilize the liquidity and the student loans run-off, the mix will shift and should benefit the margin. In addition, the ability to refinance the 7% Series 51 A debt to a more economical rate and continue to utilize the lower funding costs at CIT Bank should also be beneficial.
Net Operating Lease Revenue as a % of Average Operating Leases (AOL) (dollars in millions) Quarters Ended Six Months Ended
June 30, March 31, June 30, June 30, June 30,
2011 2011 2010 2011 2010
Rental income on operating leases 15.17% 14.84% 15.23% 15.00% 15.39% Depreciation on operating lease equipment (5.28)% (5.76)% (6.49)% (5.52)% (6.40)%
Net operating lease revenue % 9.89% 9.08% 8.74% 9.48% 8.99%
Net operating lease revenue %, excluding FSA 6.42% 5.96% 5.54% 6.18% 5.75%
Net operating lease revenue $ 272.4 $ 252.8 $ 239.8 $ 525.2 $ 492.9
Average Operating Lease Equipment ("AOL") $ 11,017.7 $ 11,139.5 $ 10,973.5 $ 11,084.1 $ 10,962.5
Net operating lease revenue(3) increased from the prior quarter, reflecting improvements in Transportation Finance. The 2011 second quarter benefited from improved equipment utilization and yields, however there was some pressure on renewal rates. Aerospace benefited from redeployment of aircraft and lower maintenance costs relating to non-recurring corrections of prior period items, while rail rentals improved and depreciation declined due to scrapping older cars. All commercial aircraft were leased at June 30, 2011. Rail fleet utilization, including commitments, increased to 96% from 95% at March 31, 2011 and 93% a year ago. The 2011 results also benefit from lower depreciation, primarily in the Vendor Finance business, as a result of certain operating leases being recorded as available for sale. When a long-lived asset is classified as held for sale, depreciation expense is no longer recognized but the asset is evaluated for impairment with any such charge recorded in other income. As a result, net operating lease revenue includes rental income on operating leases, but not depreciation on operating lease equipment. Operating lease equipment in assets held for sale totaled $326 million at March 31, 2011 primarily reflecting the transfer of aerospace equipment at the end of that quarter, for which all depreciation had been recorded. The amount of depreciation not recognized on equipment in assets held for sale in the 2011 second quarter was approximately $11 million. At June 30, 2011 we had $427 million of equipment in assets held for sale, primarily reflecting aerospace equipment and assets relating to the previously announced Dell Europe platform sale. Operating lease equipment in assets held for sale totaled $85 million as of December 31, 2010. The amount of depreciation related to these assets that would have been recorded in the first quarter, had they not been classified as held for sale, was approximately $13 million.
CREDIT METRICS Management analyzes credit trends both before and after FSA in order to provide comparability with our longer-term credit trends (which included pre- emergence / historical accounting) and credit trends experienced by other market participants.
(3) Net operating lease revenue is a non-GAAP measure, see reconciliation of non-GAAP to GAAP financial information.
52 Non-accrual loans were $1.1 billion at June 30, 2011, down 19% and 48%, respectively, from the prior quarter and the prior year quarter. All segments experienced declines in relation to prior periods, with the most notable improvements in Corporate Finance. New inflows into non-accrual declined approximately 45% and 65% from the prior quarter and the fourth quarter 2010, respectively. Net charge-offs were $56 million, down from $141 million in the prior quarter and $106 million in the 2010 second quarter. The reduction from the prior quarter was driven primarily by a $77 million decline in Corporate Finance, as the prior quarter included significant charge-offs in the energy portfolio. In addition, the current quarter includes $33 million of recoveries of post-emergence charge-offs compared to $19 million and $7 million in the prior quarter and prior year quarter, respectively. The provision for credit losses was $85 million in the 2011 second quarter, down from $123 million last quarter and $247 million in the prior year quarter, largely reflecting the reduced net charge-offs. Net charge-offs and the provision for credit losses do not reflect $25 million, $32 million and $113 million of recoveries of pre-emergence charge-offs recorded in other income for the 2011 second and first quarters and the second quarter of 2010, respectively. Management also evaluates credit performance using credit metrics that exclude the impact of FSA. On this basis, gross charge-offs were $97 million, down from $210 million in the prior quarter and $252 million in the prior year quarter. On the same basis, non-accrual loans of $1.4 billion decreased from $1.6 billion at March 31, 2011 and $3.0 billion at June 30, 2010. As a result of adopting FSA, the allowance for loan losses at December 31, 2009 was eliminated and effectively recorded as discounts on loans as part of the fair value of finance receivables. A portion of the discount attributable to embedded credit losses in pre-emergence credit impaired loans was recorded as non- accretable discount and is utilized as such losses occur, primarily on impaired, non-accrual loans. Any incremental deterioration of loans in this group results in incremental provisions or charge-offs. Improvements or increases in forecasted cash flows in excess of the accretable discount reduce any allowance on the loan established after emergence from bankruptcy (if any) and cause a reclassification from non-accretable to accretable discount with a go-forward recognition as finance income over the remaining life of the account. Once such allowance (if any) has been reduced and the account is returned to accruing status, the non-accretable discount is reclassified to accretable discount and is recorded as finance income over the remaining life of the account. For performing pre-emergence loans, an allowance for loan losses is established to the extent the net carrying value (after FSA discount) is not deemed to be recoverable. The allowance for loan losses is intended to provide for losses inherent in the portfolio based on estimates of the ultimate outcome of collection efforts, realization of collateral values, and other pertinent factors, such as estimation risk related to performance in prospective periods. We may make adjustments to the allowance depending on general economic conditions and specific industry weakness or trends in our portfolio credit metrics, including non-accrual loans and charge-off levels and realization rates on collateral. Our allowance for loan losses includes: (1) specific reserves for impaired loans, (2) non-specific reserves for estimated losses inherent in non-impaired loans based on historic loss experience and our estimates of projected loss levels and (3) a qualitative adjustment to the reserve for economic risks, industry and geographic concentrations, and other factors. Our policy is to recognize losses through charge-offs when there is high likelihood of loss after considering the borrower's financial condition, underlying collateral and guarantees, and the finalization of collection activities. Qualitative adjustments largely related to instances where management believes that the Company's current risk ratings in selected portfolios do not fully reflect the corresponding inherent risk. The qualitative adjustments did not exceed 10% of the total allowance at any of the presented periods. Management evaluates the adequacy of the reserves on an overall basis and in light of this assessment, may record additional qualitative components. The qualitative adjustments were recorded by class, 53 primarily in Corporate Finance – Other at June 30, 2011 and December 31, 2010 and also Corporate Finance – SBL at December 31, 2010, and included in the allowance for loan losses. See Risk Factors in our December 31, 2010 Form 10-K for additional discussion on allowance for loan losses. The following table presents detail on our allowance for loan losses, including charge-offs and recoveries: (dollars in millions) Quarter Ended Six Months Ended
June 30, March 31, June 30, June 30, June 30, 2010 2011 2011 2010 2011
Allowance balance – beginning of period $ 402.5 $ 416.2 $ 213.9 $ 416.2 $ –
Provision for credit losses(1) 84.7 123.4 246.7 208.1 472.8 Change related to new accounting guidance(2) – – – – 68.6 Changes relating to foreign currency translation, other(1) (7.5) 3.5 2.6 (4.0) (0.7)
Net additions 77.2 126.9 249.3 204.1 540.7
Gross charge-offs(3) (88.3) (159.4) (113.3) (247.7) (193.0) Recoveries(4) 32.6 18.8 7.0 51.4 9.2
Net Charge-offs (55.7) (140.6) (106.3) (196.3) (183.8)
Allowance – end of period $ 424.0 $ 402.5 $ 356.9 $ 424.0 $ 356.9
Loans Commercial Segments loans $ 15,259.0 $ 15,837.8 $ 20,599.0 Consumer loans 7,025.7 7,898.9 8,789.6
Total loans $ 22,284.7 $ 23,736.7 $ 29,388.6
Allowance Commercial Segments $ 424.0 $ 402.5 $ 356.9 Consumer – – –
Total Allowance for credit losses $ 424.0 $ 402.5 $ 356.9
(1) Includes amounts related to reserves on unfunded loan commitments, which are reflected in other liabilities. (2) Reflects reserves associated with loans consolidated in accordance with 2010 adoption of accounting guidance on consolidation of variable interest entities. (3) Gross charge-offs include $40 million that were charged directly to the specific allowance for loan losses for the June 30, 2011 quarter, of which $36 million related to Corporate Finance with the remainder primarily related to Trade Finance. Amounts for the six month period were $115 million, of which $106 million related to Corporate Finance and the remainder related to Trade Finance. (4) Recoveries do not include $24.7 million, $31.7 million, and $113.1 million recorded in Other Income on amounts that were charged off prior to bankruptcy for the quarters ended June 30, 2011, March 31, 2011 and June 30, 2010, respectively and $56.4 million and $157.1 million for the six months ended June 30, 2011 and 2010, respectively. In addition to amounts related to pre-emergence loans, the allowance and provision also include amounts related to finance receivables originated subsequent to emergence. The following table summarizes the components of the provision and allowance: Provision for Credit Losses
(dollars in millions) Quarters Ended Six Months Ended
June 30, March 31, June 30, June 30, June 30, 2011 2011 2010 2011 2010
Specific reserves – impaired loans $ (20.0) $ (28.4) $ 27.8 $ (48.4) $ 56.2 Non-specific reserves 49.0 11.2 112.6 60.2 232.8 Charge-offs 55.7 140.6 106.3 196.3 183.8
Totals $ 84.7 $ 123.4 $ 246.7 $ 208.1 $ 472.8
Allowance for Loan Losses
June 30, March 31, December 31, (dollars in millions) 2011 2011 2010
Specific reserves – impaired loans $ 72.9 $ 92.9 $ 121.3 Non-specific reserves 351.1 309.6 294.9
Totals $ 424.0 $ 402.5 $ 416.2
The allowance for loan losses increased $22 million from the prior quarter and $8 million from December 31, 2010, reflecting increases in non-specific, and decreases in specific reserves in both quarters. The 54 increase in non-specific reserves during the quarter ended June 30, 2011 resulted from reserves on new volume exceeding reserve release on pre-FSA loan runoff, as reserve requirements on pre-emergence loans are supplemented by FSA discount. Non-specific provisioning during the current quarter also reflected increased loss estimates in a specific Canadian portfolio in Corporate Finance. The provision for credit losses for the quarter ended June 30, 2010 included reserves related to a liquidating consumer portfolio in Vendor Finance. As a percentage of finance receivables at June 30, 2011, the allowance was 1.9%, versus 1.7% in the prior two quarters. Management also analyzes the amount of coverage on a pre-FSA basis by combining the non-accretable discount balance and the allowance for loan losses. On this basis, the second quarter ratio of total allowance and non-accretable FSA discount to pre-FSA loans was 2.3%, down from 2.6% in prior quarter and 3.0% at December 31, 2010. For the commercial segments, total reserves on this basis were 3.4%, 3.9% and 4.4% as of June 30, 2011, March 31, 2011 and December 31, 2010, respectively. The consumer segment has lower reserves because it consists primarily of U.S. Government guaranteed loans. FSA discount and allowance balances by segment are presented in the following tables: Finance FSA – Finance Allowance Net
Receivables FSA – Accretable Non-accretable Receivables for Credit Carrying
pre FSA Discount Discount(1) post FSA Losses Value
June 30, 2011 Corporate Finance $ 7,883.0 $ (360.5) $ (98.6) $ 7,423.9 $ (277.9) $ 7,146.0 Transportation Finance 1,458.5 (101.0) (1.2) 1,356.3 (29.1) 1,327.2 Trade Finance 2,538.4 – – 2,538.4 (35.3) 2,503.1 Vendor Finance 4,047.7 (93.2) (14.1) 3,940.4 (81.7) 3,858.7
Commercial Segments 15,927.6 (554.7) (113.9) 15,259.0 (424.0) 14,835.0 Consumer 7,456.5 (423.2) (7.6) 7,025.7 – 7,025.7
Total $ 23,384.1 $ (977.9) $ (121.5) $ 22,284.7 $ (424.0) $ 21,860.7
March 31, 2011 Corporate Finance $ 8,712.6 $ (586.3) $ (230.2) $ 7,896.1 $ (263.8) $ 7,632.3 Transportation Finance 1,405.0 (120.7) (1.7) 1,282.6 (24.7) 1,257.9 Trade Finance 2,622.6 – – 2,622.6 (29.6) 2,593.0 Vendor Finance 4,180.1 (120.2) (23.4) 4,036.5 (84.4) 3,952.1
Commercial Segments 16,920.3 (827.2) (255.3) 15,837.8 (402.5) 15,435.3 Consumer 8,383.3 (475.8) (8.6) 7,898.9 – 7,898.9
Total $ 25,303.6 $ (1,303.0) $ (263.9) $ 23,736.7 $ (402.5) 23,334.2
December 31, 2010 Corporate Finance $ 9,571.3 $ (763.4) $ (325.7) $ 8,482.2 $ (303.7) $ 8,178.5 Transportation Finance 1,536.8 (146.1) (1.8) 1,388.9 (23.7) 1,365.2 Trade Finance 2,387.4 – – 2,387.4 (29.9) 2,357.5 Vendor Finance 4,348.0 (147.3) (34.6) 4,166.1 (58.9) 4,107.2
Commercial Segments 17,843.5 (1,056.8) (362.1) 16,424.6 (416.2) 16,008.4 Consumer 8,584.6 (498.6) (10.1) 8,075.9 – 8,075.9
Total $ 26,428.1 $ (1,555.4) $ (372.2) $ 24,500.5 $ (416.2) $ 24,084.3
(1) Non-accretable discount includes certain accretable discount amounts relating to non-accrual loans for which accretion has been suspended.
55 The following table presents charge-offs, by business segment. See Results by Business Segment for additional information. Quarters Ended Six Months Ended
June 30, 2011 March 31, 2011 June 30, 2010 June 30, 2011 June 30, 2010
Gross Charge-offs Corporate Finance $ 53.3 2.76% $ 125.0 6.09% $ 53.2 1.82% $ 178.3 4.47% $ 115.4 1.89% Transportation Finance 0.1 0.01% 0.7 0.22% – – 0.8 0.11% – – Trade Finance 4.2 0.66% 6.2 1.05% 12.5 1.90% 10.4 0.85% 15.2 1.12% Vendor Finance 29.5 2.96% 26.3 2.56% 38.2 2.38% 55.8 2.76% 48.5 1.36%
Commercial Segments 87.1 2.23% 158.2 3.95% 103.9 1.85% 245.3 3.10% 179.1 1.50% Consumer 1.2 0.06% 1.2 0.06% 9.4 0.42% 2.4 0.06% 13.9 0.30%
Total 88.3 1.52% 159.4 2.66% 113.3 1.44% 247.7 2.10% 193.0 1.17%
Recoveries Corporate Finance 13.4 0.70% 8.0 0.39% 1.3 0.05% 21.4 0.54% 2.7 0.05% Transportation Finance 0.1 0.01% – – – – 0.1 0.01% – – Trade Finance 6.3 0.98% 1.9 0.31% 0.1 0.01% 8.2 0.67% 0.1 0.01% Vendor Finance 12.5 1.27% 8.6 0.83% 5.5 0.34% 21.1 1.05% 6.3 0.18%
Commercial Segments 32.3 0.83% 18.5 0.46% 6.9 0.13% 50.8 0.64% 9.1 0.08% Consumer 0.3 0.01% 0.3 0.01% 0.1 – 0.6 0.01% 0.1 –
Total 32.6 0.56% 18.8 0.32% 7.0 0.08% 51.4 0.44% 9.2 0.06%
Net Charge-offs Corporate Finance 39.9 2.06% 117.0 5.70% 51.9 1.77% 156.9 3.93% 112.7 1.84% Transportation Finance – – 0.7 0.20% – – 0.7 0.10% – – Trade Finance (2.1) (0.32)% 4.3 0.74% 12.4 1.89% 2.2 0.18% 15.1 1.11% Vendor Finance 17.0 1.69% 17.7 1.73% 32.7 2.04% 34.7 1.71% 42.2 1.18%
Commercial Segments 54.8 1.40% 139.7 3.49% 97.0 1.72% 194.5 2.46% 170.0 1.42% Consumer 0.9 0.05% 0.9 0.05% 9.3 0.42% 1.8 0.05% 13.8 0.30%
Total $ 55.7 0.96% $ 140.6 2.34% $ 106.3 1.36% $ 196.3 1.66% $ 183.8 1.11%
Supplemental Non-U.S. Commercial Disclosure Gross Charge-offs $ 38.6 $ 25.2 $ 32.6 $ 63.8 $ 39.9 Recoveries $ 9.0 $ 4.2 $ 4.0 $ 13.2 $ 4.5
Gross Charge-offs (pre-FSA) as a Percentage of Average Finance Receivables (dollars in millions) Quarters Ended Six Months Ended
June 30, 2011 March 31, 2011 June 30, 2010 June 30, 2011 June 30, 2010
Corporate Finance $ 59.5 2.82% $ 167.7 7.31% $ 164.2 4.75% $ 227.2 5.16% $ 300.1 4.17% Transportation Finance 0.1 0.01% 0.7 0.20% – – 0.8 0.11% – – Trade Finance 4.2 0.66% 6.2 1.05% 12.5 1.90% 10.4 0.85% 17.2 1.26% Vendor Finance 30.2 2.93% 32.4 3.04% 55.1 3.19% 62.6 2.98% 123.0 3.20%
Commercial Segments 94.0 2.27% 207.0 4.79% 231.8 3.66% 301.0 3.55% 440.3 3.28% Consumer 3.4 0.17% 3.3 0.16% 19.8 0.79% 6.7 0.16% 48.4 0.94%
Total $ 97.4 1.58% $ 210.3 3.27% $ 251.6 2.85% $ 307.7 2.44% $ 488.7 2.63%
Corporate Finance gross charge-offs in the current quarter included write-offs in a specific Canadian portfolio, while prior quarter charge-offs were concentrated in the energy sector. Transportation Finance had a minimal level of charge-offs in all periods presented, as the majority of assets in this segment are operating leases. Trade Finance reported a net recovery for the quarter, primarily reflecting the work out of two large accounts. Vendor Finance net charge-offs were essentially unchanged from last quarter, following the policy refinement in the fourth quarter which accelerated delinquency-based charge- offs to 150 days from the previous 180 days. The Vendor Finance prior year quarter charge-offs were driven by smaller loan balances. Consumer charge-offs were down from prior periods, due to reduced charge-offs in the private student loan portfolio, as charge-offs were virtually fully-absorbed by FSA discount through the sale of the portfolio in the 2010 fourth quarter. As a result, the Consumer portfolio consists primarily of student loans that are 97%-98% guaranteed by the U.S. government, thereby mitigating our ultimate credit risk. 56 The tables below present information on non-performing loans, which includes assets held for sale for each period:
Non-accrual and Past Due Loans (dollars in millions) June 30, 2011 March 31, 2011 December 31, 2010
Non-accrual loans U.S. $ 870.1 $ 1,068.0 $ 1,336.1 Foreign 190.9 237.1 279.2
Commercial Segments 1,061.0 1,305.1 1,615.3 Consumer 0.8 0.9 0.7
Non-accrual loans $ 1,061.8 $ 1,306.0 $ 1,616.0
Troubled Debt Restructurings U.S. $ 317.1 $ 367.2 $ 412.4 Foreign 37.0 36.8 49.3
Restructured loans $ 354.1 $ 404.0 $ 461.7
Accruing loans past due 90 days or more Government guaranteed accruing student loans past due 90 days or more $ 399.0 $ 449.2 $ 433.6 Other accruing loans past due 90 days or more 5.6 4.5 1.7
Total accruing loans past due 90 days or more $ 404.6 $ 453.7 $ 435.3
Non-accrual loans (post-FSA) as a Percentage of Finance Receivables (dollars in millions) Held for Held for
Investment Sale Total
June 30, 2011 Corporate Finance $ 512.3 6.90% $ 292.1 $ 804.4 10.84% Transportation Finance 56.0 4.13% – 56.0 4.13% Trade Finance 73.4 2.89% – 73.4 2.89% Vendor Finance 95.0 2.41% 32.2 127.2 3.23%
Commercial Segments 736.7 4.83% 324.3 1,061.0 6.95% Consumer 0.2 – 0.6 0.8 0.01%
Total 736.9 3.31% 324.9 1,061.8 4.76%
March 31, 2011 Corporate Finance $ 872.2 11.05% $ 131.9 $ 1,004.1 12.72% Transportation Finance 62.1 4.84% – 62.1 4.84% Trade Finance 98.0 3.74% – 98.0 3.74% Vendor Finance 107.9 2.67% 33.0 140.9 3.49%
Commercial Segments 1,140.2 7.20% 164.9 1,305.1 8.24% Consumer 0.9 0.01% – 0.9 0.01%
Total $ 1,141.1 4.81% $ 164.9 $ 1,306.0 5.50%
December 31, 2010 Corporate Finance $ 1,183.7 13.95% $ 56.1 $ 1,239.8 14.62% Transportation Finance 63.2 4.55% – 63.2 4.55% Trade Finance 164.4 6.89% – 164.4 6.89% Vendor Finance 120.6 2.89% 27.3 147.9 3.55%
Commercial Segments 1,531.9 9.33% 83.4 1,615.3 9.84% Consumer 0.4 0.01% 0.3 0.7 0.01%
Total $ 1,532.3 6.25% $ 83.7 $ 1,616.0 6.60%
Non-accrual Loans(1) (pre-FSA) as a Percentage of Finance Receivables (dollars in millions) June 30, 2011 March 31, 2011 December 31, 2010
Corporate Finance $ 1,072.4 13.60% $ 1,282.3 14.72% $ 1,604.0 16.76% Transportation Finance 63.5 4.36% 70.2 5.00% 71.3 4.64% Trade Finance 73.4 2.89% 98.0 3.74% 164.4 6.89% Vendor Finance 164.7 4.07% 185.8 4.44% 174.9 4.02%
Commercial Segments 1,374.0 8.63% 1,636.3 9.67% 2,014.6 11.29% Consumer 1.0 0.01% 0.9 0.01% 1.0 0.01%
Total $ 1,375.0 5.88% $ 1,637.2 6.47% $ 2,015.6 7.63%
(1) Reflects balances before fresh start accounting for non-accrual balances in Held for Investment and carrying value of balances in Held for Sale.
57 See Non-GAAP Financial Measurements for reconciliation to GAAP measurement. Non-accrual loans, on both a post- and pre-FSA basis, declined in amount and as a percentage of finance receivables from the prior quarter and the prior year quarter, reflecting continued workouts and asset sales. All segments experienced declines in relation to prior periods with the most notable improvements in Corporate Finance. Approximately 80% of our non-accrual accounts were paying currently at June 30, 2011, and our impaired loan carrying value (including FSA discount, specific reserves and charge-offs) to estimated outstanding contractual balances approximated 46%. For this purpose, impaired loans are comprised of non-accrual loans over $500,000 and TDR's. Foregone Interest on Non-accrual Loans and Troubled Debt Restructurings (dollars in millions) Six months ended June 30, 2011
U.S. Foreign Total
Interest revenue that would have earned at original terms $ 107.4 $ 15.6 $ 123.0 Interest recorded 6.8 3.0 9.8
Foregone interest revenue $ 100.6 $ 12.6 $ 113.2
The Company periodically modifies the terms of loans / finance receivables in response to borrowers' difficulties. Modifications that include a financial concession to the borrower, which otherwise would not have been considered, are accounted for as Troubled Debt Restructurings ("TDR"). For those accounts that were modified but were not considered to be TDRs, it was determined that either the borrower was not in financial difficulty or for those modifications where the borrower was in financial difficulty no concessions had been granted by CIT to the borrower. CIT uses a consistent methodology across all loans to determine if a modification is with a borrower that has been determined to be in financial difficulty and was granted a concession. Specifically, our policies on TDR identification include the following examples of indicators used to determine whether the borrower is in financial difficulty: • Borrower is in default • Borrower has declared bankruptcy • Growing doubt about the borrower's ability to continue as a going concern • Borrower has insufficient cash flow to service debt • Borrower is de-listing securities • Borrower's inability to obtain funds from other sources • Breach of financial covenants by the borrower If the borrower is determined to be in financial difficulty, then CIT utilizes the following criteria to determine whether a concession has been granted to the borrower: • Assets used to satisfy debt are less than CIT's recorded investment in the receivable • Modification of terms – interest rate changed to below market rate • Maturity date extension at an interest rate less than market rate • Capitalization of interest • Increase in interest reserves • Conversion of credit to Payment-In-Kind (PIK) • Delaying principal and/or interest for a period of three months or more • Partial forgiveness of the balance or charge-off Modified loans that are classified as TDRs are individually evaluated and measured for impairment. Modified loans that do not meet the definition of a TDR are subject to our standard impaired loan policy, namely that non-accrual loans in excess of $500,000 are individually reviewed for impairment, while non- accrual loans less than $500,000 are considered as part of homogenous pools and are included in the non-specific allowance. 58 Borrower compliance with the modified terms is the primary measurement that we use to determine the success of these programs. The discussion and tables that follow reflect loan carrying values as of June 30, 2011 of accounts that have been modified. These balances are further detailed in the following table. Trouble Debt Restructurings and Modifications (dollars in millions) June 30, 2011 December 31, 2010
Excluding FSA Including FSA % Compliant Excluding FSA Including FSA % Compliant
Trouble Debt Restructurings Deferral of interest $ 362.9 $ 282.0 78% $ 345.8 $ 247.9 86% and/or principal Debt forgiveness/interest 34.3 19.5 72% 75.2 52.8 96% rate reductions Debt exchange 10.2 7.3 36% 27.8 22.9 20% Covenant relief and other 52.8 45.3 93% 161.0 138.1 61%
$ 460.2 $ 354.1 79% $ 609.8 $ 461.7 76%
Percent non accrual 94% 92% 95% 95%
June 30, 2011 December 31, 2010(2)
Modifications(1) Excluding FSA % Compliant Excluding FSA % Compliant
Interest rate increase/ $ 47.2 100% $ 171.0 100% additional collateral Extended maturity 273.9 100% 93.0 100% Covenant relief 172.6 100% 61.4 100% Principal deferment 3.7 96% 19.1 98% Debt exchange – – 14.2 100% Forbearance agreement 12.2 100% 25.9 0% Other 43.4 98% 30.9 100%
$ 553.0 100% $ 415.5 94%
Percent non accrual 12% 37%
(1) Table depicts the predominant element of modification which may contain several of the characteristics listed.
(2) The 2010 balances were conformed to the current presentation.
59 OTHER INCOME Total Other Income includes Rental Income on Operating Leases and Other. Rental income on operating leases increased from the prior quarter reflecting improvements in the aircraft and rail transportation portfolios. See "Net Finance Revenues" and "Financing and Leasing Assets – Results by Business Segment" and "Concentrations – Operating Leases" for additional information. Other income decreased from the prior quarter and was impacted by mark-to-market valuations on non-qualifying hedge derivatives, as well as a lower level of recoveries on receivables charged-off prior to adoption of FSA. Prior year quarter benefited from $113.1 million of recoveries on pre-FSA charge-offs. The following table presents the "Other" components.
Other Income (dollars in millions) Quarters Ended Six Months Ended
June 30, March 31, June 30, June 30, June 30,
2011 2011 2010 2011 2010
Gains on loan and portfolio sales $ 89.8 $ 73.9 $ 75.1 $ 163.7 $ 112.1 Fees and other revenue 40.0 27.2 29.5 67.2 68.8 Counterparty receivable accretion 32.9 31.8 23.9 64.7 59.7 Factoring commissions 30.9 33.8 34.9 64.7 71.1 Recoveries of pre-FSA charge-offs 24.7 31.7 113.1 56.4 157.1 Net gains on sales of leasing equipment 19.7 40.0 54.2 59.7 82.1 Net gains on investment sales 11.0 16.9 4.1 27.9 7.4 Gain (loss) on non-qualifying hedge derivatives and foreign currency exchange (9.1) 22.9 3.7 13.8 (69.4)
Total $ 239.9 $ 278.2 $ 338.5 $ 518.1 $ 488.9
Gains on loan and portfolio sales reflect amounts received in excess of current net asset carrying values. During the quarter, we continued to opportunistically sell loans, including non-accrual loans. Loans sold during the 2011 second quarter totaled $454 million, consisting of $280 million in Vendor Finance, $157 million in Corporate Finance and $17 million in Transportation Finance. Loans sold last quarter totaled $547 million, while 2010 second quarter loans sales were $1,584 million. Gain as a percentage of loans sold in the 2011 second quarter benefited from sales of Corporate Finance nonaccrual loans that were in held for sale. Fees and other revenue are comprised of asset management, agent and advisory fees, and servicing fees, as well as income from joint ventures. The current quarter includes a non-recurring benefit of $11 million related to a change in the aircraft order book and corresponding acceleration of FSA. Counterparty receivable accretion primarily relates to the accretion of a fair value mark on the receivable from GSI related to a secured borrowing facility. See Note 5 — Long-term Borrowings. Factoring commissions declined, primarily due to lower surcharges reflecting the gradual improvement in the retail credit environment. Recoveries of pre-FSA charge-offs reflects repayments or other workout resolutions on loans charged off prior to emergence from bankruptcy. These recoveries are recorded as other income, not as a reduction to the provision for loan losses. Net gains on sales of leasing equipment resulted from sales volume of $224 million in the 2011 second quarter versus $196 million last quarter and $193 million in the 2010 second quarter. Equipment sales for 60 the 2011 second quarter consisted of $153 million in Vendor Finance assets, $38 million in Corporate Finance assets and $33 million in Transportation Finance assets. Gains as a percentage of equipment sold were less than prior quarter due to a decrease in Vendor Finance equipment sale gain percentage. Net gains on investment sales for the 2011 first and second quarter reflect sales of equity investments, primarily in Corporate Finance. Gains and losses on non-qualifying derivatives and foreign currency exchange largely are driven by transactional exposures and economic hedges that do not qualify for hedge accounting, and losses on interest rate swaps that arose from the bankruptcy, when most of our derivative transactions were terminated. The second quarter 2011 net losses of $9 million reflect $35 million of losses on non-qualifying hedges and qualifying cash flow hedges, partially offset by favorable currency movements.
EXPENSES Depreciation on operating leases is recognized on owned equipment over the lease term or projected economic life of the asset. Depreciation expense totaled $145.5 million for the quarter, down from $160.5 million for last quarter and $178.1 million for the 2010 second quarter. FSA adjustments reduced second quarter 2011 depreciation expense by $64 million, a slight change from $61 million in the prior quarter. 2011 depreciation reflects the suspension of depreciation on equipment once it is transferred to held for sale and a decline due to scrapping older railcars, as described further in "Net Finance Revenues". See also "Financing and Leasing Assets – Results by Business Segment" and "Concentrations – Operating Leases" for additional information. Operating expenses increased on non-recurring servicing expenses in Vendor Finance and higher litigation-related costs.
Operating Expenses (dollars in millions) Quarters Ended Six Months Ended
March 31, June 30, June 30, June 30, June 30, 2011 2011 2010 2011 2010
Salaries and general operating expenses: Compensation and benefits $ 123.7 $ 116.6 $ 179.3 $ 240.3 $ 319.6 Professional fees 35.3 29.6 25.6 64.9 55.3 Technology 18.1 18.7 18.2 36.8 37.4 Occupancy expense 9.7 10.1 11.3 19.8 26.2 Provision for severance and facilities exiting activities 0.9 6.6 2.6 7.5 14.5 Other expenses 58.1 34.8 40.8 92.9 86.5
Total operating expenses $ 245.8 $ 216.4 $ 277.8 $ 462.2 $ 539.5
Headcount 3,480 3,693 4,006
• Compensation and benefits reflect higher incentive compensation expense as the 2011 first quarter included a reduction in the accrual as a result of the finalization of the 2010 incentive compensation payments. Compensation and benefits decreased from prior year as 2010 included retention related costs and higher employee headcount. • Professional fees reflect legal and other professional fees such as tax, audit, and consulting services and increased in the second quarter due to higher litigation-related costs. 61 • Provision for severance and facilities exiting activities expense was less than $1 million in the second quarter. The first quarter 2011 primarily reflects the outsourcing of the student loan portfolio, which reduced headcount. • Other expenses in the second quarter were impacted by higher servicing costs in our Vendor Finance business, of which approximately $7 million was a correction of prior periods.
INCOME TAXES Income Tax Data (dollars in millions) Quarters Ended Six Months Ended
June 30, March 31, June 30, June 30, June 30, 2011 2011 2010(1) 2011 2010
Provision for income taxes $ 24.7 $ 49.1 $ 62.9 $ 73.8 $ 102.5 Discrete Items 2.2 16.6 25.3 18.8 29.1
Provision for income taxes $ 26.9 $ 65.7 $ 88.2 $ 92.6 $ 131.6
Effective tax rate – excluding discrete items (113.1)% 36.2% 23.3% 64.9% 22.3% Effective tax rate (123.2)% 48.5% 32.7% 81.5% 28.7% CIT's tax provision of $26.9 million for the second quarter decreased compared to a tax provision of $88.2 million in the prior year quarter primarily as a result of lower international earnings and a decrease in discrete items. CIT's tax provision of $92.6 million for the six months ended June 30, 2011 decreased compared to a tax provision of $131.6 million in the prior year six months primarily as a result of lower international earnings. For the year to date tax provision, the Company recorded income tax expense on the earnings of certain international operations and no income tax benefit on its domestic losses. A tax benefit was not recognized on the domestic losses because management has concluded that it does not currently meet the criteria to recognize these tax benefits considering its recent history of domestic losses. The year end 2011 effective tax rate may vary from the current rate primarily due to changes in the mix of domestic and international earnings. The tax provision for the second quarter and six months ended 2011 included $2.2 million and $18.8 million, respectively, of discrete tax expense items. Included in the discrete items for the second quarter and year to date was approximately $0.8 million and $9.8 million, primarily related to a net increase in liabilities for uncertain tax positions and incremental valuation allowances on certain foreign losses. The Company anticipates that it is reasonably possible that the total unrecognized tax benefits will decrease due to the settlement of audits and the expiration of statutes of limitation prior to June 30, 2012 in the range of $0-$10 million. The tax provisions for the quarter and six months ended June 30, 2010 included $25.3 million and $29.1 million, respectively, of tax expense related to valuation allowance recorded against international deferred tax assets and changes in liabilities for uncertain tax positions. The tax provision for the year to date also reflects $9 million of discrete tax expense items primarily associated with the correction of certain foreign tax expense calculations relating to prior periods. Management has concluded that the adjustments were not individually or in the aggregate material to the consolidated financial statements, as of and for the period ended June 30, 2011, or to any of the preceding periods as reported. 62 As of December 31, 2010, CIT had cumulative U.S. Federal net operating loss carry-forwards (NOL's) of $4.0 billion. Excluding FSA adjustments, which are not included in the calculation of U.S. Federal taxable income, the Company generated a domestic pretax loss of $288 million in the second quarter ($701 million year to date) which, excluding certain other book-to-tax adjustments, will increase the post-emergence NOLs. Pursuant to Section 382 of the Internal Revenue Code, the Company is generally subject to a $230 million annual limitation on the use of its $1.9 billion of pre-emergence NOLs. NOLs arising in post-emergence years are not subject to this limitation. See "Funding, Liquidity and Capital" (Tax Implications on Cash in Foreign Subsidiaries) for a discussion pertaining to unremitted earnings in foreign subsidiaries. See also Note 10 — Income Taxes for additional information.
RESULTS BY BUSINESS SEGMENT We refined our expense and capital allocation methodologies during the first quarter of 2011. For 2011, Corporate and other includes certain costs that had been previously allocated to the segments, including prepayment penalty fees on high-cost debt payments and certain corporate liquidity costs. In addition, we refined the capital and interest allocation methodologies for the segments. These changes had the most impact on Transportation Finance given the capital requirements for their forward-purchase commitments and reduced the interest expense charged to this segment. The refinement was not significant to the other segments. The 2010 balances are reflected as originally reported and are not conformed to the 2011 presentation. Information about our segments is also in Item 1, Note 13 — Business Segment Information. Corporate Finance Corporate Finance's middle-market lending business in the U.S. and Canada provides lending, leasing and other financial and advisory services to the middle market sector, with a focus on specific industries, including Communications, Energy, Entertainment, Healthcare, Industrials, Information Services & Technology, Restaurants, Retail, and Sports & Gaming. We also have specialized business units focusing on small business lending in the US, and on financial sponsors in Europe. Revenue is generated primarily from interest earned on loans, supplemented by fees collected on services provided. Corporate Finance (including Small Business Lending, SBL) offers senior secured loans, including revolving lines of credit secured by accounts receivables and inventories; cash flow loans based on operating cash flow and enterprise valuation; and government guaranteed loans (such as Small Business Administration (SBA) loans). Risks associated with secured financings relate to the ability of the borrower to repay its loan and the value of the collateral underlying the loan should the borrower default on its payments. In our SBL business, the collateral consists in some instances of real estate. Risks associated with cash flow loans relate to the collectability of the loan should there be a decline in the credit worthiness of the client. SBA loans are also subject to repurchase agreements, for instance in circumstances where there are issues related to original loan underwriting. 63 Quarters Ended Six Months Ended
June 30, March 31, June 30, June 30, June 30,
(dollars in millions) 2011 2011 2010 2011 2010
Earnings Summary Interest income $ 270.9 $ 298.7 $ 494.7 $ 569.6 $ 1,042.7 Interest expense (212.0) (196.8) (276.0) (408.8) (574.8) Provision for credit losses (61.3) (74.5) (95.2) (135.8) (229.1) Rental income on operating leases 5.5 6.5 7.3 12.0 16.1 Other income, excluding rental income 118.2 163.8 206.4 282.0 309.0 Depreciation on operating lease equipment (3.0) (2.9) (5.1) (5.9) (8.7) Other expenses, excluding depreciation (66.9) (58.8) (90.3) (125.7) (170.2)
Income before provision for income taxes $ 51.4 $ 136.0 $ 241.8 $ 187.4 $ 385.0
Select Average Balances Average finance receivables (AFR) $ 7,736.2 $ 8,205.5 $ 11,734.5 $ 7,981.5 $ 12,224.9 Average operating leases (AOL) $ 65.5 $ 78.5 $ 118.5 $ 71.9 $ 127.4 Average earning assets (AEA) $ 8,012.4 $ 8,440.3 $ 11,961.7 $ 8,238.7 $ 12,538.9 Statistical Data Net finance revenue (interest and rental income, net of interest and depreciation expense) as a % of AEA 3.06% 5.00% 7.39% 4.05% 7.58% Funded new business volume $ 732.9 $ 470.7 $ 245.0 $ 1,203.6 $ 390.5 Corporate Finance new committed loan volume rose 29% from the first quarter to over $1 billion, and new funded volume was $733 million, up 56%. Both figures were also significantly above prior year second quarter amounts. CIT Bank originated approximately 80% of the U.S. funded volume. • Corporate Finance pre-tax earnings were $51 million, down from $136 million in the 2011 first quarter and $242 million in the prior year quarter, primarily due to lower FSA accretion. The sequential quarter decline also reflects lower gains on asset sales and lower recoveries on loans charged-off prior to the adoption of FSA, partially offset by a lower provision for credit losses. • Net finance revenue was $61 million, down from $105 million and $221 million in the first quarter of 2011 and second quarter of 2010, as a result of lower FSA accretion and financing and leasing asset levels. FSA accretion increased net finance revenue by $9 million for the quarter, $59 million in the prior quarter and $270 million in the 2010 second quarter.
The reduced FSA accretion reflects primarily lower prepayments of loans and the acceleration of FSA associated with debt repayments. • Other income continues to be driven by gains on asset sales ($62 million), FSA accretion from the Goldman facility ($25 million) and recoveries on loans charged-off prior to the adoption of FSA ($10 million). Other income declined from the prior quarter and 2010 second quarter on lower recoveries of pre-FSA charge-offs and gains on asset sales. • Non-accrual loans declined 20% during the quarter to $0.8 billion from $1.0 billion at March 31, 2011 on sales, payments and charge-offs. Net charge- offs were $40 million, a $77 million decrease from the prior quarter which had included charge-offs concentrated in the energy section. • Financing and leasing assets decreased $0.3 billion which was less than last quarter's $0.6 billion decline and was largely attributable to prepayments, as current period volume nearly kept pace with portfolio collections. Asset sales slowed and continued to include a high proportion of non- accrual loans. 64 Transportation Finance Transportation Finance leases primarily commercial aircraft to airlines globally and rail equipment to North American operators, and provides other financing to these customers as well as those in the defense sector. Revenue is generated from rents collected on leased assets, and to a lesser extent from interest on loans, fees, and gains from assets sold. Transportation Finance offers asset-backed and cash flow lending products to its customers for the purchase of aerospace and rail equipment. The risk associated with loans relates to the ability of the borrower to repay its loan and the collectability of the value of the collateral underlying the loan should the borrower default on its payments. For operating leases and finance leases the risk relates to the accuracy of the estimated residual value of the leased equipment, the ability of the customer to make the lease payments when due, and the on-going asset value. Risks associated with cash flow loans relate to the collectability of the loans should there be a decline in the credit worthiness of the client. Quarters Ended Six Months Ended
(dollars in millions) June 30, 2011 March 31, 2011 June 30, 2010 June 30, 2011 June 30, 2010
Earnings Summary Interest income $ 44.5 $ 42.5 $ 57.8 $ 87.0 $ 121.5 Interest expense (250.8) (210.5) (234.3) (461.3) (492.6) Provision for credit losses (4.7) (1.8) (3.0) (6.5) (4.3) Rental income on operating leases 339.5 324.7 315.0 664.2 621.8 Other income, excluding rental income 33.0 24.3 18.2 57.3 40.4 Depreciation on operating lease equipment (86.7) (96.7) (85.9) (183.4) (164.5) Other expenses, excluding depreciation (37.4) (39.8) (45.5) (77.2) (85.1)
Income before provision for income taxes $ 37.4 $ 42.7 $ 22.3 $ 80.1 $ 37.2
Select Average Balances Average finance receivables $ 1,346.3 $ 1,352.2 $ 1,747.6 $ 1,358.8 $ 1,791.3 Average operating leases $ 10,574.2 $ 10,634.4 $ 10,271.8 $ 10,612.7 $ 10,220.9 Average earning assets $ 12,171.5 $ 12,053.7 $ 12,020.1 $ 12,115.8 $ 12,012.8 Statistical Data Net finance revenue as a % of AEA 1.53% 1.99% 1.75% 1.76% 1.44% Operating lease margin as a % of AOL 9.56% 8.58% 8.92% 9.06% 8.95% Funded new business volume $ 398.8 $ 317.9 $ 255.5 $ 716.7 $ 481.2 Key drivers impacting revenue are utilization and lease renewal rates. All commercial aircraft were leased at June 30, 2011. Aerospace benefited from the redeployment of several aircraft this quarter. Rail fleet utilization, including commitments, increased to 96% from 95% in the prior quarter. In June, the Aerospace unit signed a Memorandum of Understanding with Airbus for 50 A320neo Family aircraft. Deliveries are scheduled to begin in 2016. During the quarter, $150 million of secured aircraft financing was funded through a newly established facility guaranteed by the Export-Import Bank of the United States. • Transportation Finance pre-tax earnings were $37 million, down from $43 million in the prior quarter and improved from $22 million for the prior year quarter. The sequential decline reflects accelerated FSA discount amortization on debt repayments that was charged to interest expense and lower gains on assets sales, partially offset by higher rental income and a $19 million non- 65 • recurring benefit, largely related to a change in the aircraft order book ($11 million) and an $8 million benefit associated with the correction of certain prior period amounts. Comparisons to last year reflect lower interest expense due to changes in segment allocations instituted in 2011 (see Corporate and Other). On a comparable basis, pre-tax earnings would have been $67 million in the prior year quarter and $140 million for the six months ended June 30, 2010. • Net finance revenue was $47 million; down from $60 million in the prior quarter impacted by higher interest expense, partially offset by improved net lease yields. FSA accretion decreased net finance revenue by $18 million for the quarter due to higher interest expense related to debt prepayments, and increased net finance revenue by $13 million last quarter and $42 million in the 2010 second quarter. Net lease yields in Aerospace benefited from aircraft redeployment and lower maintenance costs and Rail benefited from increased utilization. • Other income increased from the prior quarter primarily due to $14 million of non-recurring benefits, $11 million related to a change in the aircraft order book and corresponding acceleration of FSA. • Volume reflected deliveries of commercial aircraft and approximately 200 railcars from the first quarter railcar purchase commitment as well as new loans originated by CIT Bank. See Note 11 — Commitments. • Net charge-offs were minimal for each period and non-accrual loans decreased $6 million from the prior quarter to $56 million. • Financing and leasing assets increased $0.1 billion from the prior quarter and $0.2 billion from year-end as new equipment purchases (principally aircraft) and loans originated by CIT Bank exceeded depreciation and equipment sales. Assets held for sale includes 7 aircraft transferred to held-for- sale in the first quarter. • In the second quarter, we placed 4 new aircraft and have lease commitments for all aircraft to be delivered during the next 12 months. The Company's rail business entered into a commitment to purchase 3,500 railcars in the first quarter of 2011 and entered into a commitment to purchase 2,250 railcars in the second quarter of 2011. Pursuant to these contractual commitments, approximately 5,550 railcars remain to be purchased with deliveries scheduled periodically in 2011 and 2012. All of the railcars scheduled to be delivered in 2011 have lease commitments. On July 26, 2011, CIT announced orders for 5,000 railcars (which includes the second quarter commitment of 2,250 railcars and an incremental 2,750 railcars) from multiple manufacturers for which deliveries are scheduled throughout 2012. The orders include the exercise of an option for an additional 1,750 railcars received when the Company ordered 3,500 railcars earlier this year.
Trade Finance Trade Finance provides factoring, receivable management products, and secured financing to businesses (our clients) that operate in several industries, including apparel, textile, furniture, home furnishings and consumer electronics. Factoring entails the factor's assumption of credit risk with respect to trade accounts receivable arising from the sale of goods by our clients to their customers (generally retailers), which have been factored or sold to the factor. Although primarily U.S.-based, Trade Finance also conducts international business in Asia, Latin America and Europe. Revenue is principally generated from commissions earned on factoring and related activities, interest on loans and other fees for services rendered. The services mentioned above that are provided by Trade Finance entail two dimensions of risk, customer and client. Customer risk relates to the financial inability of a customer to pay on undisputed trade accounts receivable due from such customer to the factor. Client risk relates to a decline in the credit worthiness of a borrowing client, their consequent inability to repay their loan to Trade Finance and the possible insufficiency of the underlying collateral (including the aforementioned customer accounts receivable) to cover any loan repayment shortfall. 66 Quarters Ended Six Months Ended
(dollars in millions) June 30, 2011 March 31, 2011 June 30, 2010 June 30, 2011 June 30, 2010
Earnings Summary Interest income $ 17.9 $ 17.1 $ 24.4 $ 35.0 $ 54.9 Interest expense (29.5) (25.7) (49.5) (55.2) (91.1) Provision for credit losses (4.0) (3.3) (12.3) (7.3) (46.2) Other income, commissions 30.9 33.8 34.9 64.7 71.1 Other income, excluding commissions 11.9 3.3 16.5 15.2 29.5 Other expenses (26.4) (27.8) (33.0) (54.2) (65.0)
Income (loss) before provision (benefit) for income taxes $ 0.8 $ (2.6) $ (19.0) $ (1.8) $ (46.8)
Select Average Balances Average finance receivables $ 2,577.9 $ 2,356.0 $ 2,637.2 $ 2,444.8 $ 2,714.0 Average earning assets(1) $ 1,421.9 $ 1,378.6 $ 1,701.1 $ 1,395.1 $ 1,777.9 Statistical Data Net finance revenue as a % of AEA (3.25)% (2.50)% (5.90)% (2.90)% (4.07)% Factoring volume $ 6,142.2 $ 6,130.7 $ 6,307.3 $ 12,272.9 $ 12,685.4
(1) AEA is lower than AFR as it is reduced by the average credit balances for factoring clients. During the quarter, Trade Finance continued to focus on signing traditional factoring business in core markets, pursuing clients lost during 2009 and early 2010 and serving its client base. Trade Finance continues to experience a general upward trend in new business signings and stability in its client base.
• Trade Finance pre-tax income was $1 million for the quarter, compared to pre-tax losses of $3 million in the prior quarter and $19 million for the prior year quarter. The improvement from last quarter's results reflected higher recoveries on both pre- and post-emergence charge-offs, partially offset by increased non-specific reserves and lower commissions. The six months ended June 30, 2010 results were significantly impacted by 2010 first quarter replenishment of non- specific reserves eliminated under FSA. • Net finance revenue declined by $3 million from the prior quarter as it was impacted by $4 million in higher FSA interest expense as a result of debt prepayments. Interest income declined from the prior year on lower AEA and the fourth quarter 2010 completion of FSA interest income accretion in this segment. • Factoring volume was $6.1 billion, unchanged from the first quarter and down from $6.3 billion for the 2010 second quarter, due to the wind-down of Trade Finance's European factoring operation. Excluding the European operation, factored volume was up approximately 4% from the 2010 second quarter. • Factoring commissions for the second quarter of 2011 were down from the first quarter of 2011 and the second quarter of 2010 on lower surcharges reflecting a gradual improvement in the retail credit environment. • Other income for the quarter increased from the prior quarter primarily on higher recoveries on accounts charged off pre-FSA, and decreased from prior year quarter on lower recoveries. • Non-accrual balances declined 25% from March 31, 2011. Charge-offs declined $6 million from the prior quarter primarily due to two large recoveries and the allowance for loan losses increased primarily due to credit downgrades on a few client accounts. 67 Vendor Finance Vendor Finance has relationships with leading manufacturers and distributors of information technology, office products and telecommunications equipment to deliver financing and leasing solutions to end-user customers, predominantly small and medium sized businesses, globally. We also offer financing for diversified asset types in certain international markets. Vendor Finance earns revenues from interest on loans, rents on leases, and fees and other revenue from leasing activities. Vendor Finance (both U.S. and International) offers asset-backed loans and finance leases to the customers of its vendor relationships and other customers primarily for the purchase of equipment. For loans, the risk relates to the ability of the borrower to repay its loan and the value of the collateral underlying the loans should the borrower default on its payments, and for operating leases and finance leases the risk relates to estimated residual value, the ability of the customer to make the lease payments when due, and the on-going asset value. Quarters Ended Six Months Ended
(dollars in millions) June 30, 2011 March 31, 2011 June 30, 2010 June 30, 2011 June 30, 2010
Earnings Summary Interest income $ 195.1 $ 208.3 $ 345.2 $ 403.4 $ 707.2 Interest expense (145.5) (133.0) (190.4) (278.5) (358.3) Provision for credit losses (13.8) (42.9) (111.9) (56.7) (164.4) Rental income on operating leases 72.9 82.1 96.1 155.0 206.9 Other income, excluding rental income 50.8 31.6 33.2 82.4 72.0 Depreciation on operating lease equipment (55.8) (60.9) (87.4) (116.7) (178.1) Other expenses, excluding depreciation (82.1) (71.7) (86.3) (153.8) (173.2)
Income (loss) before provision (benefit) for income taxes $ 21.6 $ 13.5 $ (1.5) $ 35.1 $ 112.1
Select Average Balances Average finance receivables $ 3,999.8 $ 4,101.5 $ 6,416.9 $ 4,052.7 $ 7,143.3 Average operating leases $ 378.0 $ 426.5 $ 583.2 $ 399.5 $ 614.2 Average earning assets $ 5,062.5 $ 5,271.7 $ 7,438.5 $ 5,162.9 $ 8,008.0 Statistical Data Net finance revenue as a % of AEA 5.27% 7.32% 8.79% 6.32% 9.43% Operating lease margin as a % of AOL 18.10% 19.88% 5.97% 19.17% 9.38% Funded new business volume $ 592.7 $ 538.8 $ 532.5 $ 1,131.5 $ 1,064.7 During the quarter, Vendor Finance increased business with existing relationships and added new vendor partners. New business volumes were up from both the second quarter 2010 and the last quarter, and continue to be originated at low double-digit yields. We continued to utilize local sources to fund the international business, including expanding deposits in our Brazilian bank. In the second quarter 2011, we closed the sale of Dell Financial Services Canada Ltd. ("DFS Canada") to Dell which included financing and leasing assets of approximately $360 million and approximately 60 employees. In a separate transaction, Dell also intends to buy CIT's Dell-related assets and sales and servicing functions in Europe ("DFS Europe") with the sale planned to close in 2012. DFS Europe includes financing and leasing assets of approximately $400 million as of June 30, 2011, which include operating lease equipment moved to assets held for sale during the second quarter. The sale is subject to additional regulatory requirements. CIT will continue to support Dell in Europe during the transition. 68 • Vendor Finance pre-tax earnings were $22 million, improved from $14 million in the prior quarter and a pre-tax loss of $2 million in the prior year quarter, reflecting lower credit costs and the gain from the sale of DFS Canada, partially offset by lower asset levels and reduced FSA accretion income and higher operating expenses. • Net finance revenue as compared to prior quarter was impacted by $19 million in higher FSA interest expense as a result of debt prepayments and the second quarter included a $8 million temporary benefit related to accounting for certain assets classified as held-for-sale, down from $13 million in the first quarter of 2011. Net finance revenue as a percentage of AEA was down from a year ago due to lower FSA interest income accretion and as higher yielding, higher risk assets were sold during 2010. We continue to book new business volume at double-digit rates. • The provision for credit losses decreased on declining charge-offs, as the portfolio quality continues to improve. Non-accrual loans were down 10% from March 31, 2011, while past dues also declined. • Other income primarily consists of gains on receivable and equipment sales and recoveries of loans charged-off pre-FSA. Other income increased from prior quarter reflecting the gain on sale of DFS Canada. • Other expenses were impacted by accruals for non-recurring servicing expenses, approximately $7 million of which pertained to corrections of prior periods. • Total financing and leasing assets declined to $4.7 billion from $5.2 billion at March 31, 2011, due primarily to the sale of Dell Canada assets and were down $2.0 billion from June 30, 2010, as asset sales and net portfolio collections outpaced new business volume. • We funded $593 million of new business volume in the second quarter, which was up approximately 10% from the prior quarter and 11% from the prior year quarter. Excluding volume associated with the Australia and New Zealand platforms sold in the 2010 second quarter, volume rose 28% from the 2010 second quarter with contributions from both domestic and international operations. • We continued to make progress on our local funding initiatives. During the quarter, we closed a new RMB 1.8 billion (approximately $275 million) committed secured funding facility in China, although there was no usage as of June 30, 2011, and renewed a £100 million (approximately $150 million) U.K. committed conduit facility at significantly reduced costs, increased advance rate and lengthened expiration and maturity term. We also increased our local currency deposits in Brazil, growing the balance to $75 million as of June 30, 2011 which was up from $31 million at March 31, 2011 and $7 million at December 31, 2010. • During the second quarter we obtained the necessary regulatory approvals and transferred our U.S. Vendor Finance platform into CIT Bank in July. 69 Consumer Consumer predominately includes government-guaranteed student loans. We ceased offering private student loans during 2007 and government-guaranteed student loans in 2008. Therefore, CIT's risk relates mainly to the ability of the borrower to repay its loan and is primarily limited to the portion, generally 2% - 3%, that is not guaranteed by the government. Government-guaranteed loans are also subject to repurchase agreements, for instance in circumstances where there are issues related to the original student loan underwriting. Quarters Ended Six Months Ended
(dollars in millions) June 30, 2011 March 31, 2011 June 30, 2010 June 30, 2011 June 30, 2010
Earnings Summary Interest income $ 68.9 $ 70.8 $ 96.7 $ 139.7 $ 192.6 Interest expense (48.7) (53.0) (59.4) (101.7) (126.2) Provision for credit losses (0.9) (0.9) (9.3) (1.8) (13.8) Other income 3.1 3.1 18.3 6.2 24.1 Other expenses (15.5) (17.4) (22.7) (32.9) (44.2)
Income before provision for income taxes $ 6.9 $ 2.6 $ 23.6 $ 9.5 $ 32.5
Select Average Balances Average finance receivables $ 7,631.4 $ 7,984.8 $ 8,861.9 $ 7,795.1 $ 9,192.4 Average earning assets $ 7,809.5 $ 8,049.8 $ 9,090.3 $ 7,933.5 $ 9,337.1 Statistical Data Net finance revenue as a % of AEA 1.03% 0.88% 1.64% 0.96% 1.42% • Consumer Finance pre-tax earnings were $7 million, up from $3 million in the prior quarter and down from $24 million for the prior year quarter. • Net finance revenue benefited from net FSA accretion of $9 million in the second quarter and $8 million in the first quarter, down from $27 million for the prior year quarter. • Other income in 2011 primarily reflects FSA accretion on a counterparty receivable. Second quarter 2010 other income includes a $12 million gain on sale of receivables. • In the second quarter, $0.7 billion of student loans were transferred to assets-held-for-sale and government-guaranteed student loans declined by $170 million from the prior quarter reflecting portfolio run-off. 70 Corporate and Other Certain items are not allocated to operating segments and are included in Corporate and Other. For 2011, Corporate and Other includes cash liquidity in excess of the amount required by the business units that management determines is prudent for the overall company and the prepayment penalty fees associated with debt repayments. In addition, we refined our capital and interest allocation methodologies for our segments in 2011. The Company did not conform 2010 periods. Had the Company conformed the 2010 periods, the changes to each of the segments would be offset in Corporate and Other, including increases to "(loss) income before provision for income taxes" of $45 million for the quarter ended June 30, 2010 and $103 million for the six months ended June 30, 2010 relating to increased allocations to Transportation Finance. For 2010, Corporate and other consisted primarily of mark-to-market on non- qualifying derivatives and restructuring charges for severance and facilities exit activities. Quarters Ended Six Months Ended
(dollars in millions) June 30, 2011 March 31, 2011 June 30, 2010 June 30, 2011 June 30, 2010
Earnings Summary Interest income $ 4.8 $ 5.8 $ 5.0 $ 10.6 $ 9.6 Interest expense (119.2) (79.9) 2.1 (199.1) 4.1 Provision for credit losses – – (15.0) – (15.0) Rental income on operating leases – – (0.5) – (1.1) Other income, excluding rental income (8.0) 18.3 11.0 10.3 (57.2) Depreciation on operating lease equipment – – 0.3 – 0.5 Other expenses (16.6) 5.7 2.6 (10.9) 12.7
Other expenses – provision for severance and facilities exiting activities (0.9) (6.6) (2.6) (7.5) (14.5)
(Loss) income before provision for income taxes $ (139.9) $ (56.7) $ 2.9 $ (196.6) $ (60.9)
• Interest income consists of interest and dividend income primarily from deposits held at other depository institutions and U.S. Treasury Securities. • Interest expense reflects amounts not allocated to the business segments. During 2010, management allocated interest on high cost debt to each segment, which for 2011 is reflected in Corporate and Other. • Other income primarily reflects gains and (losses) on non-qualifying derivatives and foreign currency exchange. Other income declined as there was a $32 million fluctuation in mark-to- market valuations on non-qualifying hedge derivatives and foreign currency exchange as compared to the first quarter. • Other expenses reflects salary and general and administrative expenses unallocated to the business segments and litigation-related costs. • Provision for severance and facilities exiting activities reflects primarily the outsourcing of the student loan portfolio in 2011, facility consolidation charges and other efficiency measures. 71 FINANCING AND LEASING ASSETS The following table presents our financing and leasing assets by segment. Financing and Leasing Asset Composition (dollars in millions) June 30, March 31, December 31, % Change
2011 2011 2010 Quarter YTD
Corporate Finance Loans $ 7,423.9 $ 7,896.1 $ 8,482.2 (6.0)% (12.5)% Operating lease equipment, net 51.1 72.8 83.2 (29.8)% (38.6)% Assets held for sale 378.8 171.0 219.2 121.5% 72.8%
Financing and leasing assets 7,853.8 8,139.9 8,784.6 (3.5)% (10.6)%
Transportation Finance Loans 1,356.3 1,282.6 1,388.9 5.7% (2.3)% Operating lease equipment, net 10,619.3 10,545.9 10,618.8 0.7% 0.0% Assets held for sale 257.3 261.3 2.8 (1.5)% >100%
Financing and leasing assets 12,232.9 12,089.8 12,010.5 1.2% 1.9%
Trade Finance Factoring receivables and Loans 2,538.4 2,622.6 2,387.4 (3.2)% 6.3%
Vendor Finance Loans 3,940.4 4,036.5 4,166.1 (2.4)% (5.4)% Operating lease equipment, net 250.0 421.5 434.7 (40.7)% (42.5)% Assets held for sale 528.1 738.6 749.8 (28.5)% (29.6)%
Financing and leasing assets 4,718.5 5,196.6 5,350.6 (9.2)% (11.8)%
Consumer Loans – student lending 7,003.5 7,869.0 8,035.5 (11.0)% (12.8)% Loans – other 22.2 29.9 40.4 (25.8)% (45.0)% Assets held for sale 699.3 3.5 246.7 >100% >100%
Financing and leasing assets 7,725.0 7,902.4 8,322.6 (2.2)% (7.2)%
Total financing and leasing assets $ 35,068.6 $ 35,951.3 $ 36,855.7 (2.5)% (4.8)%
Finance and leasing assets declined $883 million during the quarter, $706 million in the commercial segments and $177 million in the consumer segment. With respect to the commercial portfolio, we funded $1.7 billion of new business volume, which largely kept pace with our net portfolio collections and we sold approximately $675 million (post-FSA) of commercial assets, including our Canadian Dell portfolio in Vendor Finance, which we announced last quarter. Year to date, financing and leasing assets are down $1,787 million. Asset sales will continue as assets held-for-sale increased to $1.9 billion from $1.2 billion at March 31, 2011. During the second quarter, transfers to held-for- sale included approximately $700 million of student loans (largely in CIT Bank), $290 million of corporate finance loans (most of which were non-accrual), and $160 million of vendor equipment related to the Dell Europe sale. 72 The following table provides further detail of the changes in financing and leasing assets. (dollars in millions)
Corporate Transportation Trade Vendor Commercial Finance Finance Finance Finance Segments Consumer Total
Balance at March 31, 2011 $ 8,139.9 $ 12,089.8 $ 2,622.6 $ 5,196.6 $ 28,048.9 $ 7,902.4 $ 35,951.3 New business volume 732.9 398.8 – 592.7 1,724.4 – 1,724.4 Loan sales (pre-FSA) (168.8) (19.3) – (286.1) (474.2) – (474.2) Equipment sales (pre-FSA) (59.0) (60.7) – (159.1) (278.8) – (278.8) Depreciation (pre-FSA) (4.6) (139.3) – (60.0) (203.9) – (203.9) Gross charge-offs (pre-FSA) (59.5) (0.1) (4.2) (30.2) (94.0) (3.4) (97.4) Collections and other (1,086.0) (112.9) (80.0) (577.4) (1,856.3) (227.6) (2,083.9) Change in finance receivable FSA discounts 357.4 20.2 – 36.2 413.8 53.6 467.4 Change in operating lease FSA discounts 1.5 56.4 – 5.8 63.7 – 63.7
Balance at June 30, 2011 $ 7,853.8 $ 12,232.9 $ 2,538.4 $ 4,718.5 $ 27,343.6 $ 7,725.0 $ 35,068.6
Balance at December 31, 2010 $ 8,784.6 $ 12,010.5 $ 2,387.4 $ 5,350.6 $ 28,533.1 $ 8,322.6 $ 36,855.7 New business volume 1,203.6 716.7 – 1,131.5 3,051.8 – 3,051.8 Loan sales (pre-FSA) (507.9) (40.9) – (286.1) (834.9) (251.8) (1,086.7) Equipment sales (pre-FSA) (110.0) (152.0) – (256.8) (518.8) – (518.8) Depreciation (pre-FSA) (8.8) (280.3) – (123.5) (412.6) – (412.6) Gross charge-offs (pre-FSA) (227.2) (0.8) (10.4) (62.6) (301.0) (6.7) (307.7) Collections and other (pre-FSA) (1,914.5) (183.9) 161.4 (1,119.2) (3,056.2) (417.0) (3,473.2) Change in finance receivable FSA discounts 630.0 45.5 – 74.5 750.0 77.9 827.9 Change in operating lease FSA discounts 4.0 118.1 – 10.1 132.2 – 132.2
Balance at June 30, 2011 $ 7,853.8 $ 12,232.9 $ 2,538.4 $ 4,718.5 $ 27,343.6 $ 7,725.0 $ 35,068.6
The following table provides further detail of funded and committed new business volume: Quarters Ended Six Months Ended
June 30, March 31, June 30, June 30, June 30,
(dollars in millions) 2011 2011 2010 2011 2010
Funded Volume Corporate Finance $ 732.9 $ 470.7 $ 245.0 $ 1,203.6 $ 390.5 Transportation Finance 398.8 317.9 255.5 716.7 481.2 Vendor Finance 592.7 538.8 532.5 1,131.5 1,064.7
Commercial Segments $ 1,724.4 $ 1,327.4 $ 1,033.0 $ 3,051.8 $ 1,936.4
Committed Volume Corporate Finance $ 1,052.0 $ 816.7 $ 337.6 $ 1,868.7 $ 504.7 Transportation Finance 428.6 343.9 255.5 772.5 481.2 Vendor Finance 592.7 538.8 532.5 1,131.5 1,064.7
Commercial Segments $ 2,073.3 $ 1,699.4 $ 1,125.6 $ 3,772.7 $ 2,050.6
Factoring Volume Trade Finance $ 6,142.2 $ 6,130.7 $ 6,307.3 $ 12,272.9 $ 12,685.4
Corporate Finance, Transportation Finance and Vendor Finance each reported double digit sequential and year-over-year increases in new business funded and committed volumes. Moreover, over 70% of our U.S. lending volume was originated and funded by CIT Bank – up from 61% last quarter and 27% a year ago. 73 Factoring volume was $6.1 billion, unchanged from the first quarter and down from $6.3 billion for the 2010 second quarter, due to the wind-down of our European factoring operation. Excluding the European operation, factored volume was up approximately 4% from the 2010 second quarter and 3% for the six months. The following table provides further detail of loan sales: Loan Sales, excluding factoring, (dollars in millions) Quarters Ended Six Months Ended
June 30, 2011 March 31, 2011 June 30, 2010 June 30, 2011 June 30, 2010
Corporate Finance $ 168.8 $ 339.1 $ 694.3 $ 507.9 $ 902.6 Transportation Finance 19.3 21.6 – 40.9 – Vendor Finance 286.1 – 454.4 286.1 864.1
Commercial Segments 474.2 360.7 1,148.7 834.9 1,766.7 Consumer – 251.8 582.1 251.8 582.1
Total $ 474.2 $ 612.5 $ 1,730.8 $ 1,086.7 $ 2,348.8
Nearly half of the Corporate Finance loans sold during the 2011 second quarter were non-accrual. Vendor Finance loans sold during the second quarter related primarily to the Dell Canada platform. First quarter 2011 sales activity in Corporate Finance consisted primarily of non-performing loans that were previously entered into as syndication transactions and sold this quarter, with the remaining sales consisting primarily of non-performing communications and media, healthcare and energy loans. Sales of Consumer loans consisted primarily of government-guaranteed student loans.
CONCENTRATIONS
Ten Largest Accounts Our ten largest financing and leasing asset accounts in the aggregate represented 7.8% of our total financing and leasing assets at June 30, 2011. The largest account primarily consisted of operating lease equipment leased to an airline carrier and represents 2.2% of our total financing and leasing assets. Excluding student loans, the top ten accounts in aggregate represented 10.0% of total owned assets (the largest account totaled 2.8%). The largest accounts were in Transportation Finance (airlines and rail), Trade Finance (retail) and Corporate Finance (healthcare). The top ten accounts were 7.6% and 9.7% (excluding student loans) at December 31, 2010. 74 Operating Lease Equipment by Segment (dollars in millions) June 30, December 31,
2011 2010
Transportation Finance – Aerospace(1) $ 7,198.2 $ 7,125.5 Transportation Finance – Rail and Other 3,421.1 3,493.3 Vendor Finance 250.0 434.7 Corporate Finance 51.1 83.2
Total $ 10,920.4 $ 11,136.7
(1) Aerospace includes commercial, regional and corporate aircraft and equipment. At June 30, 2011, the Transportation Finance aerospace and rail equipment on operating lease included 250 commercial aircraft, and approximately 100,000 railcars and 400 locomotives. Geographic Concentrations The following table represents the financing and leasing assets by obligor geography: (dollars in millions) June 30, 2011 December 31, 2010
Midwest $ 5,865.8 16.7% $ 6,094.9 16.5% Northeast 5,397.5 15.4% 5,970.6 16.2% West 4,764.0 13.6% 5,120.6 13.9% Southeast 3,988.4 11.4% 4,030.2 10.9% Southwest 2,958.1 8.4% 3,205.5 8.7%
Total U.S. 22,973.8 65.5% 24,421.8 66.2% Canada 3,000.4 8.6% 3,572.1 9.7% Other international 9,094.4 25.9% 8,861.8 24.1%
Total $ 35,068.6 100.0% $ 36,855.7 100.0%
The following table summarizes both state concentrations greater than 5.0% and international country concentrations in excess of 1.0% of our financing and leasing assets: June 30, 2011 December 31, 2010
State California 6.9% 6.9% Texas 6.1% 6.6% New York 5.4% 6.2% All other states 47.1% 46.5%
Total U.S. 65.5% 66.2%
Country Canada 8.6% 9.7% Australia 2.8% 2.5% Mexico 2.4% 2.3% England 2.2% 2.4% China 1.8% 1.8% Brazil 1.5% 1.3% Spain 1.3% 1.1% Germany 1.2% 1.4% All other countries 12.7% 11.3%
Total International 34.5% 33.8%
75 Industry Concentrations The following table represents financing and leasing assets by industry of obligor: (dollars in millions) June 30, 2011 December 31, 2010
Industry Commercial airlines (including regional airlines) $ 7,963.2 22.7% $ 7,743.3 21.0% Student lending(1) 7,700.4 22.0% 8,280.9 22.5% Manufacturing(2) 4,672.0 13.3% 4,761.1 12.9% Retail(3) 3,464.3 9.9% 3,588.4 9.7% Service industries 2,919.8 8.3% 3,076.6 8.4% Transportation(4) 2,077.1 5.9% 2,151.1 5.9% Healthcare 1,826.4 5.2% 1,996.8 5.4% Finance and insurance 693.0 2.0% 839.8 2.3% Energy and utilities 582.3 1.7% 638.8 1.7% Communications 578.6 1.7% 745.8 2.0% Wholesaling 471.9 1.3% 456.9 1.2% Other (no industry greater than 2%) 2,119.6 6.0% 2,576.2 7.0%
Total $ 35,068.6 100.0% $ 36,855.7 100.0%
(1) See Student Lending section for further information.
(2) At June 30, 2011, includes manufacturers of chemical products and pharmaceuticals (2.2%), apparel (1.9%), food (1.8%), and printing and publishing (1.1%).
(3) At June 30, 2011, includes retailers of apparel (3.6%) and general merchandise (1.5%).
(4) Includes rail, bus, over-the-road trucking industries, business aircraft and shipping.
76 Aerospace Commercial Aerospace Portfolio (dollars in millions) June 30, 2011 December 31, 2010
Net Net
Investment Number Investment Number
By Region: Asia Pacific $ 2,614.7 90 $ 2,569.2 95 Europe 2,272.5 82 2,151.0 79 U.S. and Canada 1,111.4 62 1,212.1 68 Latin America 992.3 42 902.0 36 Africa / Middle East 771.5 22 731.8 20
Total $ 7,762.4 298 $ 7,566.1 298
By Manufacturer: Airbus $ 5,027.8 168 $ 4,845.8 163 Boeing 2,665.4 128 2,702.0 135 Other 69.2 2 18.3 –
Total $ 7,762.4 298 $ 7,566.1 298
By Body Type(1): Narrow body $ 5,723.5 238 $ 5,536.4 235 Intermediate 1,893.0 50 1,895.6 53 Wide body 133.1 10 115.8 10 Other 12.8 – 18.3 –
Total $ 7,762.4 298 $ 7,566.1 298
By Product: Operating lease $ 7,380.1 250 $ 7,064.9 238 Loan 357.3 46 447.5 56 Capital lease 25.0 2 53.7 4
Total $ 7,762.4 298 $ 7,566.1 298
Number of accounts 98 100 Weighted average age of fleet (years) 6 5 Largest customer net investment $ 757.9 $ 692.4
(1) Narrow body are single aisle design and consist primarily of Boeing 737 series and Airbus A320 series aircraft. Intermediate body are smaller twin aisle design and consist primarily of Boeing 767 series and Airbus A330 series aircraft. Wide body are large twin aisle design and consist primarily of Boeing 747 and 777 series aircraft. Our top five commercial aerospace outstandings totaled $1,621.0 million at June 30, 2011, all of which were to carriers outside the U.S. The largest individual outstanding exposure to a U.S. carrier at June 30, 2011 was $148.3 million. See Note 11 — Commitments for additional information regarding commitments to purchase additional aircraft. Student Lending (Student Loan Xpress or "SLX") The Consumer segment includes our liquidating student loan portfolio. Student loan portfolio balances declined $580.5 million from December 31, 2010, reflecting the first quarter sale of approximately $250 million of government-guaranteed loans and cumulative portfolio run-off. We completed the outsourcing of servicing for the remaining government-guaranteed student loan portfolio and closed our Xpress Loan Servicing offices in Cleveland and Cincinnati, Ohio. During the second quarter, we transferred approximately $700 million of government-guaranteed student loans to assets-held-for-sale. 77 See Note 5 — Long-Term Borrowings for description of related financings. Student loans by product type are presented in the following table. (dollars in millions) June 30, December 31, 2010 2011
Consolidation loans $ 6,622.7 $ 7,119.0 Other U.S. Government guaranteed loans 1,075.0 1,159.2 Private (non-guaranteed) loans and other 2.7 2.7
Total $ 7,700.4 $ 8,280.9
Delinquencies (sixty days or more) $ 527.1 $ 608.9
Top state concentrations (%) 35% 35%
Top state concentrations California, New York, Texas, Ohio, Pennsylvania
OTHER ASSETS / OTHER LIABILITIES The following table presents components of other assets. Other Assets (dollars in millions) June 30, March 31, December 31,
2011 2011 2010
Deposits on commercial aerospace equipment $ 613.5 $ 558.4 $ 609.7 Other counterparty receivables 464.3 472.8 310.7 Deferred debt costs 176.9 148.0 126.4 Accrued interest and dividends 132.0 114.0 97.7 Executive retirement plan and deferred compensation 117.3 116.2 110.2 Prepaid expenses 84.7 78.7 87.5 Furniture and fixtures 77.5 78.2 79.3 Tax receivables, other than income taxes 68.3 121.0 125.1 Servicer and maintenance fee receivables – 116.6 115.3 Other 401.4 312.3 367.5
Total other assets $ 2,135.9 $ 2,116.2 $ 2,029.4
The following table presents components of other liabilities: Other Liabilities (dollars in millions) June 30, March 31, December 31,
2011 2011 2010
Equipment maintenance reserves $ 695.9 $ 668.1 $ 633.6 Accrued expenses 391.5 421.5 499.3 Estimated valuation adjustment relating to aerospace commitments(1) 349.1 391.4 429.6 Security and other deposits 193.2 197.1 201.4 Accrued interest payable 184.9 240.5 254.8 Qualifying hedges derivative liability 136.6 118.5 74.5 Current taxes payable and deferred taxes 109.0 (14.8) (62.0) Accounts payable 82.7 96.1 188.6 Other liabilities 289.1 265.5 247.1
Total other liabilities $ 2,432.0 $ 2,383.9 $ 2,466.9
(1) In conjunction with FSA, a liability was recorded to reflect the current fair value of aircraft purchase commitments outstanding at the time. When the aircraft are purchased, the cost basis of the assets will be reduced by the associated liability.
78 RISK MANAGEMENT We are subject to a variety of risks that can manifest themselves in the course of the business that we operate in. We consider the following to be the principal forms of risk: • Credit and asset risk (including lending, leasing, counterparty, equipment valuation and residual risk) • Market risk (including interest rate and foreign currency) • Liquidity risk • Legal, regulatory and compliance risks (including compliance with laws and regulations) • Operational risks (including process failures, data and systems, human resource risks and risks arising from external events) Managing risk is essential to conducting our businesses and to our profitability. This includes establishing and enforcing policies, processes, procedures and limits to manage risk, as well as developing appropriate management information systems to identify, monitor and report on risks. We continue to enhance our risk management practices, including governance, measurement and monitoring. Processes and procedures relating to Risk Management mentioned above are unchanged from December 31, 2010, and are detailed in our 2010 Form 10-K. Interest Rate Risk At June 30, 2011, the Company's loan, lease, and investment portfolio was split approximately evenly, in principal amount, between fixed and floating rate transactions, while our interest-bearing liabilities were predominately fixed rate based. As a result, our portfolio is in an asset sensitive position, as our assets will reprice faster than our liabilities. Therefore, our net interest margin may increase if interest rates rise, or decrease should interest rates decline. The following table summarizes the composition of interest rate sensitive assets and liabilities. June 30, 2011 March 31, 2011 December 31, 2010
Fixed Rate Floating Rate Fixed Rate Floating Rate Fixed Rate Floating Rate
Assets 52% 48% 49% 51% 48% 52% Liabilities 79% 21% 80% 20% 80% 20% We evaluate and monitor interest rate risk through two primary metrics. • Net Interest Income (NII), which measures the impact of hypothetical changes in interest rates on net interest income. • Economic Value of Equity (EVE), which measures the net economic value of equity by assessing market value of assets, liabilities and derivatives. A wide variety of potential interest rates scenarios are simulated within our asset/liability management system. Rates are shocked up and down by up to 400 basis points via a set of scenarios that include both parallel and non-parallel interest rate movements. Scenarios are also run to capture our sensitivity to changes in the shape of the yield curve (such as yield curve twists, ramps, and steepeners). In addition, we evaluate the sensitivity of these results to a number of key assumptions, such as credit quality and prepayments. NII and EVE limits have been set and are monitored for certain of the key scenarios. 79 The table below summarizes the results of simulation modeling produced by our asset/liability management system. The results reflect the percentage change in net interest income and economic value of equity over the next twelve months assuming an immediate 100 basis point parallel increase and decrease in interest rates. June 30, 2011 March 31, 2011 December 31, 2010
+100 bps -100 bps +100 bps -100 bps +100 bps -100 bps
Net Interest Income 14.3% (4.7)% 12.7% (4.8)% 18.0% (6.5)% Economic Value of Equity 3.5% 0.7% 3.5% 0.1% 3.1% (0.5)% The simulation modeling assumes we take no action in response to the assumed changes in interest rates. Our net interest income is asset sensitive to a parallel shift in interest rates at June 30, 2011. Although we believe that these measurements provide an estimate of our interest rate sensitivity, they do not account for potential changes in credit quality, size, competition and prepayment characteristics of our balance sheet. They also do not account for other business developments that could affect net income, or for management actions that could affect net income, or for management actions that could be taken to change our risk profile. Accordingly, we can give no assurance that actual results would not differ materially from the estimated outcomes of our simulations. Further, such simulations do not represent our current view of expected future interest rate movements.
FUNDING, LIQUIDITY AND CAPITAL Portfolio collections, capital markets, various securitization facilities and secured borrowings provide our sources of funding and liquidity. Additionally, the Company maintains a portfolio of cash and investment securities to satisfy funding and other operating obligations, while also providing protection against unforeseen stress events, for instance unanticipated funding obligations such as customer line draws, or disruptions to capital markets or other funding sources. Our cash investments in short-term investments include U.S. Treasury bills and government agency bonds, all of which have maturities of 91 days or less. We anticipate continued investment of our cash in various types of high-grade, short-term investments. Cash and short-term investment securities totaled $10.1 billion at June 30, 2011, comprised of $7.4 billion of cash and $2.7 billion of short-term investments, down from $11.8 billion at March 31, 2011 and $11.2 billion of cash at December 31, 2010. The declines largely reflect the repayment of debt. Cash and short-term investment securities at June 30, 2011 consisted of $4.0 billion at the bank holding company, $0.8 billion at CIT Bank, $1.6 billion at operating subsidiaries and $3.7 billion in restricted balances, including $2.5 billion in the Cash Sweep account. As described below, during the quarter we redeemed $2.5 billion of Series A Notes. During the first six months of 2011, we repaid approximately $6.2 billion of debt, including $3.5 billion of Series A Notes, approximately $0.75 billion of Series B Notes and approximately $2.0 billion of other secured debt. In March, we issued $2 billion of new Series C Second-Priority Secured Notes and in July, redeemed $0.5 billion of First Lien Facility. See Note 5 — Long- Term Borrowings for additional information on borrowings. We have targeted the transfer of certain business platforms suitable for operating within CIT Bank. We transferred our small business lending platform in March 2011 and the U.S. Vendor Finance platform in July. Following a platform transfer, related new originations are funded by CIT Bank using its available cash, deposits and secured financings. The platform transfers exclude portfolio assets outstanding at the time of the transfer, which are serviced by CIT Bank. Cash flows from the outstanding portfolio assets are retained by the Company to be used for other corporate purposes, but are subject to restrictions under the Cash Sweep. 80 Secured financings have been our primary source of funding since mid-2007. These secured financing transactions do not meet accounting requirements for sale treatment and are recorded as secured borrowings, with the assets remaining on-balance sheet. The debt associated with these transactions is collateralized by receivables, leases and/or equipment. Certain related cash balances are restricted, including amounts in the Cash Sweep account, as discussed further below. First Lien Facility In August 2010, CIT amended its existing first lien credit facility agreements (the "First Lien Facility") and refinanced the remaining principal balance. At June 30, 2011, the First Lien Facility had an outstanding balance of $3 billion that matures in August 2015. In July 2011, we redeemed $500 million of the First Lien Facility. The net impact of the acceleration of deferred debt costs and the favorable FSA amortization will increase third quarter interest expense by approximately $15 million. This facility carries an interest rate of LIBOR + 4.50% with a 1.75% LIBOR floor. The First Lien Facility is generally secured by a first lien on substantially all U.S. assets that are not otherwise pledged to secure the borrowings of special purpose entities as described below under "Other Secured Borrowings", 65% of the voting shares and 100% of the non-voting shares of certain foreign subsidiaries and between 44% and 65% of the equity interest or capital stock in certain other non-U.S., non-regulated subsidiaries. The First Lien Facility is subject to a collateral coverage covenant (based on CIT's book value in accordance with GAAP) of 2.5x the outstanding loan balance, tested quarterly and upon certain transfers, dispositions or releases of collateral. The First Lien Facility also contains a number of additional covenants, some of which do not impose restrictions on the Company if CIT continues to maintain a collateral coverage ratio of 2.75x or greater. At June 30, 2011, after eliminating certain pledged entities that are being evaluated for consolidation or dissolution, the collateral coverage ratio was 4.9x. Series A and Series C Notes In March 2011, the Company issued $2 billion of new Series C Second-Priority Secured Notes, consisting of $1.3 billion of three-year 5.25% fixed rate notes and $700 million of seven-year 6.625% fixed rate notes. The covenants in the new Series C Notes are materially less restrictive than those in the outstanding Series A Notes, and more consistent with covenants in investment grade-rated bonds. The proceeds of the transaction were used, in conjunction with available cash, to redeem the $2.5 billion of Series A Notes in May 2011 discussed below. The Series A Notes and Series C Notes are generally secured by second-priority security interests in all the assets securing the First Lien Facility. The 2014 Series A Notes Indentures limit the ability of the Company and the Company's restricted subsidiaries to make certain payments or investments, incur indebtedness (including guarantees), issue preferred stock, incur liens, enter into sale and leaseback transactions, pay dividends, sell assets, and enter into transactions with affiliates. The 2015-2017 Series A Notes and Series C Notes Indentures limit the Company's ability to create liens, merge or consolidate, or sell, transfer, lease or dispose of all or substantially all of its assets. Under the terms of the Series A Notes, the Company is required to use certain cash collections to repay the First Lien Facility and Series A Notes on an accelerated basis as part of the Cash Sweep; there is no such requirement under the Series C Notes. The guarantees and collateral for the Series C Notes will be released upon the Series C Notes receiving an investment grade rating from each of Moody's and S&P after giving effect to the release. In addition, the guarantees and/or collateral for the Series C Notes will be automatically released if the same guarantees and/or collateral for the Series A Notes are released at the same time or if the Series A Notes have been paid off in full. In the event of a Change of Control as defined in the Series A Indentures, holders of the Series A Notes will have the right to require the Company, as applicable, to repurchase all or a portion of the Series A Notes at a purchase price equal to 101% of the principal amount, plus accrued and unpaid interest to the date of such repurchase. 81 Upon a Change of Control Triggering Event as defined in the Series C Indentures, holders of the Series C Notes will have the right to require the Company, as applicable, to repurchase all or a portion of the Series C Notes at a purchase price equal to 101% of the principal amount, plus accrued and unpaid interest to the date of such repurchase. On May 2, 2011, the Company redeemed $2.5 billion of 7% Series A Notes at a redemption price of 102% of the aggregate principal amount. This redemption included approximately $1.1 billion principal amount of remaining 2013 Series A Notes and approximately $1.4 billion principal amount of the 2014 Series A Notes. The acceleration of FSA amortization on these Notes increased second quarter interest expense by $113 million, approximately $66 million for the 2013 maturities and $47 million for the 2014 maturities. During the 2011 first quarter, we redeemed $1.0 billion of the 7% Series A Notes due in 2013 at a redemption price of 102% of the aggregate principal amount redeemed. The acceleration of FSA amortization on the Series A Notes was $25 million and resulted in an increase to interest expense. In June 2011, we completed an Exchange Offer and Consent Solicitation for outstanding 7% Series A Second-Priority Secured Notes, other than the Series A Notes that mature in 2014, and the company received the requisite consents to adopt proposed amendments to the indenture of Series A Notes that mature in 2015, 2016 and 2017. At the Offer Expiration, tenders with consents or separate consents were received from holders of approximately $10.9 billion in aggregate principal amount of Series A Notes, made up of $8.76 billion Series A Notes tendered and accepted for exchange, and $2.17 billion Series A Notes separately consented, including a majority of each maturity of these Series A Notes. As a result, $8.76 billion principal amount of Series C Notes with the same interest rate and interest payment dates, but maturing one business day later than the Series A Notes for which they were exchanged, were issued in exchange for the Series A Notes tendered and accepted. Consents were solicited to replace the covenants and events of default in the Series A Notes Indenture with the same covenants and events of default as those in the Indenture that govern the existing 5.250% Series C Second-Priority Secured Notes due 2014 and 6.625% Series C Second-Priority Secured Notes due 2018, except that the Cash Sweep covenant was retained in the Series A Notes Indenture as amended. The covenants in the Series C Notes are materially less restrictive than those in the Series A Notes and are more consistent with covenants of investment-grade rated bonds. Approximately $27 million of consent fees were paid to Series A Note holders that delivered consents and were capitalized and will be amortized as an adjustment of interest expense over the life of the Series C Notes issued in exchange. Series B Notes During the 2011 first quarter, we redeemed the remaining $0.75 billion of 10.25% Series B Notes at a redemption price of 102% of the aggregate principal amount redeemed. The acceleration of FSA accretion on the Series B Notes was $14 million and resulted in a decrease to interest expense. Other Secured Borrowings These secured borrowings are comprised largely of securitization financings. At June 30, 2011, we had other secured borrowings of $9.86 billion, which was down $0.5 billion for the quarter reflecting repayments on existing structures corresponding to receivable repayments. 82 GSI Facility The GSI Facility is a long-term committed financing facility with Goldman Sachs International ("GSI"), which is structured as a Total Return Swap (TRS) and which has a maximum notional amount of $2.125 billion at June 30, 2011. At June 30, 2011, a total of $2,861.9 million, after FSA, of financing and leasing assets, comprised of $1,169.7 million in Corporate Finance, $585.4 million in Consumer and $1,106.8 million in commercial aerospace in Transportation Finance, were pledged in conjunction with $1,556.0 million in secured debt issued to investors under the GSI Facility. After adjustment to the amount of actual qualifying borrowing base under terms of the GSI Facility, this $1,556.0 million of secured debt provided for usage of $1,083.5 million of the maximum notional amount of the GSI Facility at June 30, 2011. The remaining $1,041.5 million of the maximum notional amount of the GSI Facility represents the unused portion of the GSI Facility and constitutes the notional amount of a derivative financial instrument. Actual terms of the facility, including facility usage and collateral coverage, are measured on a pre-FSA basis. Unsecured counterparty receivable of $528.9 million, net of FSA, is owed to CIT from GSI for debt discount, return of collateral posted to GSI and settlements resulting from market value changes to asset-backed securities underlying the structure at June 30, 2011. The GSI Facility was originally executed on June 6, 2008, and under an October 28, 2009 amendment, the maximum notional amount of the GSI Facility was reduced from $3.0 billion to $2.125 billion. During the first half of 2008, CIT experienced significant constraints on its ability to raise funding through the debt capital markets and access the Company's historical sources of funding. The GSI Facility provided a swapped rate on qualifying secured funding at a lower cost than available to CIT through other funding sources. The GSI Facility was structured as a TRS to satisfy the specific requirements to obtain this funding commitment from GSI. Pursuant to applicable accounting guidance, only the unutilized portion of the TRS is accounted for as a derivative and recorded at fair value. Under the terms of the GSI Facility, CIT raises cash from the issuance of Asset Backed Securities ("ABS") to investors designated by GSI under the TRS, equivalent to the face amount of the ABS less an adjustment for any Original Issue Discount (OID) which equals the market price of the ABS. CIT is also required to deposit a portion of the face amount of the ABS with GSI as additional collateral prior to funding ABS through the TRS facility. Amounts deposited with GSI can increase or decrease over time depending on the market value of the ABS and / or changes in the ratings of the ABS. CIT and GSI engage in periodic settlements based on the timing and amount of coupon and principal payments actually made on the ABS. GSI is obligated to return those same amounts to CIT plus a proportionate amount of the initial deposit. CIT is obligated to pay GSI (1) principal in an amount equal to the initial market price less the initial deposit, in each case, as a percentage of the ABS times the principal amount returned by GSI and (2) interest equal to LIBOR times the adjusted qualifying borrowing base of the ABS. On a quarterly basis, CIT pays the fixed facility fee of 2.85% per annum times the maximum facility commitment amount, currently $2.125 billion, to GSI. Valuation of the derivative related to the GSI Facility is based on several factors using a discounted cash flow (DCF) methodology, including: • CIT's funding costs for similar recent secured financings; • Forecasted usage of the long-dated GSI Facility through the final maturity date in 2028; and • Forecasted amortization, including prepayment assumptions, due to principal payments on the underlying ABS, which impacts the amount of the unutilized portion. Based on the Company's valuation, it was determined that the derivative had no value at June 30, 2011. 83 Interest expense related to the GSI Facility is affected by the following: • A fixed facility fee of 2.85% per annum times the maximum facility commitment amount, currently $2.125 billion • A variable amount based on one-month or three-month USD LIBOR times the "utilized amount"(effectively the "adjusted qualifying borrowing base") of the TRS, and • A reduction in interest expense due to the recognition of the payment of any OID from GSI on the various ABS. 2011 New and Renewed Facilities During the second quarter, CIT completed the following funding transactions: • Received $150 million of secured aircraft funding through a newly established facility guaranteed by the Export-Import Bank of the United States; • Closed a new RMB 1.8 billion (approximately $275 million) committed Vendor Finance China funding facility. The committed availability period of the facility expires in June 2013 with a three year final maturity for each drawdown under the facility; and • Renewed a £100 million committed U.K. Vendor Finance securitization facility at significantly lower cost. In March 2011, CIT renewed its $1 billion committed U.S. Vendor Finance conduit facility, with significantly reduced costs, increased advance rate and lengthened expiration and maturity term. The committed revolving period of the facility now expires in March 2013 and the facility has a final maturity in 2020. Cash Sweep and Required Cash Sweep Payments Under the terms of the Series A Notes, the Company is required to use certain cash collections to repay the First Lien Facility and Series A Notes on an accelerated basis (the "Cash Sweep"). The Company may also use amounts in the Cash Sweep Accounts for certain designated purposes. While the First Lien Facility no longer contains a Cash Sweep provision, the terms of the Series A Notes still require Cash Sweep payments to be made in order of priority first to the First Lien Facility and once all obligations under the First Lien Facility have been paid off in full, then to repay or redeem the Series A Notes (including purchases of Series A Notes in open market transactions, pursuant to tender offers or otherwise). The Cash Sweep account totaled $2,533.7 million at June 30, 2011, which included restricted investments and cash, compared to $1,229.8 million at December 31, 2010. In July 2011, the $500 million first lien prepayment was sourced from cash in the Cash Sweep account. 84 Debt Ratings Our debt ratings at June 30, 2011 are presented in the following table. On May 3, 2011, Moody's Investors Service upgraded the Company's corporate credit rating (Issuer) to B2 from B3. Other changes since December 31, 2010 relate to the ratings on the Series C Notes that were issued in March 2011, and the omission of ratings on the Series B Notes that were repaid in January 2011. The Series C Notes ratings equate to the ratings on the Series A Notes. Debt Ratings as of June 30, 2011 Moody's
S&P RatingsInvestors
Services Service DBRS
Issuer / Counterparty Credit Rating B+ B2 B (High) 1st Lien Debt Rating BB Ba3BB (High) 2nd Lien Debt Rating (Series A and C) B+ B2 B (High) Outlook / Trend Positive Stable Positive Debt ratings can influence the cost and availability of short-and long-term funding, the terms and conditions on which such funding may be available, the collateral requirements, if any, for borrowings and certain derivative instruments, the acceptability of our letters of credit, and the number of investors and counter-parties willing to lend to the Company. A decrease, or potential decrease, in credit ratings could impact access to the capital markets and/or increase the cost of debt, and thereby adversely affect liquidity and financial condition. Rating agencies indicate that they base their ratings on many quantitative and qualitative factors, including capital adequacy, liquidity, asset quality, business mix, level and quality of earnings, and the current legislative and regulatory environment, including implied government support. In addition, rating agencies themselves have been subject to scrutiny arising from the financial crisis and could make or be required to make substantial changes to their ratings policies and practices, particularly in response to legislative and regulatory changes, including as a result of provisions in Dodd-Frank. Potential changes in the legislative and regulatory environment and the timing of those changes could impact our ratings, which as noted above, could impact our liquidity and financial condition. A security rating is not a recommendation to buy, sell or hold securities, and the ratings are subject to revision or withdrawal at any time by the assigning rating agency. Each rating should be evaluated independently of any other rating. Tax Implications on Cash in Foreign Subsidiaries Cash and short term investments held by foreign subsidiaries at June 30, 2011 and December 31, 2010 totaled $3.0 billion and $2.3 billion, respectively. As a general matter, the Company is asserting indefinite reinvestment for the unremitted earnings in its foreign subsidiaries except for certain deemed dividend inclusions under U.S. tax rules and the investment in one of our foreign subsidiaries. One of the Company's 2011 priorities is to grow its business, including expanding internationally. The Company plans on reinvesting earnings to expand its existing businesses across various jurisdictions, acquire new businesses, and invest in new IT initiatives. Specifically, our Commercial Aerospace business has future new aircraft delivery commitments of approximately $8 billion through 2019 and expects to lease these aircraft into various jurisdictions globally. In the Vendor Finance segment, the Company expects to continue to finance products to existing and new customers by partnering with 85 manufacturers and resellers in approximately 20 countries across Latin America, Canada, Europe and Asia. While CIT does not currently intend to repatriate cash related to earnings currently residing in our foreign subsidiaries, we will continue to remit cash held by foreign subsidiaries as part of the Company's cash management efforts on a non-taxable basis, for instance by repaying intercompany debt obligations. The Company will accrue U.S. federal and applicable foreign withholding taxes on unremitted international earnings if it decides to reverse its indefinite reinvestment assertions. If these assertions are reversed, the Company does not expect to pay U.S. federal income taxes on any distributions except for Alternative Minimum Taxes, which would be fully creditable on a prospective basis, until the U.S. federal net operating losses ("NOLs") have been fully utilized. The federal NOLs were approximately $4 billion at December 31, 2010. Any applicable foreign withholding taxes would be payable at the time of any future cash distribution. Contractual Payments and Commitments The following tables summarize significant contractual payments and contractual commitment expirations at June 30, 2011. Certain amounts in the payments table are not the same as the respective balance sheet totals as this table is before FSA, in order to better reflect projected contractual payments. Likewise, actual cash flows will vary materially from those depicted in the payments table as further explained in the table footnotes. Payments by Year, for the twelve months ended June 30(1) (dollars in millions) Total 2012 2013 2014 2015 2016 + 2017 +
Secured borrowings(2) $ 10,622.3 $ 1,945.5 $ 1,007.3 $ 920.9 $ 748.5 $ 805.6 $ 5,194.5 First Lien Facility(3) 3,000.0 500.0 – – – 2,500.0 – Other debt 214.9 42.0 34.9 2.4 0.1 – 135.5 Series A Notes 8,774.6 – – 1,760.0 1,601.7 2,165.4 3,247.5 Series C Notes (Exchanged) 8,765.0 – – – 1,554.2 3,094.5 4,116.3 Series C Notes 2,000.0 – – 1,300.0 – – 700.0
Total Long-term borrowings 33,376.8 2,487.5 1,042.2 3,983.3 3,904.5 8,565.5 13,393.8
Deposits 4,403.8 1,422.4 1,064.7 885.1 447.4 416.3 167.9 Credit balances of factoring clients 1,084.9 1,084.9 – – – – – Lease rental expense 282.8 35.1 32.1 30.8 28.9 27.4 128.5
Total contractual payments $ 39,148.3 $ 5,029.9 $ 2,139.0 $ 4,899.2 $ 4,380.8 $ 9,009.2 $ 13,690.2
(1) Projected payments of debt interest expense and obligations relating to postretirement programs are excluded.
(2) Includes non-recourse secured borrowings, which are generally repaid in conjunction with the pledged receivable maturities.
(3) First lien facility payments for the twelve months ended June 30, 2012 reflect redemption of $500 million in July 2011.
86 Commitment Expiration by twelve month periods ended June 30 (dollars in millions) Total 2012 2013 2014 2015 2016 +
Financing commitments(1) $ 2,615.9 $ 276.8 $ 569.6 $ 420.2 $ 224.0 $ 1,125.3 Aerospace and other manufacturer purchase commitments(2) 8,391.3 1,413.3 499.0 967.7 578.6 4,932.7 Letters of credit 374.8 179.3 48.6 18.6 35.5 92.8 Deferred purchase credit protection agreements 1,244.0 1,244.0 – – – – Guarantees, acceptances and other recourse obligations 34.8 13.5 11.6 8.6 0.4 0.7 Liabilities for unrecognized tax obligations(3) 452.1 10.0 442.1 – – –
Total contractual commitments $ 13,112.9 $ 3,136.9 $ 1,570.9 $ 1,415.1 $ 838.5 $ 6,151.5
(1) Financing commitments do not include certain unused, cancelable lines of credit to customers in connection with third-party vendor programs, which can be reduced or cancelled by CIT at any time without notice.
(2) Aerospace commitments are net of amounts on deposit with manufacturers.
(3) The balance cannot be estimated past 2013; therefore the remaining balance is reflected in 2013.
Financing commitments declined from $3.1 billion at December 31, 2010 to $2.6 billion at June 30, 2011. The table above includes approximately $0.5 billion of commitments at June 30, 2011 and $0.7 billion at December 31, 2010 that were not available for draw due to requirements for collateral availability or covenant conditions existing at June 30, 2011. At June 30, 2011, unfunded commitments related to lead agented asset-based loans totaled $319 million, down from $377 million at December 31, 2010. At June 30, 2011, substantially all financing commitments were senior facilities, with approximately 57% secured by equipment or other assets and the remainder comprised of cash-flow or enterprise value facilities. CIT is lead agent in approximately 28% of the facilities. Most of our undrawn and available financing commitments are in Corporate Finance. The top ten undrawn commitments totaled $306 million at June 30, 2011. Risk Weighted Assets For a BHC, capital adequacy is based upon risk-weighted asset ratios calculated in accordance with quantitative measures established by the Federal Reserve. Under these guidelines, certain commitments and off-balance sheet transactions are assigned asset equivalent balances, and together with on-balance sheet assets, are divided into risk categories, each of which is assigned a risk weighting ranging from 0% (for example U.S. Treasury Bonds) to 100% (for example commercial loans). The reconciliation of balance sheet assets to risk-weighted assets are presented below: Risk-Weighted Assets (dollars in millions) June 30, March 31, December 31,
2011 2011 2010
Balance sheet assets $ 48,009.6 $ 50,675.2 $ 50,958.2 Risk weighting adjustments to balance sheet assets (14,844.4) (17,377.4) (16,029.5) Off balance sheet items(1) 10,871.8 9,132.3 9,248.0
Risk-weighted assets $ 44,037.0 $ 42,430.1 $ 44,176.7
(1) Primarily reflects commitments to purchase aircraft and for unused lines of credit and letters of credit. See Note 9 — Regulatory Capital for more information.
87 Regulatory Capital The Company is subject to various regulatory capital requirements set by the Federal Reserve Board. CIT committed to its regulators to maintain a 13% Total Capital Ratio at the BHC and a 15% Tier 1 Leverage Ratio at CIT Bank for at least three years. Regulatory Capital and Ratios (dollars in millions) CIT CIT CIT
June 30, March 31, December 31,
2011 2011 2010
Tier 1 Capital Total stockholders' equity $ 8,941.5 $ 8,992.3 $ 8,916.0 Effect of certain items in accumulated other comprehensive loss excluded from Tier 1 Capital (9.5) (2.0) (3.3)
Adjusted total equity 8,932.0 8,990.3 8,912.7 Less: Goodwill (264.5) (277.4) (277.4) Disallowed intangible assets (84.1) (99.1) (119.2) Investment in certain subsidiaries (35.3) (34.4) (33.4) Other Tier 1 components(1) (62.7) (59.0) (65.2)
Total Tier 1 Capital 8,485.4 8,520.4 8,417.5
Tier 2 Capital Qualifying reserve for credit losses 439.3 415.3 416.2 Less: Investment in certain subsidiaries (35.3) (34.4) (33.4) Other Tier 2 components(2) 2.6 0.2 0.2
Total Tier 2 Capital 406.6 381.1 383.0
Total Capital (Tier 1 and Tier 2 Capital) $ 8,892.0 $ 8,901.5 $ 8,800.5
Risk-weighted assets $ 44,037.0 $ 42,430.1 $ 44,176.7
Tier 1 Capital Ratio(3) 19.3% 20.1% 19.1% Total Capital Ratio 20.2% 21.0% 19.9% Tier 1 Leverage Ratio 17.1% 17.2% 16.2%
CIT Bank Ratios: Tier 1 Capital Ratio 47.5% 56.1% 57.4% Total Capital Ratio 48.1% 56.5% 57.7% Tier 1 Leverage Ratio 27.4% 25.6% 24.2%
(1) Includes the portion of net deferred tax assets that does not qualify for inclusion in Tier 1 capital based on the capital guidelines and the Tier 1 capital charge for nonfinancial equity investments.
(2) Banking organizations are permitted to include in Tier 2 Capital up to 45% of net unrealized pretax gains on available-for-sale equity securities with readily determinable fair values.
(3) For the Company, the Tier 1 Capital Ratio equates to Tier 1 Common Equity Ratio since the Company has only common equity. Regulatory capital guidelines are based on the Capital Accord of the Basel Committee on Banking Supervision (Basel I). We compute capital ratios in accordance with Federal Reserve capital guidelines for assessing adequacy of capital. To be well capitalized, a BHC generally must maintain Tier 1 and Total Capital Ratios of at least 6% and 10%, respectively. The Federal Reserve Board also has established minimum guidelines. The minimum ratios are: Tier 1 Capital Ratio of 4.0%, Total Capital Ratio of 8.0% and Tier 1 Leverage Ratio of 4.0%. In order to be considered a "well capitalized" depository institution under FDIC guidelines, CIT Bank must maintain a Tier 1 Capital Ratio of at least 6%, a Total Capital Ratio of at least 10%, and a Tier 1 Leverage Ratio of at least 5%. Basel III In December 2010, the Basel Committee on Banking Supervision released its final framework for strengthening international capital and liquidity regulation ("Basel III"). Basel III requirements include, among other things, higher minimum capital ratios, increased limitations on qualifying capital, and a more constrained leverage ratio requirement. The U.S. bank regulatory agencies have not yet set forth a formal timeline for a notice of proposed rulemaking or final adoption of regulations responsive to Basel III. However, they have indicated informally that a notice of proposed rulemaking likely will be released in the second half of 2011, with final amendments to regulations becoming effective in mid-2012. Basel III revisions governing capital requirements are subject to a prolonged and phased-in transition period which begins on January 1, 2013, with full implementation on January 1, 2019. When Basel III is fully phased in on January 1, 2019, CIT will be required to maintain risk-based capital ratios as follows: Minimum Capital Requirements - January 1, 2019
Tier 1 Common Equity Tier 1 Capital Total Capital
Stated minimum Ratio 4.5% 6.0% 8.0%
Capital conservation buffer 2.5% 2.5% 2.5%
Effective minimum ratio 7.0% 8.5% 10.5% We continue to evaluate the potential impact of implementing BASEL III requirements. Given our current capital ratios, high proportion of common equity in our capital structure, and liquidity profile, we expect the impact to be minimal. 88 CIT BANK CIT Bank is a state-chartered bank headquartered in Salt Lake City, Utah and is the Company's principal bank subsidiary. CIT Bank originates and funds lending activity of various business segments. During the second quarter, CIT Bank originated over 70% of CIT Group's new origination volume in the U.S. Loan origination activity within CIT Bank continued to increase. Committed loan volume rose 41% from the prior quarter to $1.1 billion, of which $812 million was funded, nearly double the first quarter amount. Total assets were $6.9 billion, up slightly from $6.8 billion at March 31, 2011, as the increase in funded commercial loans outpaced the run-off of consumer loans and use of cash to pay maturing deposits. Total loans were $5.7 billion, up from $5.2 billion at March 31, 2011, and consisted of $2.2 billion of commercial loans and $3.5 billion of consumer loans. Cash was $0.8 billion at June 30, 2011, down from $1.2 billion at March 31, 2011. Total deposits were $4.4 billion, up slightly from $4.3 billion. During the quarter, the Bank issued approximately $630 million of certificate of deposits ("CDs") at an average rate of approximately 1.75% while maturing CDs were at higher rates. The Total Capital ratio at the Bank was 48.1% and the Tier 1 Leverage ratio was 27.4%. During the second quarter we obtained the necessary regulatory approvals and transferred our U.S Vendor Finance platform into CIT Bank in July. In addition, during the 2011 first quarter, we transferred our small business lending operations into CIT Bank. As previously disclosed, the Federal Deposit Insurance Corporation (FDIC) and the Utah Department of Financial Institutions (UDFI) terminated their Cease and Desist orders on CIT Bank in April. The following presents condensed financial information for CIT Bank. CONDENSED BALANCE SHEETS (dollars in millions) June 30, 2011 December 31, 2010
ASSETS: Cash and deposits with banks $ 800.5 $ 1,299.1 Assets held for sale 576.0 16.6 Net loans 5,080.0 5,224.2 Other assets 478.0 512.8
Total Assets $ 6,934.5 $ 7,052.7
LIABILITIES AND EQUITY: Long-term borrowings, including deposits $ 4,976.3 $ 5,186.5 Other liabilities 44.7 34.0
Total Liabilities 5,021.0 5,220.5 Total Stockholders' Equity 1,913.5 1,832.2
Total Liabilities and Equity $ 6,934.5 $ 7,052.7
CONDENSED STATEMENTS OF OPERATION (dollars in millions) Quarters Ended June 30
2011 2010
Interest income $ 65.9 $ 78.0 Interest expense (26.3) (25.7)
Net interest revenue 39.6 52.3 Provision for credit losses (11.1) (1.9)
Net interest revenue, after credit provision 28.5 50.4 Total other income 14.6 16.5
Total net revenue, net of interest expense and credit provision 43.1 66.9 Total other expenses (12.0) (11.0)
Income before income taxes 31.1 55.9 Provision for income taxes (16.3) (16.4)
Net income $ 14.8 $ 39.5
89 SELECT QUARTERLY FINANCIAL DATA (dollars in millions, except per share data) At or for the Quarters Ended At or for the Six Months Ended June 30, March 31, June 30, June 30, June 30, 2011 2011 2010(1) 2011 2010(1)
Select Statement of Operations Data Net interest revenue $ (203.6) $ (55.7) $ 216.3 $ (259.3) $ 489.6 Provision for credit losses (84.7) (123.4) (246.7) (208.1) (472.8) Total other income 657.8 691.5 756.4 1,349.3 1,332.6 Total other expenses (391.3) (376.9) (455.9) (768.2) (890.3) (Loss) income before provision for income taxes (21.8) 135.5 270.1 113.7 459.1 Net (loss) income (48.0) 65.6 181.6 17.6 326.2 Per Common Share Data (Loss) income per share – diluted $ (0.24) $ 0.33 $ 0.91 $ 0.09 $ 1.63 Book value per common share $ 44.58 $ 44.85 $ 43.52 Tangible book value per common share $ 42.84 $ 42.97 $ 41.26 Performance Ratios Return on average common stockholders' equity (2.14)% 2.93% 8.41% 0.39% 7.62% Net finance revenue as a percentage of average earning assets 0.80% 2.24% 4.32% 1.53% 4.50% Return on average total assets (0.39)% 0.52% 1.28% 0.07% 1.12% Total ending equity to total ending assets 18.63% 17.75% 15.71% Balance Sheet Data Loans including receivables pledged $ 22,284.7 $ 23,736.7 $ 29,388.6 Allowance for loan losses (424.0) (402.5) (356.9) Operating lease equipment, net 10,920.4 11,040.2 10,954.4 Goodwill and intangible assets, net 348.6 376.5 451.8 Total cash and short-term investments 10,055.8 11,812.3 10,678.4 Total assets 48,009.6 50,675.2 55,454.9 Total debt and deposits 35,319.2 37,981.2 43,398.9 Total common stockholders' equity 8,941.5 8,992.3 8,715.2 Total stockholders' equity 8,942.9 8,994.0 8,709.5 Credit Quality(3) Non-accrual loans as a percentage of finance receivables 4.76% 5.50% 6.98% Net credit losses as a percentage of average finance receivables 0.96% 2.34% 1.36% 1.66% 1.11% Reserve for credit losses as a percentage of finance receivables 1.90% 1.70% 1.21% Financial Ratios Tier 1 Capital 19.3% 20.1% 17.3% Total Risk-based Capital 20.2% 21.0% 18.1%
(1) Reflects previously restated balances as disclosed in the Company's December 31, 2010 Form 10-K.
90 AVERAGE BALANCES AND RATES
Quarterly Average Balances(1) and Associated Income (dollars in millions)
June 30, 2011 March 31, 2011 June 30, 2010
Average Average Average Average Average Average
Balance Interest Rate (%) Balance Interest Rate (%) Balance Interest Rate (%)
Deposits with banks $ 6,712.6 $ 5.0 0.30% $ 9,245.2 $ 6.3 0.27% $ 9,855.0 $ 4.6 0.19% Investments 3,986.8 2.8 0.28% 1,841.1 1.4 0.30% 346.2 2.7 3.12% Loans and leases (including held for sale)(2)(3) U.S. 19,633.9 429.7 9.28% 19,910.4 467.4 9.87% 25,248.2 749.0 12.28% Non-U.S. 4,982.2 164.6 13.22% 5,121.7 168.1 13.14% 6,660.7 267.5 16.10%
Total loans and leases(2) 24,616.1 594.3 10.12% 25,032.1 635.5 10.56% 31,908.9 1,016.5 13.10%
Total interest earning assets / interest income(2)(3) 35,315.5 602.1 7.04% 36,118.4 643.2 7.32% 42,110.1 1,023.8 9.93%
Operating lease equipment, net(4) U.S. Operating lease equipment, net(4) 4,888.7 102.4 8.38% 4,891.7 107.8 8.81% 5,000.4 80.5 6.44% Non-U.S. operating lease equipment, net(4) 6,129.0 170.0 11.09% 6,247.8 145.0 9.28% 5,973.1 159.3 10.67%
Total operating lease equipment, net(4) 11,017.7 272.4 9.89% 11,139.5 252.8 9.08% 10,973.5 239.8 8.74%
. Total earning assets (2) 46,333.2 $ 874.5 7.74% 47,257.9 $ 896.0 7.74% 53,083.6 $ 1,263.6 9.68%
Non interest earning assets Cash due from banks 287.2 247.1 255.7 Allowance for loan losses (405.8) (413.1) (271.2) All other non-interest earning assets 3,031.4 3,051.1 3,586.8
Total Average Assets $ 49,246.0 $ 50,143.0 $ 56,654.9
Average Liabilities Borrowings Deposits $ 4,253.8 $ 25.1 2.36% $ 4,461.9 $ 24.4 2.19% $ 4,723.2 $ 18.3 1.55% Long-term borrowings 32,219.5 780.6 9.69% 33,125.1 674.5 8.14% 39,925.9 789.2 7.91%
Total interest-bearing liabilities 36,473.3 $ 805.7 8.84% 37,587.0 $ 698.9 7.44% 44,649.1 $ 807.5 7.23%
U.S. credit balances of factoring clients 1,118.7 962.4 851.5 Non-U.S. credit balances of factoring clients 3.5 2.6 16.2 Non-interest bearing liabilities, noncontrolling interests and shareholders' equity Other liabilities 2,686.3 2,630.3 2,463.0 Noncontrolling interests 2.3 (1.7) (6.0) Stockholders' equity 8,961.9 8,962.4 8,681.1
Total Average Liabilities and Stockholders' Equity $ 49,246.0 $ 50,143.0 $ 56,654.9
Net revenue spread (1.10)% 0.30% 2.45% Impact of non-interest bearing sources 1.71% 1.40% 1.04%
Net revenue/yield on earning assets(2) $ 68.8 0.61% $ 197.1 1.70% $ 456.1 3.49%
91 Six Month Average Balances(1) and Associated Income (dollars in millions) June 30, 2011 June 30, 2010
Average Average Average Average
Balance Interest Rate (%) Balance Interest Rate (%)
Deposits with banks $ 8,336.9 $ 11.3 0.27% $ 9,685.0 $ 8.5 0.18% Investments 2,413.5 4.2 0.35% 348.2 6.1 3.50% Loans and leases (including held for sale)(2)(3) U.S. 19,771.4 897.1 9.57% 26,446.9 1,561.8 12.20% Non-U.S. 5,040.2 332.7 13.21% 6,928.4 552.1 15.98%
Total loans and leases(2) 24,811.6 1,229.8 10.34% 33,375.3 2,113.9 13.00%
Total interest earning assets / interest income(2)(3) 35,562.0 1,245.3 7.21% 43,408.5 2,128.5 10.01%
Operating lease equipment, net(4) U.S. Operating lease equipment, net(4) 4,902.6 210.2 8.58% 4,997.9 181.4 7.26% Non-U.S. operating lease equipment, net(4) 6,181.5 315.0 10.19% 5,964.6 311.5 10.44%
Total operating lease equipment, net(4) 11,084.1 525.2 9.48% 10,962.5 492.9 8.99%
Total earning assets(2) 46,646.1 1,770.5 7.76% 54,371.0 2,621.4 9.80%
Non interest earning assets Cash due from banks 274.7 313.4 Allowance for loan losses (410.4) (189.6) All other non-interest earning assets 3,044.1 3,612.3
Total Average Assets $ 49,554.5 $ 58,107.1
Average Liabilities Borrowings Deposits $ 4,366.9 $ 49.5 2.27% $ 4,872.8 39.1 1.60% Long-term borrowings 32,527.4 1,455.1 8.95% 41,369.2 1,599.8 7.73%
Total interest-bearing liabilities 36,894.3 $ 1,504.6 8.16% 46,242.0 $ 1,638.9 7.09%
U.S. credit balances of factoring clients 1,031.1 848.8 Non-U.S. credit balances of factoring clients 2.9 16.5 Non-interest bearing liabilities, noncontrolling interests and shareholders' equity Other liabilities 2,668.2 2,433.3 Noncontrolling interests 0.1 (6.1) Stockholders' equity 8,957.9 8,572.6
Total Average Liabilities and Stockholders' Equity $ 49,554.5 $ 58,107.1
Net revenue spread (0.40)% 2.71% Impact of non-interest bearing sources 1.57% 0.96%
Net revenue/yield on earning assets(2) $ 265.9 1.17% $ 982.5 3.67%
(1) The average balances presented are derived based on month end balances during the year. Tax exempt income was not significant in any of the years presented. Average rates are impacted by FSA accretion and amortization.
(2) The rate presented is calculated net of average credit balances for factoring clients.
(3) Non-accrual loans and related income are included in the respective categories.
(4) Operating lease rental income is a significant source of revenue; therefore, we have presented the net revenues.
92 The average long-term borrowings balances presented below are derived based on daily balances and the average rates are based on a 30 days per month day count convention. The average rates include FSA amortization and prepayment fees, which due to the annualizing, can distort the derived rate. The debt coupon rates at June 30, 2011, on a pre-FSA basis, are as follows: Secured Borrowings — 2.37%, First Lien Facility — 6.25%, Secured Series A Notes — 7.00%, Secured Series C Notes (exchanged from Series A Notes) — 7.00%, Secured Series C Notes: $1.3 billion at 5.25% and $0.7 billion at 6.625%, and Other Debt — 5.72%. Average Daily Long-term Borrowings Balances and Rates (dollars in millions) Quarters Ended
June 30, 2011 March 31, 2011 June 30, 2010
Average Average Average Average Average Average Balance Interest Rate (%) Balance Interest Rate (%) Balance Interest Rate (%)
Secured Borrowings $ 10,038.4 $ 117.5 4.68% $ 10,658.2 $ 129.6 4.86% $ 12,972.2 $ 133.5 4.12% First Lien Facility 3,039.8 50.7 6.68% 3,041.5 50.4 6.62% 5,857.3 153.0 10.45% Secured Series A Notes(1) 15,363.0 539.3 14.04% 18,756.6 487.0 10.39% 18,882.2 443.7 9.40% Secured Series B Notes(1) – – – 25.1 2.1 16.03% 2,194.7 53.3 9.71% Secured Series C Notes 2,000.0 30.1 6.02% 22.2 0.8 6.02% – – – Secured Series C Notes(1) (Exchanged from Series A) 1,267.2 38.6 12.19% – – – – – – Other Debt 146.8 4.4 12.11% 159.4 4.6 11.46% 210.9 5.7 10.81%
Long-term borrowings $ 31,855.2 $ 780.6 9.80% $ 32,663.0 $ 674.5 8.26% $ 40,117.3 $ 789.2 7.87%
Six Months Ended
June 30, 2011 June 30, 2010
Average Average Average Average Balance Interest Rate (%) Balance Interest Rate (%)
Secured Borrowings $10,346.3 $ 247.1 4.78% $13,799.1 $ 269.4 3.90% First Lien Facility 3,040.6 101.1 6.65% 6,519.6 325.6 9.99% Secured Series A Notes(1) 17,059.8 1,026.3 12.03% 18,844.6 886.8 9.41% Secured Series B Notes(1) 12.5 2.1 16.03% 2,195.6 106.6 9.71% Secured Series C Notes 1,011.1 30.9 6.11% – – – Secured Series C Notes(1) (Exchanged from Series A) 633.6 38.6 12.19% – – – Other Debt 153.1 9.0 11.77% 227.9 11.4 9.98%
Long-term borrowings $32,257.0 $1,455.1 9.02% $41,586.8 $1,599.8 7.69%
(1) The interest expense for Series A Notes (including those exchanged) and Series B Notes include the following accelerated FSA accretion (amortization) and prepayment penalty fees:
Quarters Ended Six Months Ended
June 30, March 31, June 30, June 30, June 30,
2011 2011 2010 2011 2010
First Lien Facility – accelerated FSA $ – $ – $ (26.5) $ – $ (37.4) First Lien Facility – prepayment penalty – – 45.0 – 60.0 Secured Series A Notes – accelerated FSA 113.3 24.7 – 138.0 – Secured Series A Notes – prepayment penalty 50.0 20.0 – 70.0 – Secured Series B Notes – accelerated FSA – (13.5) – (13.5) – Secured Series B Notes – prepayment penalty – 15.0 – 15.0 –
Total accelerated FSA and prepayment penalty $ 163.3 $ 46.2 $ 18.5 $ 209.5 $ 22.6
93 CRITICAL ACCOUNTING ESTIMATES The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America ("GAAP") requires management to use judgment in making estimates and assumptions that affect reported amounts of assets and liabilities, the reported amounts of income and expense during the reporting period and the disclosure of contingent assets and liabilities at the date of the financial statements. We consider accounting estimates relating to the following to be critical in applying our accounting policies: • Assumptions and estimates recorded upon adoption of fresh start accounting • Allowance for Loan Losses • Impaired Loans • Fair Value Determinations • Lease Residual Values • Goodwill and Intangible Assets • Liabilities and Tax Reserves There have been no significant changes to the methodologies and processes used in developing estimates relating to these items from those described in our 2010 Annual Report on Form 10-K.
INTERNAL CONTROLS The Internal Controls Committee is responsible for monitoring and improving internal controls and overseeing the internal controls attestation mandated by Section 404 of the Sarbanes-Oxley Act of 2002 ("SARBOX"). The Committee, which is chaired by the Controller, includes the Chief Financial Officer, the Director of Internal Audit and other senior executives in finance, legal, risk management and information technology. See Item 4. Controls and Procedures for more information.
NON-GAAP FINANCIAL MEASUREMENTS The SEC adopted regulations that apply to any public disclosure or release of material information that includes a non-GAAP financial measure. The accompanying Management's Discussion and Analysis of Financial Condition and Results of Operations and Quantitative and Qualitative Disclosure about Market Risk contain certain non-GAAP financial measures. Non-GAAP financial measures are meant to provide additional information and insight regarding operating results and financial position of the business and in certain cases to provide financial information that is presented to rating agencies and other users of financial information. These measures are not in accordance with, or a substitute for, GAAP and may be different from or inconsistent with non-GAAP financial measures used by other companies. See footnotes below the tables for additional explanation of non-GAAP measurements. 94 Non-GAAP Reconciliations (dollars in millions) Quarters Ended Six Months Ended
June 30, March 31, June 30, June 30, June 30, 2011 2011 2010(4) 2011 2010(4)
Total Net Revenues(1) Interest income $ 602.1 $ 643.2 $ 1,023.8 $ 1,245.3 $ 2,128.5 Rental income on operating leases 417.9 413.3 417.9 831.2 843.7
Finance revenue 1,020.0 1,056.5 1,441.7 2,076.5 2,972.2 Interest expense (805.7) (698.9) (807.5) (1,504.6) (1,638.9) Depreciation on operating lease equipment (145.5) (160.5) (178.1) (306.0) (350.8)
Net finance revenue 68.8 197.1 456.1 265.9 982.5 Other income 239.9 278.2 338.5 518.1 488.9
Total net revenues $ 308.7 $ 475.3 $ 794.6 $ 784.0 $ 1,471.4
Net Operating Lease Revenue(2) Rental income on operating leases $ 417.9 $ 413.3 $ 417.9 $ 831.2 $ 843.7 Depreciation on operating lease equipment (145.5) (160.5) (178.1) (306.0) (350.8)
Net operating lease revenue $ 272.4 $ 252.8 $ 239.8 $ 525.2 $ 492.9
Net Finance Revenue as a % of Average Earning Assets Quarters Ended
June 30, 2011 March 31, 2011 June 30, 2010(4)
Net finance revenue $ 68.8 0.80% $ 197.1 2.24% $ 456.1 4.32% FSA impact on net finance revenue 21.9 0.13% (86.7) (1.13)% (411.1) (3.95)% Secured debt prepayment penalty fee 50.0 0.52% 35.0 0.35% 45.0 0.36%
Adjusted net finance revenue $ 140.7 1.45% $ 145.4 1.46% $ 90.0 0.73%
Six Months Ended
June 30, 2011 June 30, 2010(4)
Net finance revenue $ 265.9 1.53% $ 982.5 4.50% FSA impact on net finance revenue (64.8) (0.51)% (858.4) (4.02)% Secured debt prepayment penalty fee 85.0 0.43% 60.0 0.24%
Adjusted net finance revenue $ 286.1 1.45% $ 184.1 0.72%
June 30, March 31, December 31, June 30, 2011 2011 2010(4) Earning Assets(3) 2010
Loans $ 22,284.7 $ 23,736.7 $ 24,500.5 $ 29,388.6 Operating lease equipment, net 10,920.4 11,040.2 11,136.7 10,954.4 Assets held for sale 1,863.5 1,174.4 1,218.5 572.5 Credit balances of factoring clients (1,084.9) (1,110.7) (935.3) (877.3)
Total earning assets $ 33,983.7 $ 34,840.6 $ 35,920.4 $ 40,038.2
(1) Total net revenues are the combination of net finance revenue and other income and are an aggregation of all sources of revenue for the Company. Total net revenues are used by management to monitor business performance.
(2) Total net operating lease revenue is the combination of rental income on operating leases less depreciation on operating lease equipment. Total net operating lease revenues are used by management to monitor portfolio performance.
(3) Earnings assets are utilized in certain revenue and earnings ratios. Earning assets are net of credit balances of factoring clients. This net amount represents the amounts we fund.
(4) Reflects previously restated balances as disclosed in the Company's December 31, 2010 Form 10-K.
95 Non-accrual Loans (including assets held for sale) After and Before Fresh Start Accounting(1)
June 30, FSA June 30, March 31, FSA March 31, December 31, FSA December 31, 2011 Adjustments 2011 2011 Adjustments 2011 2010 Adjustments 2010
Post-FSA Pre-FSA Post-FSA Pre-FSA Post-FSA Pre-FSA
Corporate Finance
Non-accrual loans 804.4 268.0 1,072.4 1,004.1 278.2 1,282.3 1,239.8 364.2 1,604.0 Total loans 7,423.9 459.1 7,883.0 7,896.1 816.5 8,712.6 8,482.2 1,089.1 9,571.3 Non-accrual loans as a percentage of total loans 10.84% 13.60% 12.72% 14.72% 14.62% 16.76%
Transportation Finance
Non-accrual loans 56.0 7.5 63.5 62.1 8.1 70.2 63.2 8.1 71.3 Total loans 1,356.3 102.2 1,458.5 1,282.6 122.5 1,405.1 1,388.9 147.9 1,536.8 Non-accrual loans as a percentage of total loans 4.13% 4.36% 4.84% 5.00% 4.55% 4.64%
Trade Finance
Non-accrual loans 73.4 – 73.4 98.0 – 98.0 164.4 – 164.4 Total loans 2,538.4 – 2,538.4 2,622.6 – 2,622.6 2,387.4 – 2,387.4 Non-accrual loans as a percentage of total loans 2.89% 2.89% 3.74% 3.74% 6.89% 6.89%
Vendor Finance
Non-accrual loans 127.2 37.5 164.7 140.9 44.9 185.8 147.9 27.0 174.9 Total loans 3,940.4 107.3 4,047.7 4,036.5 143.6 4,180.1 4,166.1 181.9 4,348.0 Non-accrual loans as a percentage of total loans 3.23% 4.07% 3.49% 4.44% 3.55% 4.02%
Consumer
Non-accrual loans 0.8 0.2 1.0 0.9 – 0.9 0.7 0.3 1.0 Total loans 7,025.7 430.8 7,456.5 7,898.9 484.4 8,383.3 8,075.9 508.7 8,584.6 Non-accrual loans as a percentage of total loans 0.01% 0.01% 0.01% 0.01% 0.01% 0.01%
Total
Non-accrual loans 1,061.8 313.2 1,375.0 1,306.0 331.2 1,637.2 1,616.0 399.6 2,015.6 Total loans 22,284.7 1,099.4 23,384.1 23,736.7 1,567.0 25,303.7 24,500.5 1,927.6 26,428.1 Non-accrual loans as a percentage of total loans 4.76% 5.88% 5.50% 6.47% 6.60% 7.63%
(1) Non-accrual loans are presented after and before fresh start accounting adjustments as an aid to trend analysis. As a result of fresh start accounting, the resulting metrics are not comparable to prior balances. Loans included in held for sale no longer have FSA adjustments.
FORWARD-LOOKING STATEMENTS Certain statements contained in this document are "forward-looking statements" within the meaning of the U.S. Private Securities Litigation Reform Act of 1995. All statements contained herein that are not clearly historical in nature are forward-looking and the words "anticipate," "believe," "could," "expect," "estimate," "forecast," "intend," "plan," "potential," "project," "target" and similar expressions are generally intended to identify forward-looking statements. Any forward-looking statements contained herein, in press releases, written statements or other documents filed with the Securities and Exchange Commission or in communications and discussions with investors and analysts in the normal course of business through meetings, webcasts, phone calls and conference calls, concerning our operations, economic performance and financial condition are subject to known and unknown risks, uncertainties and contingencies. Forward-looking statements are included, for example, in the discussions about: • our liquidity risk and capital management, including our capital, leverage, and credit ratings, our liquidity plan, and our plans and the potential transactions designed to enhance our liquidity and capital, • our plans to change our funding mix and to access new sources of funding to broaden our use of deposit taking, • our credit risk management and credit quality, • our asset/liability risk management, • accretion and amortization of fresh start accounting adjustments, • our funding, borrowing costs and net finance revenue, 96 • our operational risks, including success of systems enhancements and expansion of risk management and control functions, • our mix of portfolio asset classes, including growth initiatives, acquisitions and divestitures, new products, new business and customer retention, • legal risks, • our growth rates, • our commitments to extend credit or purchase equipment, and • how we may be affected by legal proceedings All forward-looking statements involve risks and uncertainties, many of which are beyond our control, which may cause actual results, performance or achievements to differ materially from anticipated results, performance or achievements. Also, forward-looking statements are based upon management's estimates of fair values and of future costs, using currently available information. Therefore, actual results may differ materially from those expressed or implied in those statements. Factors, in addition to those disclosed in "Risk Factors", that could cause such differences include, but are not limited to: • capital markets liquidity, • risks of and/or actual economic slowdown, downturn or recession, • industry cycles and trends, • uncertainties associated with risk management, including credit, prepayment, asset/liability, interest rate and currency risks, • estimates and assumptions used to fair value the balance sheet in accordance with fresh start accounting and actual variation between the estimated fair values and the realized values, • adequacy of reserves for credit losses, • risks inherent in changes in market interest rates and quality spreads, • funding opportunities, deposit taking capabilities and borrowing costs, • risks that the restructuring of the Company's capital structure did not result in sufficient additional capital or improved liquidity, • risks that the Company will be unable to comply with the terms of the Written Agreement with the Reserve Bank, • conditions and/or changes in funding markets and our access to such markets, including commercial paper, secured and unsecured term debt and the asset-backed securitization markets, • risks of implementing new processes, procedures, and systems, • risks associated with the value and recoverability of leased equipment and lease residual values, • application of fair value accounting in volatile markets, • application of goodwill accounting in a recessionary economy, • changes in laws or regulations governing our business and operations, • changes in competitive factors, • demographic trends, 97 • customer retention rates, • future acquisitions and dispositions of businesses or asset portfolios, and • regulatory changes and/or developments. Any or all of our forward-looking statements here or in other publications may turn out to be wrong, and there are no guarantees about our performance. We do not assume the obligation to update any forward-looking statement for any reason.
ITEM 4. Controls and Procedures (a) Evaluation of Disclosure Controls and Procedures Under the supervision of and with the participation of management, including our principal executive officer and principal financial officer, we evaluated the effectiveness of our disclosure controls and procedures, as such term is defined in Rules 13a-15(e) and 15d-15(e) promulgated under the Securities and Exchange Act of 1934, as amended (the "Exchange Act") as of June 30, 2011. Based upon that evaluation, the principal executive officer and principal financial officer concluded that the Company's disclosure controls and procedures were not effective as of June 30, 2011 due to the fact that there was a material weakness in our internal control over financial reporting as of December 31, 2010 as discussed in more detail below. Based on a number of factors, including remediation actions taken to address the material weakness, we believe the consolidated financial statements in this Quarterly Report fairly present, in all material respects, our financial position, results of operations and cash flows as of the dates, and for the periods, presented, in conformity with generally accepted accounting principles. As disclosed in Part II, Item 9A of the Company's December 31, 2010 Form 10-K, management identified a series of deficiencies that in aggregate as of December 31, 2010 were determined to be a material weakness related to the Company's application of Fresh Start Accounting ("FSA"). Specifically, the Company did not have effective controls over the processes to ensure proper accretion of discounts for loan prepayments, modifications, and charge-offs. The material weakness arose due to the complexities of applying FSA at the time of emergence from Bankruptcy and the ongoing complexity of the processes necessary to properly record accretion. As of June 30, 2011, management believes it has placed in operation controls to address the material weakness; however given the timing of certain remediation activities there was not sufficient evidence to conclude upon their sustained effectiveness. As a result, management is evaluating the operating effectiveness of the controls implemented to ensure sustainability and will take further remediation actions as may be necessary. The Audit Committee has directed management to monitor and test the controls implemented and develop additional controls should any of the new controls require additional enhancement. In addition, under the direction of the Audit Committee, management will continue to review and make necessary changes to the overall design of the Company's internal control environment, as well as policies and procedures to improve the overall effectiveness of internal control over financial reporting. Management believes the measures described above and others that will be implemented as necessary will remediate the control deficiencies the Company has identified and strengthen its internal control over financial reporting. Management is committed to continuous improvement of the Company's internal control processes and will continue to diligently review the Company's financial reporting controls and procedures. As management continues to evaluate and work to improve internal control over financial reporting, the Company may determine to take additional measures to address control deficiencies or determine to modify, or in appropriate circumstances not to complete, certain of the remediation measures described above. 98 Management does not expect that our disclosure controls or our internal controls over financial reporting will prevent all errors and frauds. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control systems are met. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues, if any, within a company have been detected. Such limitations include the fact that human judgment in decision-making can be faulty and that breakdowns in internal control can occur because of human failures, such as simple errors or mistakes or intentional circumvention of the established process. (b) Changes In Internal Control Over Financial Reporting Except as described above, there have been no changes in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that occurred during the quarter ended June 30, 2011 that have materially affected, or are reasonably likely to materially affect, the Company's internal control over financial reporting.
Part Two — Other Information
ITEM 1. Legal Proceedings CIT is currently involved, and from time to time in the future may be involved, in a number of judicial, regulatory, and arbitration proceedings relating to matters that arise in connection with the conduct of its business (collectively, "Litigation"), certain of which Litigation matters are described in Note 12 — Contingencies of Item 1. Consolidated Financial Statements. In view of the inherent difficulty of predicting the outcome of Litigation matters, particularly when such matters are in their early stages or where the claimants seek indeterminate damages, CIT cannot state with confidence what the eventual outcome of the pending Litigation will be, what the timing of the ultimate resolution of these matters will be, or what the eventual loss, fines, or penalties related to each pending matter may be. In accordance with applicable accounting guidance, CIT establishes reserves for Litigation when those matters present loss contingencies as to which it is both probable that a loss will occur and the amount of such loss can be reasonably estimated. Based on currently available information, CIT believes that the results of Litigation that is currently pending, taken together, will not have a material adverse effect on the Company's financial condition, but may be material to the Company's operating results or cash flows for any particular period, depending in part on its operating results for that period. The actual results of resolving such matters may be substantially higher than the amounts reserved. For more information about pending legal proceedings, including an estimate of certain reasonably possible losses in excess of reserved amounts, see Note 12 — Contingencies of Item 1. Consolidated Financial Statements.
ITEM 1A. Risk Factors For a discussion of certain risk factors affecting CIT, see Part I, Item 1A: Risk Factors, of CIT's 2010 Annual Report on Form 10-K and Forward-Looking Statements of this Form 10-Q.
ITEM 2. Unregistered Sales of Equity Securities and Use of Proceeds No purchases of CIT equity securities were made during the 2011 second quarter and there were no such equity securities that may yet be purchased under any repurchase plans or programs.
ITEM 5. Other Information On May 10, 2011, CIT held its 2011 Annual Meeting of Stockholders (the "Annual Meeting"), at the Company's offices in Livingston, New Jersey. A total of 200,478,847 shares of the Company's common stock were entitled to vote as of March 14, 2011, the record date for the Annual Meeting. There were 176,365,811 shares present in person or by proxy at the Annual Meeting. Among other matters acted upon at the Annual Meeting, the stockholders were asked to cast an advisory (non-binding) vote on the frequency with which advisory (non-binding) votes should be held on the compensation of the Company's named executive officers. As reported on Form 8-K filed May 10, 2011, the advisory (non-binding) vote of the shareholders supported holding an advisory (non-binding) vote on the compensation of the Company's named executive officers, pursuant to the SEC's compensation disclosure rules, each year based on the following votes:
One Year Two Years Three Years Abstain 150,530,760 67,213 8,501,118 567,088 In light of this vote, the Board of Directors has determined that it will hold an advisory (non-binding) vote of the shareholders on the compensation of the Company's named executive officers every year. 99 ITEM 6. Exhibits (a) Exhibits
3.1 Third Amended and Restated Certificate of Incorporation of the Company, dated December 8, 2009 (incorporated by reference to Exhibit 3.1 to Form 8-K filed December 9, 2009).
3.2 Amended and Restated By-laws of the Company, as amended through December 8, 2009 (incorporated by reference to Exhibit 3.2 to Form 8-K filed December 9, 2009).
4.1 Indenture dated as of December 10, 2009 between CIT Group Inc. and Deutsche Bank Trust Company Americas (incorporated by reference to Exhibit 4.1 to Form 8-K filed December 16, 2009).
4.2 First Supplemental Indenture dated as of December 10, 2009 among CIT Group Inc., certain Guarantors named therein and Deutsche Bank Trust Company Americas for the issuance of series A second-priority secured notes (incorporated by reference to Exhibit 4.2 to Form 8-K filed December 16, 2009).
4.3 First Amendment to Series A First Supplemental Indenture among CIT, certain Guarantors named therein, and Deutsche Bank Trust Company Americas, dated as of May 31, 2011 (incorporated by reference to Exhibit 4.4 to Form 8-K filed June 20, 2011
4.4 Indenture dated as of December 10, 2009 between CIT Group Funding Company of Delaware, LLC and Deutsche Bank Trust Company Americas (incorporated by reference to Exhibit 4.3 to Form 8-K filed December 16, 2009).
4.5 First Supplemental Indenture dated as of December 10, 2009 among CIT Group Funding Company of Delaware, LLC, CIT Group Inc. and the other Guarantors named therein and Deutsche Bank Trust Company Americas for the issuance of series B second-priority secured notes (incorporated by reference to Exhibit 4.4 to Form 8-K filed December 16, 2009).
4.6 Indenture dated as of January 20, 2006 between CIT Group Inc. and The Bank of New York Mellon (as successor to JPMorgan Chase Bank N.A.) for the issuance of senior debt securities (incorporated by reference to Exhibit 4.3 to Form S-3 filed January 20, 2006).
4.7 First Supplemental Indenture dated as of February 13, 2007 between CIT Group Inc. and The Bank of New York Mellon (as successor to JPMorgan Chase Bank N.A.) for the issuance of senior debt securities (incorporated by reference to Exhibit 4.1 to Form 8-K filed on February 13, 2007).
4.8 Third Supplemental Indenture dated as of October 1, 2009, between CIT Group Inc. and The Bank of New York Mellon (as successor to JPMorgan Chase Bank N.A.) relating to senior debt securities (incorporated by reference to Exhibit 4.4 to Form 8-K filed on October 7, 2009).
4.9 Fourth Supplemental Indenture dated as of October 16, 2009 between CIT Group Inc. and The Bank of New York Mellon (as successor to JPMorgan Chase Bank N.A.) relating to senior debt securities (incorporated by reference to Exhibit 4.1 to Form 8-K filed October 19, 2009).
4.10 Third Amended and Restated Credit and Guaranty Agreement, dated as of August 11, 2010, among CIT Group Inc., certain subsidiaries of CIT Group Inc., the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent, and Banc of America Securities LLC, Deutsche Bank Securities Inc. and Morgan Stanley Senior Funding, Inc., as joint lead arrangers and joint bookrunners, Deutsche Bank Securities Inc. and Morgan Stanley Senior Funding, Inc., as syndication agents, RBC Capital Markets and UBS Securities LLC, as documentation agents, and Blaylock Robert Van, LLC and Castleoak Securities, L.P., as Senior Managing Agents (incorporated by reference to Exhibit A to Exhibit 10.1 to Form 8-K filed August 12, 2010).
4.11 Third Restatement Agreement dated as of August 11, 2010 among CIT Group Inc., certain subsidiaries of CIT Group Inc., Bank of America, N.A., as administrative agent and collateral agent, and the lenders party thereto (incorporated by reference to Exhibit 10.1 to Form 8-K filed August 12, 2010). 100 4.12 Framework Agreement, dated July 11, 2008, among ABN AMRO Bank N.V., as arranger, Madeleine Leasing Limited, as initial borrower, CIT Aerospace International, as initial head lessee, and CIT Group Inc., as guarantor, as amended by the Deed of Amendment, dated July 19, 2010, among The Royal Bank of Scotland N.V. (f/k/a ABN AMRO Bank N.V.), as arranger, Madeleine Leasing Limited, as initial borrower, CIT Aerospace International, as initial head lessee, and CIT Group Inc., as guarantor, as supplemented by Letter Agreement No. 1 of 2010, dated July 19, 2010, among The Royal Bank of Scotland N.V., as arranger, CIT Aerospace International, as head lessee, and CIT Group Inc., as guarantor, as amended and supplemented by the Accession Deed, dated July 21, 2010, among The Royal Bank of Scotland N.V., as arranger, Madeleine Leasing Limited, as original borrower, and Jessica Leasing Limited, as acceding party, as supplemented by Letter Agreement No. 2 of 2010, dated July 29, 2010, among The Royal Bank of Scotland N.V., as arranger, CIT Aerospace International, as head lessee, and CIT Group Inc., as guarantor, relating to certain Export Credit Agency sponsored secured financings of aircraft and related assets (incorporated by reference to Exhibit 4.11 to Form 10-K filed March 10, 2011).
4.13 Form of All Parties Agreement among CIT Aerospace International, as head lessee, Madeleine Leasing Limited, as borrower and lessor, CIT Group Inc., as guarantor, various financial institutions, as original ECA lenders, ABN AMRO Bank N.V., Paris Branch, as French national agent, ABN AMRO Bank N.V., Niederlassung Deutschland, as German national agent, ABN AMRO Bank N.V., London Branch, as British national agent, ABN AMRO Bank N.V., London Branch, as ECA facility agent, ABN AMRO Bank N.V., London Branch, as security trustee, and CIT Aerospace International, as servicing agent, relating to certain Export Credit Agency sponsored secured financings of aircraft and related assets during the 2008 and 2009 fiscal years (incorporated by reference to Exhibit 4.12 to Form 10-K filed March 10, 2011).
4.14 Form of ECA Loan Agreement among Madeleine Leasing Limited, as borrower, various financial institutions, as original ECA lenders, ABN AMRO Bank N.V., Paris Branch, as French national agent, ABN AMRO Bank N.V., Niederlassung Deutschland, as German national agent, ABN AMRO Bank N.V., London Branch, as British national agent, ABN AMRO Bank N.V., London Branch, as ECA facility agent, ABN AMRO Bank N.V., London Branch, as security trustee, and CIT Aerospace International, as servicing agent, relating to certain Export Credit Agency sponsored secured financings of aircraft and related assets during the 2008 and 2009 fiscal years (incorporated by reference to Exhibit 4.13 to Form 10-K filed March 10, 2011).
4.15 Form of Aircraft Head Lease between Madeleine Leasing Limited, as lessor, and CIT Aerospace International, as head lessee, relating to certain Export Credit Agency sponsored secured financings of aircraft and related assets during the 2008 and 2009 fiscal years (incorporated by reference to Exhibit 4.14 to Form 10-K filed March 10, 2011).
4.16 Form of Proceeds and Intercreditor Deed among Madeleine Leasing Limited, as borrower and lessor, various financial institutions, ABN AMRO Bank N.V., Paris Branch, as French national agent, ABN AMRO Bank N.V., Niederlassung Deutschland, as German national agent, ABN AMRO Bank N.V., London Branch, as British national agent, ABN AMRO Bank N.V., London Branch, as ECA facility agent, ABN AMRO Bank N.V., London Branch, as security trustee, relating to certain Export Credit Agency sponsored secured financings of aircraft and related assets during the 2008 and 2009 fiscal years (incorporated by reference to Exhibit 4.15 to Form 10-K filed March 10, 2011).
4.17 Form of All Parties Agreement among CIT Aerospace International, as head lessee, Jessica Leasing Limited, as borrower and lessor, CIT Group Inc., as guarantor, various financial institutions, as original ECA lenders, Citibank International plc, as French national agent, Citibank International plc, as German national agent, Citibank International plc, as British national agent, The Royal Bank of Scotland N.V., London Branch, as ECA facility agent, The Royal Bank of Scotland N.V., London Branch, as security trustee, CIT Aerospace International, as servicing agent, and Citibank, N.A., as administrative agent, relating to certain Export Credit Agency sponsored secured financings of aircraft and related assets during the 2010 fiscal year (incorporated by reference to Exhibit 4.16 to Form 10-K filed March 10, 2011).
4.18 Form of ECA Loan Agreement among Jessica Leasing Limited, as borrower, various financial institutions, as original ECA lenders, Citibank International plc, as French national agent, Citibank International plc, as German national agent, Citibank International plc, as British national agent, The Royal Bank of Scotland N.V., London Branch, as ECA facility agent, The Royal Bank of Scotland N.V., London Branch, as security trustee, and Citibank, N.A., as administrative agent, relating to certain Export Credit Agency sponsored secured financings of aircraft and related assets during the 2010 fiscal year (incorporated by reference to Exhibit 4.17 to Form 10-K filed March 10, 2011).
4.19 Form of Aircraft Head Lease between Jessica Leasing Limited, as lessor, and CIT Aerospace International, as head lessee, relating to certain Export Credit Agency sponsored secured financings of aircraft and related assets during the 2010 fiscal year (incorporated by reference to Exhibit 4.18 to Form 10-K filed March 10, 2011). 101 4.20 Form of Proceeds and Intercreditor Deed among Jessica Leasing Limited, as borrower and lessor, various financial institutions, as original ECA lenders, Citibank International plc, as French national agent, Citibank International plc, as German national agent, Citibank International plc, as British national agent, The Royal Bank of Scotland N.V., London Branch, as ECA facility agent, The Royal Bank of Scotland N.V., London Branch, as security trustee, and Citibank, N.A., as administrative agent, relating to certain Export Credit Agency sponsored secured financings of aircraft and related assets during the 2010 fiscal year (incorporated by reference to Exhibit 4.19 to Form 10-K filed March 10, 2011).
4.21 Indenture, dated as of March 30, 2011, between CIT Group Inc. and Deutsche Bank Trust Company Americas, as trustee (incorporated by reference to Exhibit 4.1 to Form 8-K filed March 31, 2011).
4.22 First Supplemental Indenture, dated as of March 30, 2011, between CIT Group Inc., the Guarantors named therein, and Deutsche Bank Trust Company Americas, as trustee (including the Form of 5.250% Note due 2014 and the Form of 6.625% Note due 2018) (incorporated by reference to Exhibit 4.2 to Form 8-K filed March 31, 2011).
4.23 Second Supplemental Indenture among CIT, certain Guarantors named therein and Deutsche Bank Trust Company Americas (as trustee, Series C parent collateral agent, and Series C subsidiary collateral agent), dated as of June 15, 2011 ((incorporated by reference to Exhibit 4.1 to Form 8-K filed June 20, 2011).
4.24 Registration Rights Agreement, dated as of March 30, 2011, among CIT Group Inc., the Guarantors named therein, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc., Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and J.P. Morgan Securities LLC, as representatives for the initial purchasers named therein (incorporated by reference to Exhibit 10.1 to Form 8-K filed March 31, 2011).
4.25 Registration Rights Agreement, dated as of June 15, 2011, among CIT Group Inc., the Guarantors named therein, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as dealer-manager (incorporated by reference to Exhibit 10.1 to Form 8-K filed June 20, 2011).
10.1 Form of Separation Agreement by and between Tyco International Ltd. and CIT (incorporated by reference to Exhibit 10.2 to Amendment No. 3 to the Registration Statement on Form S-1 filed June 26, 2002)
10.2 Form of Financial Services Cooperation Agreement by and between Tyco International Ltd. and CIT (incorporated by reference to Exhibit 10.3 to Amendment No. 2 to the Registration Statement on Form S-1 filed June 12, 2002).
10.3* Amended and Restated CIT Group Inc. Long-Term Incentive Plan (as amended and restated effective December 10, 2009) (incorporated by reference to Exhibit 4.1 to Form S-8 filed January 11, 2010).
10.4* CIT Group Inc. Supplemental Retirement Plan (As Amended and Restated Effective as of January 1, 2008) (incorporated by reference to Exhibit 10.27 to Form 10-Q filed May 12, 2008).
10.5* CIT Group Inc. Supplemental Savings Plan (As Amended and Restated Effective as of January 1, 2008) (incorporated by reference to Exhibit 10.28 to Form 10-Q filed May 12, 2008).
10.6* New Executive Retirement Plan of CIT Group Inc. (As Amended and Restated as of January 1, 2008) (incorporated by reference to Exhibit 10.29 to Form 10-Q filed May 12, 2008).
10.7* Letter Agreement, effective February 8, 2010, between CIT Group Inc. and John A. Thain (incorporated by reference to Exhibit 10.1 to Form 8-K filed February 8, 2010).
10.8* Form of CIT Group Inc. Three Year Stock Salary Award Agreement, dated February 8, 2010 (incorporated by reference to Exhibit 10.2 to Form 8-K filed February 8, 2010).
10.9* Form of CIT Group Inc. One Year Stock Salary Award Agreement, dated February 8, 2010 (incorporated by reference to Exhibit 10.3 to Form 8-K filed February 8, 2010).
10.10**Confirmation; Credit Support Annex, Master Agreement and ISDA Schedule, each dated June 6, 2008 and between CIT Financial Ltd. and Goldman Sachs International evidencing a $3 billion securities based financing facility (incorporated by reference to Exhibit 10.34 to Form 10-Q filed August 11, 2008).
10.11 Order to Cease and Desist, in the matter of CIT Bank, Salt Lake City, Utah, dated July 16, 2009, issued by the Federal Deposit Insurance Corporation (incorporated by reference to Exhibit 10.39 to Form 10-Q filed August 17, 2009). 102 10.12 Order to Cease and Desist, in the matter of CIT Bank, Salt Lake City, Utah, dated July 16, 2009, issued by the Utah Department of Financial Institutions (incorporated by reference to Exhibit 10.40 to Form 10-Q filed August 17, 2009).
10.13 Written Agreement, dated August 12, 2009, between CIT Group Inc. and the Federal Reserve Bank of New York (incorporated by reference to Exhibit 10.1 of Form 8-K filed August 13, 2009).
10.14**Amended and Restated Confirmation regarding Total Return Swap Facility, dated as of October 28, 2009, by and between CIT Financial Ltd. and Goldman Sachs International (incorporated by reference to Exhibit 10.1 to Form 8-K/A filed May 13, 2010).
10.15 Form of CIT Group Inc. Two Year Restricted Stock Unit Award Agreement, dated July 29, 2010 (incorporated by reference to Exhibit 10.31 to Form 10-Q filed August 9, 2010).
10.16* Letter Agreement, dated June 2, 2010, between CIT Group Inc. and Scott T. Parker (incorporated by reference to Exhibit 99.3 to Form 8-K filed July 6, 2010).
10.17 Form of CIT Group Inc. Long-term Incentive Plan Restricted Stock Unit Retention Award Agreement (incorporated by reference to Exhibit 10.33 to Form 10-Q filed August 9, 2010).
10.18 Form of CIT Group Inc. Long-Term Incentive Plan Restricted Stock Unit Award Agreement (incorporated by reference to Exhibit 10.34 to Form 10- Q filed August 9, 2010).
10.19 Form of CIT Group Inc. Long-term Incentive Plan Stock Option Award Agreement (One Year Vesting) (incorporated by reference to Exhibit 10.35 to Form 10-Q filed August 9, 2010).
10.20 Form of CIT Group Inc. Long-term Incentive Plan Stock Option Award Agreement (Three Year Vesting) (incorporated by reference to Exhibit 10.36 to Form 10-Q filed August 9, 2010).
10.21 Form of CIT Group Inc. Long-term Incentive Plan Restricted Stock Award Agreement (One Year Vesting) (incorporated by reference to Exhibit 10.37 to Form 10-Q filed August 9, 2010).
10.22 Form of CIT Group Inc. Long-term Incentive Plan Restricted Stock Award Agreement (Three Year Vesting) (incorporated by reference to Exhibit 10.38 to Form 10-Q filed August 9, 2010).
10.23 Form of CIT Group Inc. Long-term Incentive Plan Restricted Stock Unit Director Award Agreement (Initial Grant) (incorporated by reference to Exhibit 10.39 to Form 10-Q filed August 9, 2010).
10.24 Form of CIT Group Inc. Long-term Incentive Plan Restricted Stock Unit Director Award Agreement (Annual Grant) (incorporated by reference to Exhibit 10.40 to Form 10-Q filed August 9, 2010).
10.25 Form of Tax Agreement by and between Tyco International Ltd. and CIT (incorporated by reference to Exhibit 10.27 to Amendment No. 2 to the Registration Statement on Form S-1 filed June 12, 2002).
10.26* Amended and Restated Employment Agreement, dated as of May 7, 2008, between CIT Group Inc. and C. Jeffrey Knittel (incorporated by reference to Exhibit 10.35 to Form 10-K filed March 2, 2009).
10.27* Extension of Term of Employment Agreement, dated as of November 24, 2008, between CIT Group Inc. and C. Jeffrey Knittel (incorporated by reference to Exhibit 10.36 to Form 10-K filed March 2, 2009).
10.28* Amendment to Employment Agreement, dated December 22, 2008, between CIT Group Inc. and C. Jeffrey Knittel (incorporated by reference to Exhibit 10.37 to Form 10-K filed March 2, 2009).
10.29* Extension of Term of Employment Agreement, dated December 21, 2009, between CIT Group Inc. and C. Jeffrey Knittel (incorporated by reference to Exhibit 10.24 to Form 10-K filed March 16, 2010).
10.30* Extension of Term of Employment Agreement, dated March 14, 2011, between CIT Group Inc. and C. Jeffrey Knittel.
10.31* Letter Agreement, dated April 21, 2010, between CIT Group Inc. and Nelson J. Chai.
10.32* Letter Agreement, dated April 8, 2010, between CIT Group Inc. and Lisa K. Polsky.
10.33 Form of CIT Group Inc. Long-Term Incentive Plan Restricted Stock Unit Award Agreement (with Good Reason).
10.34 Form of CIT Group Inc. Long-Term Incentive Plan Restricted Stock Unit Award Agreement (without Good Reason).
10.35 Airbus A320 NEO Family Aircraft Purchase Agreement, dated as of July 28, 2011, between Airbus S.A.S. and C.I.T. Leasing Corporation. 103 31.1 Certification of John A. Thain pursuant to Rules 13a-14(a) and 15d-14(a) of the Securities Exchange Commission, as promulgated pursuant to Section 13(a) of the Securities Exchange Act and Section 302 of the Sarbanes-Oxley Act of 2002.
31.2 Certification of Scott T. Parker pursuant to Rules 13a-14(a) and 15d-14(a) of the Securities Exchange Commission, as promulgated pursuant to Section 13(a) of the Securities Exchange Act and Section 302 of the Sarbanes-Oxley Act of 2002.
32.1**** Certification of John A. Thain pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2**** Certification of Scott T. Parker pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
99.1 Senior Intercreditor and Subordination Agreement, dated as of December 10, 2009, among Bank of America, N.A., as First Lien Credit Facility Representative and First Lien Agent, Deutsche Bank Trust Company of America, as Series A Representative and Series A Collateral Agent and as Series B Representative and Series B Collateral Agent, CIT Group Funding Company of Delaware, LLC, as CIT Leasing Secured Party, and CIT Group Inc. and certain of its subsidiaries, as obligors (incorporated by reference to Exhibit 99.1 to Form 8-K/A filed May 13, 2010).
99.2 Junior Intercreditor Agreement, dated as of December 10, 2009, among Deutsche Bank Trust Company of America, as Series A Collateral Agent and as Series B Collateral Agent, CIT Group Funding Company of Delaware, LLC, as CIT Leasing Secured Party, and CIT Group Inc. and certain of its subsidiaries, as obligors (incorporated by reference to Exhibit 99.2 to Form 8-K/A filed May 13, 2010).
101.INS XBRL Instance Document (Includes the following financial information included in the Company's Quarterly Report on Form 10- Q for the quarter ended June 30, 2011, formatted in XBRL (eXtensible Business Reporting Language): (i) the Consolidated Statements of Operations, (ii) the Consolidated Balance Sheets, (iii) the Consolidated Statements of Changes in Stockholders' Equity and Comprehensive Income, (iv) the Consolidated Statements of Cash Flows, and (v) Notes to Consolidated Financial Statements.)
101.SCH XBRL Taxonomy Extension Schema Document.
101.CAL XBRL Taxonomy Extension Calculation Linkbase Document.
101.LAB XBRL Taxonomy Extension Label Linkbase Document.
101.PRE XBRL Taxonomy Extension Presentation Linkbase Document.
101.DEF XBRL Taxonomy Extension Definition Linkbase Document. * Indicates a management contract or compensatory plan or arrangement.
** Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission in accordance with an order granting confidential treatment pursuant to the Securities Exchange Act of 1934, as amended.
***Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission in accordance with an application for confidential treatment pursuant to the Securities Exchange Act of 1934, as amended.
****This information is furnished and not filed for purposes of Section 18 of the Securities Exchange Act of 1934 and is not incorporated by reference into any filing under the Securities Act of 1933.
104 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. August 9, 2011 CIT GROUP INC.
/s/ Scott T. Parker
Scott T. Parker Executive Vice President and Chief Financial Officer
/s/ Carol Hayles
Carol Hayles Senior Vice President and Controller 105 Exhibit 10.30 CIT GROUP, INC. 11 West 42nd Street New York, NY 10036
Via Hand Delivery March 14, 2011 C. Jeffrey Knittel CIT Group, Inc. 11 West 42nd Street New York, NY 10036 Re. Extension of Term of Employment Agreement Dear Jeff: This letter will confirm that the Board of Directors of CIT Group Inc. (the "Company") has determined to extend the "Term" of your Amended and Restated Employment Agreement with the Company dated as of May 8, 2008, as amended (your "Employment Agreement") for one year, through December 31, 2011. You and the Company agree that the provisions of your Employment Agreement, as revised and extended by this letter remain in full force and the Term shall continue through December 31, 2011 without interruption. Nothing in this letter is intended to confer any rights on any person other than you or the Company. Please acknowledge your agreement by signing the enclosed copy of this letter and returning it to me as soon as possible. On behalf of the Board, I thank you for your continued service with the Company. Very truly yours, Lisa D. Zonino Executive Vice President Human Resources
Exhibit 10.31
James J. Duffy Executive Vice President Human Resources April 21, 2010 Mr. Nelson Chai
11 West 42nd Street
New York, NY 10036 Dear Nelson, We are pleased to confirm our offer to you of employment to join CIT Group Inc. ("CIT") as [Executive Vice President, Head of Strategy, Technology and Banking]. This letter summarizes the terms and conditions of our offer of employment and contains important information regarding your employment by CIT. Subject to the approval of your appointment by CIT's Board of Directors (the "Board"), you will be an executive officer of CIT for purposes of Section 16 of the Securities Exchange Act of 1934. As an executive officer, your compensation and benefits, including annual bonuses and equity awards, would be subject to the approval of the Board. If you accept this offer, your annualized base salary rate will be $500,000, payable bi-weekly. Your position will initially report to John Thain, the Chairman and Chief Executive Officer. In addition, subject to the award being approved by the Board, in accordance with the CIT Equity Compensation Award Policy and the administration of the CIT Group Inc. Amended and Restated Long Term Incentive Plan, you will receive an award of $2,500,000 in the form of Restricted Stock Units (the "RSUs") on the first day of your employment (the "Grant Date"). Your RSUs will be scheduled to vest 50% on the first anniversary of the Grant Date, and the remaining 50% on the third anniversary of the Grant Date. The number of RSUs that you may be awarded will be determined based on the closing price of CIT's common stock trading on the New York Stock Exchange on the Grant Date. Upon vesting, the RSUs will be paid within forty-five days in the form of shares of CIT common stock, less applicable tax and other withholdings. The terms and conditions of your RSUs will be fully described in an Award Agreement sent to you following the Grant Date. You must be actively employed on the Grant Date to receive your RSUs. Consistent with other similarly situated CIT employees, you will be eligible to receive annual and long-term incentive awards based on, among other things, your performance and CIT's results. Incentive awards may be comprised of cash and/or non-cash awards and are typically awarded during the first quarter following the performance year to which they relate (i.e., Q1 2011 for performance year 2010). For the purpose of clarity, you will be eligible to receive an incentive award for performance year 2010. Any annual and long-term incentives awarded to you in 2011 attributable to 2010 505 Fifth Avenue – 8th Floor t: 212.771.9403 f: 212.771.9407 New York, NY 10017 [email protected] Mr. Nelson Chai
April 21, 2010
Page 2 of 4 performance will take into account the $2,500,000 of RSUs to be granted on the first day of your employment, described above. You will be eligible for 20 vacation days per year. For 2010, the number of vacation days you will be eligible for will be prorated based on your actual date of hire. In addition, you will be eligible for company paid holidays and personal days per CIT's time off policy. Upon commencement of your employment, you will be eligible for pension, health and welfare benefits and will receive a benefits enrollment package shortly following your date of hire. Enclosed is a summary of CIT's current benefits. To receive health benefits coverage, you must enroll via the online benefits enrollment system within 30 days from the date you begin employment. Health benefits coverage will commence retroactively to your first day of work if you enroll by the deadline. This offer of employment is contingent upon (i) the approval of the Board and the Federal Reserve Bank of New York, (ii) the satisfactory completion of all pre- and post-employment background and other checks, (iii) your satisfactory completion of a drug screen; and (iv) your execution of CIT's Non Competition, Non-Solicitation and Confidentiality Agreement (the "Agreement"), a copy of which Agreement is enclosed for your review. Your official start date will be determined upon completion of pre-employment screening. The enclosed company materials describe certain employment prerequisites and include forms that you must complete and submit to the Human Resources department on your first day of employment. If your employment with CIT terminates at any time for any reason, the compensation outlined in this letter will cease on your last day of employment. By accepting this offer, you represent, warrant and agree that: (i) you have not taken and will not take any confidential or proprietary materials (or copies thereof) from your prior employers;
(ii) you will not use any confidential, proprietary or trade secret information in violation of any contractual or common-law obligation to your former employers;
(iii) you are not subject to any agreement, plan or policy applicable to you that would prevent or restrict you from accepting this offer of employment and engaging in activities competitive with the activities of your former employers;
(iv) other than the agreement(s) restricting your post-employment agreements with any of your prior employers that you disclosed on your CIT Employment Application form, you are not subject to any other agreement, plan or policy purporting to restrict your ability to solicit any employee, customer or prospective customer of any prior employer, or if you did not disclose to CIT any agreements with any of your prior employers restricting your post-employment activities, that you are not subject to any agreement, plan or policy purporting to restrict your ability to solicit any employee, customer or prospective customer of any prior employer;
(v) you have not requested, solicited or encouraged, and will not request, solicit or encourage, any employees or customers or clients of your former employers to join CIT or to leave your past employers in violation of any contractual, common-law obligation or duty to your past employers; and
(vi) you are not party to any employment agreement or subject to any policy that would require you to give notice to your past employer of your resignation in
Mr. Nelson Chai
April 21, 2010
Page 3 of 4 order for such resignation to become effective (unless you have given or will give such notice, and any period of time required to elapse before such notice becomes effective will have elapsed before you commence your employment with CIT). You may be subject to disciplinary action for any violation of the representations, warranties and agreements set forth in this letter. For purposes of this document, confidential or proprietary materials includes information in any form, including tangible documents and electronic data maintained on a disc, hard drive or otherwise. CIT and you intend that the benefits and payments described in this letter will comply with the requirements of Section 409A of the Internal Revenue Code, and the regulations, guidance and other interpretative authority issued thereunder (collectively, "Section 409A"), and that this letter will be interpreted and construed consistent with that intent. In connection with your employment with CIT, your compensation is subject to applicable federal laws (including FDIC regulations); accordingly, CIT reserves the right, in its sole discretion and without your consent, to cancel, reduce, revoke, rescind, require repayment of, or otherwise eliminate any compensation arrangement offered or promised to you, if CIT deems it necessary or advisable to comply with federal law. This letter and the Agreement set forth the terms of your employment with CIT and supersede any and all prior oral or written communications. Although your job duties, title, compensation and benefits, as well as CIT's policies and procedures may change from time-to-time, the nature of your employment remains "at-will". As a result, either you or CIT may terminate your employment relationship at any time for any reason, with or without cause. In addition, no changes to the terms of your employment, including benefits and compensation, are valid unless set forth in writing from CIT Human Resources or are generally applicable to similarly situated CIT employees. An additional copy of this offer letter is enclosed for your records. To accept this offer of employment, please sign and return this letter to me within 10 calendar days from the date of this letter. Your signature below indicates that you understand and agree to the terms set forth in this letter. If you do not return a signed original of this letter to me within such 10 calendar day period, this offer will become void and expire. Handwritten or other changes to this letter are not valid unless authorized and signed by me. In addition, no one at CIT is authorized to vary the terms of this letter except the General Counsel or me. Nelson, we are delighted at the prospect of your joining our team and look forward to having you on board. If you have any questions regarding this offer of employment, you may contact me at (212) 771-9403. Sincerely, /s/ James J. Duffy
James J. Duffy
Executive Vice President
Human Resources Mr. Nelson Chai
April 21, 2010
Page 4 of 4 Agreed and accepted:
/s/ Nelson Chai 4/21/10
Nelson Chai Date Exhibit 10.32 James J. Duffy Executive Vice President Human Resources April 8, 2010 Ms. Lisa K. Polsky
11 West 42nd Street
New York, NY 10036 Dear Lisa, We are pleased to confirm our offer to you of employment to join CIT Group Inc. ("CIT") as Chief Risk Officer ("CRO") initially reporting to the Chief Executive Officer. This letter summarizes the terms and conditions of our offer of employment and contains important information regarding your employment by CIT. Subject to the approval of your appointment as CRO by CIT's Board of Directors (the "Board"), you will be an executive officer of CIT for purposes of Section 16 of the Securities Exchange Act of 1934. As an executive officer, your compensation and benefits, including annual bonuses and equity awards, would be subject to the approval of the Board. If you accept this offer, your annualized base salary rate will be $500,000, payable bi-weekly. In addition, subject to the award being approved by the Board, you will receive an award of $1,500,000 in the form of Restricted Stock Units (the "RSUs") on the first day of your employment (the "Grant Date"). Your RSUs will be scheduled to vest 50% on the first anniversary of the Grant Date, and the remaining 50% on the third anniversary of the Grant Date. The number of RSUs that you may be awarded will be determined based on the closing price of CIT's common stock trading on the New York Stock Exchange on the Grant Date. Upon vesting, the RSUs will be paid within forty-five days in the form of shares of CIT common stock, less applicable tax and other withholdings. The terms and conditions of your RSUs will be fully described in an Award Agreement sent to you following the Grant Date. You must be actively employed on the Grant Date to receive your RSUs. Consistent with other similarly situated CIT employees, you will be eligible to receive annual and long-term incentive awards based on, among other things, your performance and CIT's results. Incentives awards may be comprised of cash and/or non-cash awards and are typically awarded during the first quarter following the performance year to which they relate (i.e., Q1 2011 for performance year 2010). Any annual and long-term incentives awarded to you in 2011 attributable to 2010 performance will take into account the fact that you had previously received $1,500,000 of RSUs in 2010. You will be eligible for 20 vacation days per year. For 2010, the number of vacation days you will be eligible for will be prorated based on your actual date of hire. In addition, you will be eligible for company paid holidays and personal days per CIT's time off policy.
505 Fifth Avenue – 8th Floor t: 212.771.9403 f: 212.771.9407 New York, NY 10017 [email protected] Ms. Lisa K. Polsky
April 5, 2010
Page 2 of 3 Upon commencement of your employment, you will be eligible for health and welfare benefits and will receive a benefits enrollment package shortly following your date of hire. Enclosed is a summary of CIT's current benefits. To receive health benefits coverage, you must enroll via the online benefits enrollment system within 30 days from the date you begin employment. Health benefits coverage will commence retroactively to your first day of work if you enroll by the deadline. This offer of employment is contingent upon (i) the approval of the Board and the Federal Reserve Bank of New York, (ii) the satisfactory completion of all pre- and post-employment background and other checks, (iii) your satisfactory completion of a drug screen; and (iv) your execution of CIT's Non Competition, Non-Solicitation and Confidentiality Agreement (the "Agreement"), a copy of which Agreement is enclosed for your review. Your official start date will be determined upon completion of pre-employment screening. The enclosed company materials describe certain employment prerequisites and include forms that you must complete and submit to the Human Resources department on your first day of employment. If your employment with CIT terminates at any time for any reason, the compensation outlined in this letter will cease on your last day of employment. By accepting this offer, you represent, warrant and agree that: (i) you have not taken and will not take any confidential or proprietary materials (or copies thereof) from your prior employers;
(ii) you will not use any confidential, proprietary or trade secret information in violation of any contractual or common-law obligation to your former employers;
(iii) you are not subject to any agreement, plan or policy applicable to you that would prevent or restrict you from accepting this offer of employment and engaging in activities competitive with the activities of your former employers;
(iv) other than the agreement(s) restricting your post-employment agreements with any of your prior employers that you disclosed on your CIT Employment Application form, you are not subject to any other agreement, plan or policy purporting to restrict your ability to solicit any employee, customer or prospective customer of any prior employer, or if you did not disclose to CIT any agreements with any of your prior employers restricting your post-employment activities, that you are not subject to any agreement, plan or policy purporting to restrict your ability to solicit any employee, customer or prospective customer of any prior employer;
(v) you have not requested, solicited or encouraged, and will not request, solicit or encourage, any employees or customers or clients of your former employers to join CIT or to leave your past employers in violation of any contractual, common-law obligation or duty to your past employers; and
(vi) you are not party to any employment agreement or subject to any policy that would require you to give notice to your past employer of your resignation in order for such resignation to become effective (unless you have given or will give such notice, and any period of time required to elapse before such notice becomes effective will have elapsed before you commence your employment with CIT). You may be subject to disciplinary action for any violation of the representations, warranties and agreements set forth in this letter. For purposes of this document, confidential or proprietary Ms. Lisa K. Polsky
April 5, 2010
Page 3 of 3 materials includes information in any form, including tangible documents and electronic data maintained on a disc, hard drive or otherwise. CIT and you intend that the benefits and payments described in this letter will comply with the requirements of Section 409A of the Internal Revenue Code, and the regulations, guidance and other interpretative authority issued thereunder (collectively, "Section 409A"), and that this letter will be interpreted and construed consistent with that intent. In connection with your employment with CIT, your compensation is subject to applicable federal laws (including FDIC regulations); accordingly, CIT reserves the right, in its sole discretion and without your consent, to cancel, reduce, revoke, rescind, require repayment of, or otherwise eliminate any compensation arrangement offered or promised to you, if CIT deems it necessary or advisable to comply with federal law. This letter and the Agreement set forth the terms of your employment with CIT and supersede any and all prior oral or written communications. Although your job duties, title, compensation and benefits, as well as CIT's policies and procedures may change from time-to-time, the nature of your employment remains "at-will". As a result, either you or CIT may terminate your employment relationship at any time for any reason, with or without cause. In addition, no changes to the terms of your employment, including benefits and compensation, are valid unless set forth in writing from CIT Human Resources or are generally applicable to similarly situated CIT employees. An additional copy of this offer letter is enclosed for your records. To accept this offer of employment, please sign and return this letter to me within 10 calendar days from the date of this letter. Your signature below indicates that you understand and agree to the terms set forth in this letter. If you do not return a signed original of this letter to me within such 10 calendar day period, this offer will become void and expire. Handwritten or other changes to this letter are not valid unless authorized and signed by me. In addition, no one at CIT is authorized to vary the terms of this letter except the General Counsel or me. Lisa, we are delighted at the prospect of your joining our team and look forward to having you on board. If you have any questions regarding this offer of employment, you may contact me at (212) 771-9403. Sincerely, /s/ James J. Duffy
James J. Duffy
Executive Vice President
Human Resources Agreed and accepted: /s/ Lisa K. Polsky 04/13/2010
Lisa K. Polsky Date Exhibit 10.33
CIT Group Inc.
Long-Term Incentive Plan
Restricted Stock Unit Award Agreement Effective as of the "Date of Award" (as such term is defined in the "Award Summary" that was delivered to the Participant by the Company), this Award Agreement sets forth the grant of Restricted Stock Units ("RSUs") by CIT Group Inc., a Delaware corporation (the "Company"), to the Participant named in the Award Summary, pursuant to the provisions of the Amended and Restated CIT Group Inc. Long-Term Incentive Plan (the "Plan"). This Award Agreement memorializes the terms and conditions as approved by the Compensation Committee of the Board (the "Committee"). All capitalized terms shall have the meanings ascribed to them in the Plan, unless specifically set forth otherwise herein. The parties hereto agree as follows:
(A) Grant of RSUs. The Company hereby grants to the Participant the number of RSUs set forth in the Award Summary, effective as of the Date of Award and subject to the terms and conditions of the Plan and this Award Agreement. Each RSU represents the unsecured right to receive one Share in the future following the vesting of the RSU in accordance with this Award Agreement. The Participant shall not be required to pay any additional consideration for the issuance of the Shares upon settlement of the RSUs.
(B) Vesting and Settlement of RSUs.
(1) Subject to the Participant's continued employment with the Company and/or its Affiliates (the "Company Group") from the Date of Award until the applicable Vesting Date (as defined below) and compliance with, and subject to, the terms and conditions of this Award Agreement, one-third (33 1/3%) of the RSUs shall vest on each of the first, second and third anniversaries of the Date of Award (each anniversary, a "Vesting Date").
(2) Each vested RSU shall be settled through the delivery of one Share within thirty (30) days following the applicable Vesting Date (a "Settlement Date"), provided that any fractional Share shall vest and be settled on the last Vesting Date and Settlement Date, respectively.
(3) The Shares delivered to the Participant on the applicable Settlement Date (or such date determined in accordance with Section (C) or (D)) shall not be subject to transfer restrictions and shall be fully paid, non-assessable and registered in the Participant's name.
(4) If, after the Date of Award and prior to the applicable Vesting Date, dividends with respect to Shares are declared or paid by the Company, the Participant shall be credited with, and entitled to receive, dividend equivalents in an amount, without interest, equal to the cumulative dividends declared or paid on a Share, if any, during such period multiplied by the number of unvested RSUs. Unless otherwise determined by the Committee, dividend equivalents paid in cash shall not be reinvested in Shares and shall remain uninvested. The dividend equivalents credited in respect of vested RSUs shall be paid in cash or Shares, as applicable, on the Settlement Date.
(5) In the sole discretion of the Committee and notwithstanding any other provision of this Award Agreement to the contrary, in lieu of the delivery of Shares, the RSUs and any dividend equivalents payable in Shares, may be settled through a payment in cash equal to the Fair Market Value of the applicable number of Shares, determined on the applicable Vesting Date or, in the case of settlement in accordance with Section (C)(1), (C)(3) or (D), the date of the Participant's "Separation from Service" (within the meaning of the Committee's established methodology for determining "Separation from Service" for purposes of Section 409A (as defined below)) or the date of Disability, as applicable. Settlement under this Section (B)(5) shall be made at the time specified under Sections (B)(2), (B)(4), (C)(1), (C)(2), (C)(3) or (D), as applicable.
(C) Separation from Service.
(1) If, after the Date of Award and prior to an applicable Settlement Date, the Participant incurs a Disability (as defined below) or a Separation from Service from the Company Group due to death, each RSU, to the extent unvested, shall vest immediately and shall settle through the delivery of one Share within thirty (30) days following the Participant's Disability or Separation from Service due to death. The Participant shall also be entitled to receive all credited and unpaid dividend equivalents at the time the RSUs are settled in accordance with this Section (C)(1). "Disability" shall have the same meaning as defined in the Company's applicable long-term disability plan or policy last in effect prior to the first date the Participant suffers from such Disability; provided, however, to the extent a "Disability" event does not also constitute a "Disability" as defined in Section 409A, such Disability event shall not constitute a Disability for purposes of this Section (C)(1).
(2) If, after the Date of Award and prior to an applicable Settlement Date, the Participant incurs a Separation from Service due to the Participant's Retirement (as defined below) or initiated by the Company and not involving circumstances that would otherwise constitute a Non-RIF Termination (as defined below), and conditioned upon the Participant's compliance with the obligations referenced in Section (L)(2) below through the applicable Vesting Dates and Settlement Dates, the RSUs (and any credited and unpaid dividend equivalents), to the extent unvested as of such Separation from Service, shall continue to vest and be settled on the applicable Vesting Date and Settlement Date in accordance with Sections (B)(1) and (B)(2) above, unless such continued vesting and settlement of RSUs (and dividend equivalents) following the Participant's Separation from Service is prohibited or limited by applicable law and/or regulation. "Retirement" is defined as either (i) the Participant's election to retire upon or after attaining his or her "Normal Retirement Age"; or (ii) the Participant's election to retire upon (A) completing at least a 10-year "Period of Benefit Service" and (B) having either (1) attained age 55, or (2) incurred an "Eligible Termination" and, at the time of such "Eligible Termination," having attained age 54. The terms "Normal Retirement Age," "Period of Benefit Service" and "Eligible Termination" shall have the meaning as defined in the CIT Group Inc. Retirement Plan, effective January 1, 2007, as amended from time to time (the "Retirement Plan"). A "Non-RIF Termination" shall have the meaning attributed to it in the Company's Employee Severance Plan, as amended from time to time (the "Employee Severance Plan"). The definitions of Retirement, Normal Retirement Age, Period of Benefit Service, Eligible Termination and Non-RIF Termination are applicable irrespective of whether the Participant is eligible to participate in the Retirement Plan and/or the Employee Severance Plan. (3) Notwithstanding Sections (C)(1), (C)(2) or (D), if the Participant's employment agreement with the Company, as amended on January 18, 2011 and as amended further from time to time (the "Employment Agreement"), is still in effect on the date of the Participant's Separation from Service, then upon a Separation from Service described in Section 5(a), 5(c) or 5(d) of the Employment Agreement the RSUs (and any credited and unpaid dividend equivalents), to the extent unvested, shall vest upon such Separation from Service and be settled within thirty (30) days following such Separation from Service, unless such accelerated vesting and settlement of RSUs (and dividend equivalents) following the Participant's Separation from Service is prohibited or limited by applicable law and/or regulation.
(4) If, prior to an applicable Vesting Date, the Participant's employment with the Company Group terminates for any reason other than as set forth in Section (C)(1), (C)(2), (C)(3) or (D), the unvested RSUs shall be cancelled immediately and the Participant shall immediately forfeit any rights to, and shall not be entitled to receive any payments with respect to, the RSUs including, without limitation, dividend equivalents pursuant to Section (B)(4).
(D) Change of Control. Notwithstanding any provision contained in the Plan or this Award Agreement to the contrary and subject to Section (C)(3) above, if, prior to an applicable Settlement Date, a Change of Control occurs and within two years of such Change of Control the Participant incurs a Separation from Service (i) initiated by the Company and not involving circumstances that would otherwise constitute a Non-RIF Termination or (ii) initiated by the Participant for "Good Reason" (as defined below), the RSUs (and any credited and unpaid dividend equivalents), to the extent unvested, shall vest upon such Separation from Service and be settled within thirty (30) days following such Separation from Service, unless such accelerated vesting and settlement of RSUs (and dividend equivalents) following the Participant's Separation from Service is prohibited or limited by applicable law and/or regulation. "Good Reason" shall mean, without the Participant's consent, a material diminution of the Participant's (x) base salary and incentive compensation opportunity (except in the event of a compensation reduction applicable to the Participant and other employees of comparable rank and/or status) or (y) duties and responsibilities (except a temporary reduction while the Participant is physically or mentally incapacitated or a modification in the duties and/or responsibilities of the Participant and other employees of comparable rank and/or status following a Control of Control), provided, that a Separation from Service for Good Reason shall not occur unless (A) the Participant has provided the Company written notice specifying in detail the alleged condition of Good Reason within thirty (30) days of the occurrence of such condition; (B) the Company has failed to cure such alleged condition within ninety (90) days following the Company's receipt of such written notice; and (C) if the Committee (or its designee) has determined that the Company has failed to cure such alleged condition, the Participant initiates a Separation from Service within five (5) days following the end of such 90-day cure period.
(E) Transferability. The RSUs are not transferable other than by last will and testament, by the laws of descent and distribution pursuant to a domestic relations order, or as otherwise permitted under Section 12 of the Plan.
(F) Incorporation of Plan. The Plan provides a complete description of the terms and conditions governing all Awards granted thereunder and is incorporated into this Award Agreement by reference unless specifically stated herein. This Award Agreement and the rights of the Participant hereunder are subject to the terms and conditions of the Plan, as amended from time to time, and to such rules and regulations as the Committee may adopt under the Plan. If there is any inconsistency between the terms of this Award Agreement and the terms of the Plan, the Plan's terms shall supersede and replace the conflicting terms of this Award Agreement.
(G) No Entitlements.
(1) The Plan or the Award Agreement does not confer on the Participant any right or entitlement to receive compensation, including, without limitation, any base salary or incentive compensation, in any specific amount for any future fiscal year (including, without limitation, any grants of future Awards under the Plan) and do not impact in any
2 way the Company Group's determination of the amount, if any, of the Participant's base salary or incentive compensation. This Award of RSUs made under this Award Agreement is completely independent of any other Awards or grants and is made at the sole discretion of the Company. The RSUs do not constitute salary, wages, regular compensation, recurrent compensation, pensionable compensation or contractual compensation for the year of grant or any prior or later years and shall not be included in, nor have any effect on or be deemed earned in any respect, in connection with the determination of employment-related rights or benefits under law or any employee benefit plan or similar arrangement provided by the Company Group (including, without limitation, severance, termination of employment and pension benefits), unless otherwise specifically provided for under the terms of such plan or arrangement or by the Company Group. The benefits provided pursuant to the RSUs are in no way secured, guaranteed or warranted by the Company Group.
(2) The RSUs are awarded to the Participant by virtue of the Participant's employment with, and services performed for, the Company Group. The Plan or the Award Agreement does not constitute an employment agreement. Nothing in the Plan or the Award Agreement shall modify the terms of the Participant's employment, including, without limitation, the Participant's status as an "at will" employee of the Company Group, if applicable.
(3) Subject to any applicable employment agreement, the Company reserves the right to change the terms and conditions of the Participant's employment, including the division, subsidiary or department in which the Participant is employed. None of the Plan or the Award Agreement, the grant of RSUs, nor any action taken or omitted to be taken under the Plan or the Award Agreement shall be deemed to create or confer on the Participant any right to be retained in the employ of the Company Group, or to interfere with or to limit in any way the right of the Company Group to terminate the Participant's employment at any time. Moreover, the Separation from Service provisions set forth in Section (C) or (D), as applicable, only apply to the treatment of the RSUs in the specified circumstances and shall not otherwise affect the Participant's employment relationship. By accepting this Award Agreement, the Participant waives any and all rights to compensation or damages in consequence of the termination of the Participant's office or employment for any reason whatsoever to the extent such rights arise or may arise from the Participant's ceasing to have rights under, or be entitled to receive payment in respect of, any unvested RSUs that are cancelled or forfeited as a result of such termination, or from the loss or diminution in value of such rights or entitlements, including by reason of the operation of the terms of the Plan, this Award Agreement or the provisions of any statute or law to taxation. This waiver applies whether or not such termination amounts to a wrongful discharge or unfair dismissal.
(H) No Rights as a Stockholder. The Participant will have no rights as a stockholder with respect to Shares covered by this Award Agreement (including voting rights) until the date the Participant or his nominee becomes the holder of record of such Shares on an applicable Settlement Date or as provided in Section (C) or (D), if applicable.
(I) Securities Representation. The grant of the RSUs and issuance of Shares upon vesting of the RSUs shall be subject to, and in compliance with, all applicable requirements of federal, state or foreign securities law. No Shares may be issued hereunder if the issuance of such Shares would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Shares may then be listed. As a condition to the settlement of the RSUs, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation.
The Shares are being issued to the Participant and this Award Agreement is being made by the Company in reliance upon the following express representations and warranties of the Participant. The Participant acknowledges, represents and warrants that:
(1) He or she has been advised that he or she may be an "affiliate" within the meaning of Rule 144 under the Securities Act of 1933, as amended (the "Act") and in this connection the Company is relying in part on his or her representations set forth in this section (I)(1); and
(2) If he or she is deemed an affiliate within the meaning of Rule 144 of the Act, the Shares must be held indefinitely unless an exemption from any applicable resale restrictions is available or the Company files an additional registration statement (or a "re-offer prospectus") with regard to such Shares and the Company is under no obligation to register the Shares (or to file a "re-offer prospectus").
(3) If he or she is deemed an affiliate within the meaning of Rule 144 of the Act, he or she understands that the exemption from registration under Rule 144 will not be available unless (i) a public trading market then exists for the Shares of the Company, (ii) adequate information concerning the Company is then available to the public, and (iii) other terms and conditions of Rule 144 or any exemption therefrom are complied with; and that any sale of the Shares may be made only in limited amounts in accordance with such terms and conditions.
(J) Notices. Any notice or communication given hereunder shall be in writing and shall be deemed to have been duly given when delivered in person or mailed by certified mail, postage and fees prepaid, or internationally recognized express mail service, as follows: 3 If to the Company, to:
CIT Group Inc.
1 CIT Drive
Livingston, New Jersey 07039
Attention: Senior Vice President, Compensation and Benefits
If to the Participant, to the address on file with the Company Group.
(K) Transfer of Personal Data. In order to facilitate the administration of this Award, it will be necessary for the Company Group to collect, hold, and process certain personal information about the Participant. As a condition of accepting this Award, the Participant authorizes, agrees and unambiguously consents to the Company Group collecting, using, disclosing, holding and processing personal data and transferring such data to third parties (collectively, the "Data Recipients") for the primary purpose of the Participant's participation in, and the general administration of, the Plan and to the transmission by the Company Group of any personal data information related to the RSUs awarded under this Award Agreement, as required in connection with the Participant's participation in the Plan (including, without limitation, the administration of the Plan) out of the Participant's home country and including to countries with less data protection than the data protection provided by the Participant's home country. This authorization and consent is freely given by the Participant. The Participant acknowledges that he/she has been informed that upon request, the Company will provide the name or title and contact information for an officer or employee of the Company Group who is able to answer questions about the collection, use and disclosure of personal data information.
(1) The Data Recipients will treat the Participant's personal data as private and confidential and will not disclose such data for purposes other than the management and administration of this Award and will take reasonable measures to keep the Participant's personal data private, confidential, accurate and current.
(2) Where the transfer is to a destination outside the country to which the Participant is employed, the Company shall take reasonable steps to ensure that the Participant's personal data continues to be adequately protected and securely held. By accepting this Award, the Participant acknowledges that personal information about the Participant may be transferred to a country that does not offer the same level of data protection as the country in which the Participant is employed.
(L) Cancellation; Related Matters.
(1) In the event of a material restatement of the Company's financial statements, the Committee (or its designee) shall review those facts and circumstances underlying the restatement that the Committee (or its designee) determines in its sole discretion as relevant (which may include, without limitation, the Participant's status and responsibility within the organization, any potential wrongdoing by the Participant and whether the restatement was the result of negligence, intentional or gross misconduct or other conduct detrimental to the Company insofar as it caused material financial or reputational harm to the Company or its business activities), and the Committee (or its designee), in its sole discretion, may direct the Company to cancel any then unvested RSUs, and the Participant shall forfeit any rights to such unvested and cancelled RSUs.
(2) In the event that the Committee (or its designee), in its sole discretion, determines at any time that the Participant has breached (i) any provisions relating to non-competition, non-solicitation, confidential information or inventions or proprietary property in any employment agreement or other agreement in effect between the Participant and the Company or an Affiliate or (ii) the provisions of Exhibit A during the Participant's employment or the one year period following the Participant's Separation from Service from the Company Group, then the Committee (or its designee), in its sole discretion, may direct the Company to cancel any then unvested RSUs, and the Participant shall forfeit any rights to such unvested and cancelled RSUs.
(3) In the event the Committee (or its designee), in its sole discretion, determines at any time that the Participant has engaged in "Detrimental Conduct" (as defined below) during the Participant's employment, including if such determination is made following the Participant's termination of employment, then the Committee (or its designee), in its sole discretion, may direct the Company to cancel any then unvested RSUs, and the Participant shall forfeit any rights to such unvested and cancelled RSUs. "Detrimental Conduct" shall mean: (i) any conduct that would constitute "cause" under the Participant's employment agreement or similar agreement with the Company or its Affiliates, if any, or if the Participant's employment has terminated and the Committee discovers thereafter that the Participant's employment could have been terminated for "cause" or as a Non-RIF Termination; (ii) the commission of a misdemeanor involving moral turpitude or a felony; (iii) fraud, gross negligence, malfeasance or any act or failure to act that has caused or may reasonably be expected to cause material injury to the Company Group; or (iv) a violation of any federal or state securities or banking laws, any rules or regulations issued pursuant to such laws, or the rules and regulations of any securities or exchange or association of which the Company or one of its Affiliates is a member.
(4) Notwithstanding anything contained in the Plan or this Award Agreement to the contrary, to the extent that the Company is required by law to include any additional recoupment, recovery or forfeiture provisions to outstanding 4 Awards, then such additional provisions shall also apply to this Award Agreement as if they had been included as of the Date of Award and in the manner determined by the Committee in its sole discretion.
(5) The remedies provided for in this Award Agreement shall be cumulative and not exclusive, and the Participant agrees and acknowledges that the enforcement by the Company of its rights hereunder shall not in any manner impair, restrict or limit the right of the Company to seek injunctive and other equitable or legal relief under applicable law or the terms of any other agreement between the Company and the Participant.
(M) Miscellaneous.
(1) It is expressly understood that the Committee is authorized to administer, construe, and make all determinations necessary or appropriate to the administration of the Plan and this Award Agreement, all of which shall be binding upon the Participant.
(2) The Board may at any time, or from time to time, terminate, amend, modify or suspend the Plan, and the Board or the Committee may amend or modify this Award Agreement at any time; provided, however, that, except as provided herein, no termination, amendment, modification or suspension shall materially and adversely alter or impair the rights of the Participant under this Award Agreement, without the Participant's written consent.
(3) This Award Agreement is intended to comply with, or be exempt from, Section 409A of the Code and the regulations and guidance promulgated thereunder ("Section 409A"), and accordingly, to the maximum extent permitted, this Award Agreement shall be interpreted in a manner intended to be in compliance therewith. In no event whatsoever shall the Company Group be liable for any additional tax, interest or penalty that may be imposed on the Participant by Section 409A or any damages for failing to comply with Section 409A. If any provision of the Plan or the Award Agreement would, in the sole discretion of the Committee, result or likely result in the imposition on the Participant, a beneficiary or any other person of additional taxes or a penalty tax under Section 409A, the Committee may modify the terms of the Plan or the Award Agreement, without the consent of the Participant, beneficiary or such other person, in the manner that the Committee, in its sole discretion, may determine to be necessary or advisable to avoid the imposition of such penalty tax. Notwithstanding anything to the contrary in the Plan or the Award Agreement, to the extent that the Participant is a "Specified Employee" (within the meaning of the Committee's established methodology for determining "Specified Employees" for purposes of Section 409A), payment or distribution of any amounts with respect to the RSUs that are subject to Section 409A will be made as soon as practicable following the first business day of the seventh month following the Participant's Separation from Service from the Company Group or, if earlier, the date of the Participant's death.
(4) Delivery of the Shares underlying the RSUs or payment in cash (if permitted pursuant to Section (B)(5)) upon settlement is subject to the Participant satisfying all applicable federal, state, local and foreign taxes and other statutory obligations (including, without limitation, the Participant's FICA obligation). The Company shall have the power and the right to (i) deduct or withhold from all amounts payable to the Participant pursuant to the RSUs or otherwise, or (ii) require the Participant to remit to the Company, an amount sufficient to satisfy any applicable taxes required by law. The Company may permit or require the Participant to satisfy, in whole or in part, the tax obligations by withholding Shares that would otherwise be received upon settlement of the RSUs.
(5) The Company may at any time place legends referencing any applicable federal, state or foreign securities law restrictions on all certificates representing Shares issued pursuant to this Award Agreement. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing Shares acquired pursuant to this Award Agreement in the possession of the Participant.
(6) This Award Agreement shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required, or the Committee determines are advisable. The Participant agrees to take all steps the Company determines are necessary to comply with all applicable provisions of federal, state and foreign securities law in exercising his or her rights under this Award Agreement.
(7) Nothing in the Plan or this Agreement should be construed as providing the Participant with financial, tax, legal or other advice with respect to the RSUs. The Company recommends that the Participant consult with his or her financial, tax, legal and other advisors to provide advice in connection with the RSUs.
(8) All obligations of the Company under the Plan and this Award Agreement, with respect to the Awards, shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company.
(9) To the extent not preempted by federal law, this Award Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. 5 (10) This Award Agreement may be executed in one or more counterparts, all of which taken together shall constitute one contract.
(11) The Participant agrees that the Company may, to the extent permitted by applicable law and as provided for in Section 17(d) of the Plan, retain for itself securities or funds otherwise payable to the Participant pursuant to this Award Agreement to satisfy any obligation or debt that the Participant owes the Company or its affiliates; provided that the Company may not retain such funds or securities and set off such obligations or liabilities until such time as they would otherwise be distributable to the Participant, and to the extent that Section 409A is applicable, such offset shall not exceed the maximum offset then permitted under Section 409A.
(12) The Participant acknowledges that if he or she moves to another country during the term of this Award Agreement, additional terms and conditions may apply and as provided for in Section 17(f) of the Plan and the Company reserves the right to impose other requirements to the extent the Company determines it is necessary or advisable in order to comply with local law or facilitate the administration of the Award Agreement. The Participant agrees to sign any additional agreements or undertaking that may be necessary to accomplish the foregoing.
(13) The Participant acknowledges that his or her participation in the Plan as a result of this Award Agreement is further good and valuable consideration for the Participant's obligations under any non-competition, non-solicitation, confidentiality or similar agreement between the Participant and the Company.
(14) Neither this Award Agreement or the Shares that may be awarded hereunder represent any right to the payment of earned wages, and the rights of the Participant with respect to any Shares remains fully contingent and subject to the vesting and other terms and conditions of this Award Agreement.
(15) Any cash payment made pursuant to Section (B)(4) or (B)(5) of this Award Agreement shall be calculated, where necessary, by reference to the prevailing U.S. dollar exchange rate on the proposed payment date (as determined by the Committee in its sole discretion).
(N) Acceptance of Award. By accepting this Award of RSUs, the Participant is agreeing to all of the terms contained in this Award Agreement, including the non-solicitation provision attached hereto as Exhibit A. The Participant may accept this Award by indicating acceptance by e-mail or such other electronic means as the Company may designate in writing or by signing this Award Agreement if the Company does not require acceptance by email or such other electronic means. If the Participant desires to refuse the Award, the Participant must notify the Company in writing. Such notification should be sent to CIT Group Inc., Attention: Senior Vice President, Compensation and Benefits, 1 CIT Drive, Livingston, New Jersey 07039, no later than thirty (30) days after the Date of Award. If the Participant declines the Award, it will be cancelled as of the Date of Award. IN WITNESS WHEREOF, this Award Agreement (including any exhibits attached hereto) has been executed by the Company by one of its duly authorized officers as of the Date of Award. CIT Group Inc.
Lisa D. Zonino Executive Vice President Human Resources ACCEPTED AND AGREED:
Participant Name Date
6 EXHIBIT A
Non-Solicitation Provision All capitalized terms shall have the meanings ascribed to them in the Award Agreement, unless specifically set forth otherwise herein. 1. Non-Solicitation of Customers and Clients. During employment with the Company Group and for one year thereafter, the Participant shall not, directly or indirectly, (i) solicit for any Competing Business any client of the Company Group or any specifically identified prospective client of the Company Group, or (ii) cause a client or any specifically identified prospective client of the Company Group to terminate or diminish its business with the Company Group. These restrictions shall apply only to clients of the Company Group or specifically identified prospective clients of the Company Group which the Participant solicited, with which the Participant maintained a business relationship for the Company Group, or about which the Participant obtained Confidential Information on behalf of the Company Group, in the last twenty-four (24) months of employment with the Company Group. 2. Non-Solicitation of Employees. During employment with the Company Group and for one year thereafter, the Participant shall not, directly or indirectly, (i) solicit, recruit, induce or otherwise encourage any Company Group employees to end their employment with the Company Group or to engage in any Competing Business; or (ii) hire or retain as an independent consultant/contractor, on behalf of any Competing Business, any person who was employed with the Company Group within the preceding six months. 3. Definitions. (a) "Competing Business" means any person or entity that competes with the Company Group in the sale, marketing, production, distribution, research or development of Competing Products in the same markets. (b) "Competing Products" means any product or service in existence or under development that competes with any product or service of the Company Group about which the Participant obtained Confidential Information or for which the Participant provided advisory services or had sales, origination, marketing, production, distribution, research or development responsibilities in the last twenty-four (24) months of employment with the Company Group. (c) "Confidential Information" means information in print, audio, visual, digital, electronically-stored or any other form, which the Company Group has acquired and keeps confidential or that is not otherwise known publicly or to the Company Group's competitors, which includes but is not limited to the Company Group's trade secrets, business or marketing plans and strategies, prices and rates, financial data, personnel records, client lists and contact information, client accounts, profit margins, analyses, research and developments, know how, methodologies, designs, inventions, innovations, processes, security and proprietary technology. 7 Exhibit 10.34
CIT Group Inc.
Long-Term Incentive Plan
Restricted Stock Unit Award Agreement Effective as of the "Date of Award" (as such term is defined in the "Award Summary" that was delivered to the Participant by the Company), this Award Agreement sets forth the grant of Restricted Stock Units ("RSUs") by CIT Group Inc., a Delaware corporation (the "Company"), to the Participant named in the Award Summary, pursuant to the provisions of the Amended and Restated CIT Group Inc. Long-Term Incentive Plan (the "Plan"). This Award Agreement memorializes the terms and conditions as approved by the Compensation Committee of the Board (the "Committee"). All capitalized terms shall have the meanings ascribed to them in the Plan, unless specifically set forth otherwise herein. The parties hereto agree as follows: (A) Grant of RSUs. The Company hereby grants to the Participant the number of RSUs set forth in the Award Summary, effective as of the Date of Award and subject to the terms and conditions of the Plan and this Award Agreement. Each RSU represents the unsecured right to receive one Share in the future following the vesting of the RSU in accordance with this Award Agreement. The Participant shall not be required to pay any additional consideration for the issuance of the Shares upon settlement of the RSUs.
(B) Vesting and Settlement of RSUs.
(1) Subject to the Participant's continued employment with the Company and/or its Affiliates (the "Company Group") from the Date of Award until the applicable Vesting Date (as defined below) and compliance with, and subject to, the terms and conditions of this Award Agreement, one-third (33 1/3%) of the RSUs shall vest on each of the first, second and third anniversaries of the Date of Award (each anniversary, a "Vesting Date").
(2) Each vested RSU shall be settled through the delivery of one Share within thirty (30) days following the applicable Vesting Date (a "Settlement Date"), provided that any fractional Share shall vest and be settled on the last Vesting Date and Settlement Date, respectively.
(3) The Shares delivered to the Participant on the applicable Settlement Date (or such date determined in accordance with Section (C) or (D)) shall not be subject to transfer restrictions and shall be fully paid, non-assessable and registered in the Participant's name.
(4) If, after the Date of Award and prior to the applicable Vesting Date, dividends with respect to Shares are declared or paid by the Company, the Participant shall be credited with, and entitled to receive, dividend equivalents in an amount, without interest, equal to the cumulative dividends declared or paid on a Share, if any, during such period multiplied by the number of unvested RSUs. Unless otherwise determined by the Committee, dividend equivalents paid in cash shall not be reinvested in Shares and shall remain uninvested. The dividend equivalents credited in respect of vested RSUs shall be paid in cash or Shares, as applicable, on the Settlement Date.
(5) Except for Participants who are tax residents of Canada, in the sole discretion of the Committee and notwithstanding any other provision of this Award Agreement to the contrary, in lieu of the delivery of Shares, the RSUs and any dividend equivalents payable in Shares, may be settled through a payment in cash equal to the Fair Market Value of the applicable number of Shares, determined on the applicable Vesting Date or, in the case of settlement in accordance with Section (C)(1) or (D), the date of the Participant's "Separation from Service" (within the meaning of the Committee's established methodology for determining "Separation from Service" for purposes of Section 409A (as defined below)) or the date of Disability, as applicable. Settlement under this Section (B)(5) shall be made at the time specified under Sections (B)(2), (B)(4), (C)(1), (C)(2) or (D), as applicable.
(C) Separation from Service.
(1) If, after the Date of Award and prior to an applicable Settlement Date, the Participant incurs a Disability (as defined below) or a Separation from Service from the Company Group due to death, each RSU, to the extent unvested, shall vest immediately and shall settle through the delivery of one Share within thirty (30) days following the Participant's Disability or Separation from Service due to death. The Participant shall also be entitled to receive all credited and unpaid dividend equivalents at the time the RSUs are settled in accordance with this Section (C)(1). "Disability" shall have the same meaning as defined in the Company's applicable long-term disability plan or policy last in effect prior to the first date the Participant suffers from such Disability; provided, however, for a Participant that is a US taxpayer at any time during the period the RSUs vest and become settled hereunder and to the extent a "Disability" event does not also constitute a "Disability" as defined in Section 409A, such Disability event shall not constitute a Disability for purposes of this Section (C)(1).
(2) If, after the Date of Award and prior to an applicable Settlement Date, the Participant incurs a Separation from Service due to the Participant's Retirement (as defined below) or initiated by the Company and not involving circumstances that would otherwise constitute a Non-RIF Termination (as defined below), and conditioned upon the Participant's compliance with the obligations referenced in Section (L)(2) below through the applicable Vesting Dates and Settlement Dates, the RSUs (and any credited and unpaid dividend equivalents), to the extent unvested as of such Separation from Service, shall continue to vest and be settled on the applicable Vesting Date and Settlement Date in accordance with Sections (B)(1) and (B)(2) above, unless such continued vesting and settlement of RSUs (and dividend equivalents) following the Participant's Separation from Service is prohibited or limited by applicable law and/or regulation. "Retirement" is defined as either (i) the Participant's election to retire upon or after attaining his or her "Normal Retirement Age"; or (ii) the Participant's election to retire upon (A) completing at least a 10-year "Period of Benefit Service" and (B) having either (1) attained age 55, or (2) incurred an "Eligible Termination" and, at the time of such "Eligible Termination," having attained age 54. The terms "Normal Retirement Age," "Period of Benefit Service" and "Eligible Termination" shall have the meaning as defined in the CIT Group Inc. Retirement Plan, effective January 1, 2007, as amended from time to time (the "Retirement Plan"). A "Non-RIF Termination" shall have the meaning attributed to it in the Company's Employee Severance Plan, as amended from time to time (the "Employee Severance Plan"). The definitions of Retirement, Normal Retirement Age, Period of Benefit Service, Eligible Termination and Non-RIF Termination are applicable irrespective of whether the Participant is eligible to participate in the Retirement Plan and/or the Employee Severance Plan.
(3) If, prior to an applicable Vesting Date, the Participant's employment with the Company Group terminates for any reason other than as set forth in Section (C)(1), (C)(2) or (D), the unvested RSUs shall be cancelled immediately and the Participant shall immediately forfeit any rights to, and shall not be entitled to receive any payments with respect to, the RSUs including, without limitation, dividend equivalents pursuant to Section (B)(4).
(D) Change of Control. Notwithstanding any provision contained in the Plan or this Award Agreement to the contrary, if, prior to an applicable Settlement Date, a Change of Control occurs and within two years of such Change of Control the Participant incurs a Separation from Service (i) initiated by the Company and not involving circumstances that would otherwise constitute a Non-RIF Termination or (ii) initiated by the Participant for "Good Reason" (as defined below), the RSUs (and any credited and unpaid dividend equivalents), to the extent unvested, shall vest upon such Separation from Service and be settled within thirty (30) days following such Separation from Service, unless such accelerated vesting and settlement of RSUs (and dividend equivalents) following the Participant's Separation from Service is prohibited or limited by applicable law and/or regulation. "Good Reason" shall mean, without the Participant's consent, a material diminution of the Participant's (x) base salary and incentive compensation opportunity (except in the event of a compensation reduction applicable to the Participant and other employees of comparable rank and/or status) or (y) duties and responsibilities (except a temporary reduction while the Participant is physically or mentally incapacitated or a modification in the duties and/or responsibilities of the Participant and other employees of comparable rank and/or status following a Control of Control), provided, that a Separation from Service for Good Reason shall not occur unless (A) the Participant has provided the Company written notice specifying in detail the alleged condition of Good Reason within thirty (30) days of the occurrence of such condition; (B) the Company has failed to cure such alleged condition within ninety (90) days following the Company's receipt of such written notice; and (C) if the Committee (or its designee) has determined that the Company has failed to cure such alleged condition, the Participant initiates a Separation from Service within five (5) days following the end of such 90-day cure period.
(E) Transferability. The RSUs are not transferable other than by last will and testament, by the laws of descent and distribution pursuant to a domestic relations order, or as otherwise permitted under Section 12 of the Plan.
(F) Incorporation of Plan. The Plan provides a complete description of the terms and conditions governing all Awards granted thereunder and is incorporated into this Award Agreement by reference unless specifically stated herein. This Award Agreement and the rights of the Participant hereunder are subject to the terms and conditions of the Plan, as amended from time to time, and to such rules and regulations as the Committee may adopt under the Plan. If there is any inconsistency between the terms of this Award Agreement and the terms of the Plan, the Plan's terms shall supersede and replace the conflicting terms of this Award Agreement.
(G) No Entitlements.
(1) The Plan or the Award Agreement does not confer on the Participant any right or entitlement to receive compensation, including, without limitation, any base salary or incentive compensation, in any specific amount for any future fiscal year (including, without limitation, any grants of future Awards under the Plan) and do not impact in any way the Company Group's determination of the amount, if any, of the Participant's base salary or incentive compensation. This Award of RSUs made under this Award Agreement is completely independent of any other Awards or grants and is made at the sole discretion of the Company. The RSUs do not constitute salary, wages, regular compensation, recurrent compensation, pensionable compensation or contractual compensation for the year of grant or any prior or later years and shall not be included in, nor have any effect on or be deemed earned in any respect, in connection with the determination of employment-related rights or benefits under law or any employee benefit plan or similar arrangement provided by the Company Group (including, without limitation, severance, termination of employment and pension benefits), unless otherwise specifically provided for under the terms of such plan or arrangement or by the Company Group. The benefits provided pursuant to the RSUs are in no way secured, guaranteed or warranted by the Company Group. 2 (2) The RSUs are awarded to the Participant by virtue of the Participant's employment with, and services performed for, the Company Group. The Plan or the Award Agreement does not constitute an employment agreement. Nothing in the Plan or the Award Agreement shall modify the terms of the Participant's employment, including, without limitation, the Participant's status as an "at will" employee of the Company Group, if applicable.
(3) Subject to any applicable employment agreement, the Company reserves the right to change the terms and conditions of the Participant's employment, including the division, subsidiary or department in which the Participant is employed. None of the Plan or the Award Agreement, the grant of RSUs, nor any action taken or omitted to be taken under the Plan or the Award Agreement shall be deemed to create or confer on the Participant any right to be retained in the employ of the Company Group, or to interfere with or to limit in any way the right of the Company Group to terminate the Participant's employment at any time. Moreover, the Separation from Service provisions set forth in Section (C) or (D), as applicable, only apply to the treatment of the RSUs in the specified circumstances and shall not otherwise affect the Participant's employment relationship. By accepting this Award Agreement, the Participant waives any and all rights to compensation or damages in consequence of the termination of the Participant's office or employment for any reason whatsoever to the extent such rights arise or may arise from the Participant's ceasing to have rights under, or be entitled to receive payment in respect of, any unvested RSUs that are cancelled or forfeited as a result of such termination, or from the loss or diminution in value of such rights or entitlements, including by reason of the operation of the terms of the Plan, this Award Agreement or the provisions of any statute or law to taxation. This waiver applies whether or not such termination amounts to a wrongful discharge or unfair dismissal.
(H) No Rights as a Stockholder. The Participant will have no rights as a stockholder with respect to Shares covered by this Award Agreement (including voting rights) until the date the Participant or his nominee becomes the holder of record of such Shares on an applicable Settlement Date or as provided in Section (C) or (D), if applicable.
(I) Securities Representation. The grant of the RSUs and issuance of Shares upon vesting of the RSUs shall be subject to, and in compliance with, all applicable requirements of federal, state or foreign securities law. No Shares may be issued hereunder if the issuance of such Shares would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Shares may then be listed. As a condition to the settlement of the RSUs, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation.
The Shares are being issued to the Participant and this Award Agreement is being made by the Company in reliance upon the following express representations and warranties of the Participant. The Participant acknowledges, represents and warrants that:
(1) He or she has been advised that he or she may be an "affiliate" within the meaning of Rule 144 under the Securities Act of 1933, as amended (the "Act") and in this connection the Company is relying in part on his or her representations set forth in this section (I)(1); and
(2) If he or she is deemed an affiliate within the meaning of Rule 144 of the Act, the Shares must be held indefinitely unless an exemption from any applicable resale restrictions is available or the Company files an additional registration statement (or a "re-offer prospectus") with regard to such Shares and the Company is under no obligation to register the Shares (or to file a "re-offer prospectus").
(3) If he or she is deemed an affiliate within the meaning of Rule 144 of the Act, he or she understands that the exemption from registration under Rule 144 will not be available unless (i) a public trading market then exists for the Shares of the Company, (ii) adequate information concerning the Company is then available to the public, and (iii) other terms and conditions of Rule 144 or any exemption therefrom are complied with; and that any sale of the Shares may be made only in limited amounts in accordance with such terms and conditions.
(J) Notices. Any notice or communication given hereunder shall be in writing and shall be deemed to have been duly given when delivered in person or mailed by certified mail, postage and fees prepaid, or internationally recognized express mail service, as follows:
If to the Company, to:
CIT Group Inc.
1 CIT Drive
Livingston, New Jersey 07039
Attention: Senior Vice President, Compensation and Benefits
If to the Participant, to the address on file with the Company Group.
(K) Transfer of Personal Data. In order to facilitate the administration of this Award, it will be necessary for the Company Group to collect, hold, and process certain personal information about the Participant. As a condition of accepting this Award, the Participant authorizes, agrees and unambiguously consents to the Company Group collecting, using, disclosing, holding and 3 processing personal data and transferring such data to third parties (collectively, the "Data Recipients") for the primary purpose of the Participant's participation in, and the general administration of, the Plan and to the transmission by the Company Group of any personal data information related to the RSUs awarded under this Award Agreement, as required in connection with the Participant's participation in the Plan (including, without limitation, the administration of the Plan) out of the Participant's home country and including to countries with less data protection than the data protection provided by the Participant's home country. This authorization and consent is freely given by the Participant. The Participant acknowledges that he/she has been informed that upon request, the Company will provide the name or title and contact information for an officer or employee of the Company Group who is able to answer questions about the collection, use and disclosure of personal data information.
(1) The Data Recipients will treat the Participant's personal data as private and confidential and will not disclose such data for purposes other than the management and administration of this Award and will take reasonable measures to keep the Participant's personal data private, confidential, accurate and current.
(2) Where the transfer is to a destination outside the country to which the Participant is employed, or outside the European Economic Area for Participants employed by the Company Group in the United Kingdom or Ireland, the Company shall take reasonable steps to ensure that the Participant's personal data continues to be adequately protected and securely held. By accepting this Award, the Participant acknowledges that personal information about the Participant may be transferred to a country that does not offer the same level of data protection as the country in which the Participant is employed.
(L) Cancellation; Related Matters.
(1) In the event of a material restatement of the Company's financial statements, the Committee (or its designee) shall review those facts and circumstances underlying the restatement that the Committee (or its designee) determines in its sole discretion as relevant (which may include, without limitation, the Participant's status and responsibility within the organization, any potential wrongdoing by the Participant and whether the restatement was the result of negligence, intentional or gross misconduct or other conduct detrimental to the Company insofar as it caused material financial or reputational harm to the Company or its business activities), and the Committee (or its designee), in its sole discretion, may direct the Company to cancel any then unvested RSUs, and the Participant shall forfeit any rights to such unvested and cancelled RSUs.
(2) In the event that the Committee (or its designee), in its sole discretion, determines at any time that the Participant has breached (i) any provisions relating to non-competition, non-solicitation, confidential information or inventions or proprietary property in any employment agreement or other agreement in effect between the Participant and the Company or an Affiliate or (ii) the provisions of Exhibit A during the Participant's employment or the one year period following the Participant's Separation from Service from the Company Group, then the Committee (or its designee), in its sole discretion, may direct the Company to cancel any then unvested RSUs, and the Participant shall forfeit any rights to such unvested and cancelled RSUs.
(3) In the event the Committee (or its designee), in its sole discretion, determines at any time that the Participant has engaged in "Detrimental Conduct" (as defined below) during the Participant's employment, including if such determination is made following the Participant's termination of employment, then the Committee (or its designee), in its sole discretion, may direct the Company to cancel any then unvested RSUs, and the Participant shall forfeit any rights to such unvested and cancelled RSUs. "Detrimental Conduct" shall mean: (i) any conduct that would constitute "cause" under the Participant's employment agreement or similar agreement with the Company or its Affiliates, if any, or if the Participant's employment has terminated and the Committee discovers thereafter that the Participant's employment could have been terminated for "cause" or as a Non-RIF Termination; (ii) the commission of a misdemeanor involving moral turpitude or a felony; (iii) fraud, gross negligence, malfeasance or any act or failure to act that has caused or may reasonably be expected to cause material injury to the Company Group; or (iv) a violation of any federal or state securities or banking laws, any rules or regulations issued pursuant to such laws, or the rules and regulations of any securities or exchange or association of which the Company or one of its Affiliates is a member.
(4) Notwithstanding anything contained in the Plan or this Award Agreement to the contrary, to the extent that the Company is required by law to include any additional recoupment, recovery or forfeiture provisions to outstanding Awards, then such additional provisions shall also apply to this Award Agreement as if they had been included as of the Date of Award and in the manner determined by the Committee in its sole discretion.
(5) The remedies provided for in this Award Agreement shall be cumulative and not exclusive, and the Participant agrees and acknowledges that the enforcement by the Company of its rights hereunder shall not in any manner impair, restrict or limit the right of the Company to seek injunctive and other equitable or legal relief under applicable law or the terms of any other agreement between the Company and the Participant.
(M) Miscellaneous. 4 (1) It is expressly understood that the Committee is authorized to administer, construe, and make all determinations necessary or appropriate to the administration of the Plan and this Award Agreement, all of which shall be binding upon the Participant.
(2) The Board may at any time, or from time to time, terminate, amend, modify or suspend the Plan, and the Board or the Committee may amend or modify this Award Agreement at any time; provided, however, that, except as provided herein, no termination, amendment, modification or suspension shall materially and adversely alter or impair the rights of the Participant under this Award Agreement, without the Participant's written consent.
(3) This Award Agreement is intended to comply with, or be exempt from, Section 409A of the Code and the regulations and guidance promulgated thereunder ("Section 409A"), and accordingly, to the maximum extent permitted, this Award Agreement shall be interpreted in a manner intended to be in compliance therewith. In no event whatsoever shall the Company Group be liable for any additional tax, interest or penalty that may be imposed on the Participant by Section 409A or any damages for failing to comply with Section 409A. If any provision of the Plan or the Award Agreement would, in the sole discretion of the Committee, result or likely result in the imposition on the Participant, a beneficiary or any other person of additional taxes or a penalty tax under Section 409A, the Committee may modify the terms of the Plan or the Award Agreement, without the consent of the Participant, beneficiary or such other person, in the manner that the Committee, in its sole discretion, may determine to be necessary or advisable to avoid the imposition of such penalty tax. Notwithstanding anything to the contrary in the Plan or the Award Agreement, to the extent that the Participant is a "Specified Employee" (within the meaning of the Committee's established methodology for determining "Specified Employees" for purposes of Section 409A), payment or distribution of any amounts with respect to the RSUs that are subject to Section 409A will be made as soon as practicable following the first business day of the seventh month following the Participant's Separation from Service from the Company Group or, if earlier, the date of the Participant's death.
(4) Delivery of the Shares underlying the RSUs or payment in cash (if permitted pursuant to Section (B)(5)) upon settlement is subject to the Participant satisfying all applicable federal, state, provincial, local, domestic and foreign taxes and other statutory obligations (including, without limitation, the Participant's FICA obligation, National Insurance Contributions or Canada Pension Plan contributions, as applicable), provided, that any Participant that is subject to tax regulation in the United Kingdom or Ireland shall also be subject to the provisions of Exhibit B attached hereto, if applicable. The Company shall have the power and the right to (i) deduct or withhold from all amounts payable to the Participant pursuant to the RSUs or otherwise, or (ii) require the Participant to remit to the Company, an amount sufficient to satisfy any applicable taxes required by law. The Company may permit or require the Participant to satisfy, in whole or in part, the tax obligations by withholding Shares that would otherwise be received upon settlement of the RSUs.
(5) The Company may at any time place legends referencing any applicable federal, state or foreign securities law restrictions on all certificates representing Shares issued pursuant to this Award Agreement. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing Shares acquired pursuant to this Award Agreement in the possession of the Participant.
(6) This Award Agreement shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required, or the Committee determines are advisable. The Participant agrees to take all steps the Company determines are necessary to comply with all applicable provisions of federal, state and foreign securities law in exercising his or her rights under this Award Agreement.
(7) Nothing in the Plan or this Agreement should be construed as providing the Participant with financial, tax, legal or other advice with respect to the RSUs. The Company recommends that the Participant consult with his or her financial, tax, legal and other advisors to provide advice in connection with the RSUs.
(8) All obligations of the Company under the Plan and this Award Agreement, with respect to the Awards, shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company.
(9) To the extent not preempted by federal law, this Award Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware.
(10) This Award Agreement may be executed in one or more counterparts, all of which taken together shall constitute one contract.
(11) The Participant agrees that the Company may, to the extent permitted by applicable law and as provided for in Section 17(d) of the Plan, retain for itself securities or funds otherwise payable to the Participant pursuant to this Award Agreement to satisfy any obligation or debt that the Participant owes the Company or its affiliates; provided that the Company may not retain such funds or securities and set off such obligations or liabilities until such time as 5 they would otherwise be distributable to the Participant, and to the extent that Section 409A is applicable, such offset shall not exceed the maximum offset then permitted under Section 409A.
(12) The Participant acknowledges that if he or she moves to another country during the term of this Award Agreement, additional terms and conditions may apply and as provided for in Section 17(f) of the Plan and the Company reserves the right to impose other requirements to the extent the Company determines it is necessary or advisable in order to comply with local law or facilitate the administration of the Award Agreement. The Participant agrees to sign any additional agreements or undertaking that may be necessary to accomplish the foregoing.
(13) The Participant acknowledges that his or her participation in the Plan as a result of this Award Agreement is further good and valuable consideration for the Participant's obligations under any non-competition, non-solicitation, confidentiality or similar agreement between the Participant and the Company.
(14) Neither this Award Agreement or the Shares that may be awarded hereunder represent any right to the payment of earned wages, and the rights of the Participant with respect to any Shares remains fully contingent and subject to the vesting and other terms and conditions of this Award Agreement.
(15) Any cash payment made pursuant to Section (B)(4) or (B)(5) of this Award Agreement shall be calculated, where necessary, by reference to the prevailing U.S. dollar exchange rate on the proposed payment date (as determined by the Committee in its sole discretion).
(N) Acceptance of Award. By accepting this Award of RSUs, the Participant is agreeing to all of the terms contained in this Award Agreement, including the non-solicitation provision attached hereto as Exhibit A and tax provisions attached hereto as Exhibit B (if applicable). The Participant may accept this Award by indicating acceptance by e-mail or such other electronic means as the Company may designate in writing or by signing this Award Agreement if the Company does not require acceptance by email or such other electronic means. If the Participant desires to refuse the Award, the Participant must notify the Company in writing. Such notification should be sent to CIT Group Inc., Attention: Senior Vice President, Compensation and Benefits, 1 CIT Drive, Livingston, New Jersey 07039, no later than thirty (30) days after the Date of Award. If the Participant declines the Award, it will be cancelled as of the Date of Award. IN WITNESS WHEREOF, this Award Agreement (including any exhibits attached hereto) has been executed by the Company by one of its duly authorized officers as of the Date of Award. CIT Group Inc.
Lisa D. Zonino Executive Vice President Human Resources ACCEPTED AND AGREED:
Participant Name Date
6 EXHIBIT A
Non-Solicitation Provision All capitalized terms shall have the meanings ascribed to them in the Award Agreement, unless specifically set forth otherwise herein. 1. Non-Solicitation of Customers and Clients. During employment with the Company Group and for one year thereafter, the Participant shall not, directly or indirectly, (i) solicit for any Competing Business any client of the Company Group or any specifically identified prospective client of the Company Group, or (ii) cause a client or any specifically identified prospective client of the Company Group to terminate or diminish its business with the Company Group. These restrictions shall apply only to clients of the Company Group or specifically identified prospective clients of the Company Group which the Participant solicited, with which the Participant maintained a business relationship for the Company Group, or about which the Participant obtained Confidential Information on behalf of the Company Group, in the last twenty-four (24) months of employment with the Company Group. 2. Non-Solicitation of Employees. During employment with the Company Group and for one year thereafter, the Participant shall not, directly or indirectly, (i) solicit, recruit, induce or otherwise encourage any Company Group employees to end their employment with the Company Group or to engage in any Competing Business; or (ii) hire or retain as an independent consultant/contractor, on behalf of any Competing Business, any person who was employed with the Company Group within the preceding six months. 3. Definitions. (a) "Competing Business" means any person or entity that competes with the Company Group in the sale, marketing, production, distribution, research or development of Competing Products in the same markets. (b) "Competing Products" means any product or service in existence or under development that competes with any product or service of the Company Group about which the Participant obtained Confidential Information or for which the Participant provided advisory services or had sales, origination, marketing, production, distribution, research or development responsibilities in the last twenty-four (24) months of employment with the Company Group. (c) "Confidential Information" means information in print, audio, visual, digital, electronically-stored or any other form, which the Company Group has acquired and keeps confidential or that is not otherwise known publicly or to the Company Group's competitors, which includes but is not limited to the Company Group's trade secrets, business or marketing plans and strategies, prices and rates, financial data, personnel records, client lists and contact information, client accounts, profit margins, analyses, research and developments, know how, methodologies, designs, inventions, innovations, processes, security and proprietary technology. 7 EXHIBIT B Applicable Foreign Tax Provisions All capitalized terms shall have the meanings ascribed to them in the Award Agreement, unless specifically set forth otherwise herein. United Kingdom: The Participant shall also, if requested by the Company, enter into any tax election the Company deems necessary, including, without limitation, any election under Section 431 of the Income Tax (Earnings and Pensions) Act 2003 in respect of the acquisition of the RSUs or the Shares issued thereunder. Ireland: In a case where the Company or an Affiliate or any other person (the "Relevant Person") is obliged to (or would suffer a disadvantage if they were not to) account for any tax (in any jurisdiction) by virtue of the receipt of any benefit under this Award Agreement or the Plan (whether in cash or Shares) or for any pay related social insurance contributions that are payable or assessable (which, unless the Committee determines otherwise when this Award was made, shall not include employer's pay related social insurance contributions in Ireland) (together, the "Tax Liability"), the Participant (or his personal representatives) must either: (1) make a payment to the Relevant Person of an amount equal to the Tax Liability; or (2) enter into arrangements acceptable to the Relevant Person to secure that such a payment is made (whether by authorizing the sale of some or all of the Shares on his or her behalf and the payment to the Relevant Person of the relevant amount out of the proceeds of sale or otherwise); and in this regard the Participant (or his or her personal representatives) shall do all such things and execute such documents as the Relevant Person may reasonably require in connection with the satisfaction of the Tax Liability. 8 Exhibit 10.35 *** INDICATES CONFIDENTIAL MATERIAL OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION SEPARATELY WITH A REQUEST FOR CONFIDENTIAL TREATMENT. AIRBUS A320 NEO FAMILY AIRCRAFT PURCHASE AGREEMENT Dated as of July 28, 2011
between
AIRBUS S.A.S Seller
and C.I.T. Leasing Corporation Buyer C O N T E N T S
CLAUSES TITLE 0 PURCHASE AGREEMENT 1 DEFINITIONS 2 SALE AND PURCHASE 3 CHANGES 4 PRICE 5 PRICE REVISION 6 PAYMENT TERMS 7 PLANT REPRESENTATIVES - INSPECTION 8 BUYER'S ACCEPTANCE 9 DELIVERY 10 EXCUSABLE DELAY 11 INEXCUSABLE DELAY 12 WARRANTIES AND SERVICE LIFE POLICY 13 PATENT AND COPYRIGHT INDEMNITY 14 TECHNICAL DATA AND SOFTWARE SERVICES 15 SELLER REPRESENTATIVES 16 TRAINING 17 VENDORS' PRODUCT SUPPORT 18 BUYER FURNISHED EQUIPMENT AND DATA
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 2 C O N T E N T S
CLAUSES TITLE 19 ASSIGNMENT 20 DATA RETRIEVAL 21 TERMINATION FOR CERTAIN EVENTS 22 MISCELLANEOUS PROVISIONS
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 3 C O N T E N T S EXHIBITS
EXHIBIT "A" A319-100 SPECIFICATION EXHIBIT "B" CHANGE ORDERS TO A319-100 STANDARD SPECIFICATION WITH NEO (SCNs) EXHIBIT "C" A320-200 SPECIFICATION EXHIBIT "D" CHANGE ORDERS TO A320-200 STANDARD SPECIFICATION WITH NEO (SCNs) EXHIBIT "E" A321-200 SPECIFICATION EXHIBIT "F" CHANGE ORDERS TO A321-200 STANDARD SPECIFICATION (SCNs) WITH NEO EXHIBIT "G-1" SCN FORM EXHIBIT "G-2" MSCN FORM EXHIBIT "H" SELLER SERVICE LIFE POLICY EXHIBIT "I" CERTIFICATE OF ACCEPTANCE EXHIBIT "J" A320 TECHNICAL DATA AND DOCUMENTATION EXHIBIT "K" AIRFRAME PRICE REVISION FORMULA EXHIBIT "L" CFM PROPULSION SYSTEMS PRICE REVISION FORMULA EXHIBIT "M" PW PROPULSION SYSTEMS PRICE REVISION FORMULA EXHIBIT "N" LICENSES AND ON LINE SERVICES EXHIBIT "O" MATERIAL SUPPLY AND SERVICES
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 4 P U R C H A S E A G R E E M E N T This Agreement is made as of July ____, 2011 between
AIRBUS S.A.S., a société par actions simplifiée, created and existing under French law having its registered office at 1 Rond-Point Maurice Bellonte, 31707 Blagnac-Cedex, France and registered with the Toulouse Registre du Commerce under number RCS Toulouse 383 474 814 (the "Seller"), (hereinafter referred to as the "Seller") and C.I.T. Leasing Corporation, a corporation organized and existing under the laws of the State of Delaware, United States of America, having its principal corporate offices located at 11 West 42nd Street
12th floor
New York, New York 10036
USA (hereinafter referred to as the "Buyer") WHEREAS,
the Buyer wishes to firmly purchase and the Seller is willing to sell fifty (50) A320 NEO Family Aircraft, as defined here below, with the specifications and related products and services, and upon the terms and conditions, herein provided, NOW THEREFORE IT IS AGREED AS FOLLOWS: C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 5 1 - DEFINITIONS For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, the following terms will have the following meanings: A320 NEO Family Aircraft – collectively the A319 NEO Aircraft, the A320NEO Aircraft and the A321 NEO Aircraft, as defined in sub- Clause 2.2 of this Agreement. A319 NEO Aircraft - as defined in sub-Clause 2.2 of this Agreement and Exhibit "B" hereto. A320 NEO Aircraft - as defined in sub-Clause 2.2 of this Agreement and Exhibit "D" hereto. A321 NEO Aircraft - as defined in sub-Clause 2.2 of this Agreement and Exhibit "F" hereto. ACT - auxiliary center fuel tank. Affiliate - with respect to any person or entity, any other person or entity directly or indirectly controlling, controlled by or under common control with such person or entity. After-Tax Basis - means with respect to any payment required to be made on an After-Tax Basis ("Required Payment"), that such Required Payment shall be supplemented by and include an additional amount so that, after (i) deduction of all taxes, fees, imposts, duties, and similar charges resulting from such receipt or accrual and of any penalties, fines or interest thereon ("Taxes"), including such Taxes imposed with respect to such additional amount or amounts, and (ii) taking into account any credits or deduction in Taxes allowed to the Indemnitee (as defined in sub-Clause 4.3.3 herein) as a consequence of the payment of (x) the underlying Taxes or other amounts with respect to which the Required Payment is to be made and (y) any Taxes imposed with respect to the Required Payment, the net amount obtained by the Indemnitee equals the Required Payment; provided, however, that for the purposes of such calculations it shall be assumed that the Indemnitee is at all times subject to taxation at the highest applicable marginal rates that apply to the Indemnitee from time to time. Agreement - this Airbus A320 NEO Family Purchase Agreement, including all exhibits, appendixes and Letter Agreements attached hereto, as the same may be amended or modified and in effect from time to time. AirbusWorld corresponds to the Seller's customer portal as further defined in the GTC. Aircraft - any or all of, fifty (50) Airbus A320 NEO Family Aircraft to be purchased by the Seller and sold to the Buyer pursuant to this Agreement, together with all components, equipment, parts and accessories installed in or on such aircraft and the Propulsion Systems installed thereon upon delivery. Airframe - any Aircraft, excluding the Propulsion Systems therefor. Airframe Price Revision Formula - as defined in sub-Clause 5.1 and Exhibit "K" hereto. Airworthiness Authorities means when used in respect of any jurisdiction the government entity, which under the laws of such jurisdiction has control over civil aviation or the registration, airworthiness or operation of aircraft in such jurisdiction. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 6 Alternative Airworthiness Authority - as defined in sub-Clause 2.7 herein. Base Price - for any Aircraft, Airframe or Propulsion Systems, as defined in sub-Clause 4.1 of this Agreement. Buyer Furnished Equipment (or BFE) - for any Aircraft, all the items of equipment that will be furnished by the Buyer and installed in the Aircraft by the Seller, as defined in the Specification. CAA – the Civil Aviation Authority of the United Kingdom. Certificate of Acceptance has the meaning set out in Clause 8.3. CFM – CFM International, the manufacturer of the LEAP-X series Propulsion Systems. COC Data - as defined in sub-Clause 14.9 of this Agreement. Contractual Definition Freeze or CDF has the meaning set out in Clause 2.5.2. Customization Milestones Chart has the meaning set out in Clause 2.5.1. Delivery Date - with respect to an Aircraft, the date on which such Aircraft is delivered by the Seller to the Buyer. Delivery means the transfer of title to the Aircraft from the Seller to the Buyer in accordance with Clause 9. Delivery Location means the facilities of the Seller set forth in sub-Clause 9.1 of this Agreement. Development Changes - as defined in sub-Clause 3.2 of this Agreement. DGAC - the Direction Generale de l'Aviation Civile of France, or any successor agency thereto or any other authority or agency of the Government of France having like jurisdiction. EASA - European Aviation Safety Authority, or any successor agency in force at the time of delivery of the relevant Aircraft, which shall act in lieu and place of the JAA, DGAC or LBA each as defined herein, or any of the government agencies which shall issue a certificate in respect of an Aircraft, as required in sub-Clause 2.6 or 2.7 as the case may be hereof. Excusable Delay - as defined in sub-Clause 10.1 of this Agreement. FAA - the U.S. Federal Aviation Administration of the United States Department of Transportation, or any successor agency thereto or any other authority or agency of the Federal Government of the United States having like jurisdiction. Failure - as defined in sub-Clause 12.2.1 of this Agreement. FAR- the United States Federal Aviation Regulations, as amended from time to time, or any similar regulations or legislation of the United States enacted in substitution or replacement. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 7 thereof. Final Contract Price - as defined in sub-Clause 4.2 of this Agreement. General Terms and Conditions or GTC means the General Terms and Conditions of Access to and Use of AirbusWorld, signed between the Seller and an Affiliate of the Buyer (CIT AI), dated June 1, 2007, attached as Part 2 of Exhibit "N" hereto. Goods and Services means any goods and services that may be purchased by the Buyer from the Seller, excluding Aircraft. Inexcusable Delay - as defined in sub-Clause 11.1 of this Agreement. In-house Warranty - as defined in sub-Clause 12.1.7 of this Agreement. In-house Warranty Labor Rate - as defined in sub-Clause 12.1.7(v) of this Agreement. Initial Operator – the first Operator of an Aircraft following its Delivery hereunder. Interface Problem - as defined in sub-Clause 12.4.1 of this Agreement. Irrevocable SCNs means the list of SCNs, which are irrevocably part of the respective A320 NEO Family Aircraft specification, as expressly set forth in Exhibit "B", "D" and "F" respectively. Item - as defined in sub-Clause 12.2.1 of this Agreement. JAA - the European Joint Airworthiness Authorities, or any successor agency thereto. LBA - Luftfahrt-Bundesamt of Germany or any successor agency thereto. Letter Agreement – those certain letter agreements of corresponding number dated as of the date hereof between the Buyer and the Seller, which are, by their terms, made a part hereof. LIBOR - for each stated interest period, the rate determined on the basis of the offered rates for deposits in US dollars, which appear on the Reuters Screen LIBO Page as of 11:00 a.m., London time, on the day that is two (2) days (other than a Saturday, Sunday or a day that is a legal holiday or a day on which banking institutions are authorized to close in the City of New York, New York, London, England, or Paris, France) before the first day of an interest period. If at least two (2) such offered rates appear on the Reuters Screen LIBO Page, the rate for that interest period will be the arithmetic mean of such offered rates rounded to the nearest basis point (0.5 rounds to 1). If only one (1) offered rate appears, the rate for that interest period will be "LIBOR" as quoted by National Westminster Bank, plc. "Reuters Screen LIBO Page" means the display designated as page "LIBO" on the Reuters Monitor Money Rates Service (or any successor to such page or service). Manufacturer - AIRBUS S.A.S., a société par actions simplifiée, created and existing under French law having its registered office at 1 Rond-Point Maurice Bellonte, 31707 Blagnac-Cedex, France and registered with the Toulouse Registre du Commerce under number RCS Toulouse 383 474 814, or any successor or assignee there of; also referred to herein as "Seller." Manufacturer's Design - shall mean the detailed design and detail Specification of an Aircraft C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 8 originated by the Manufacturer. Manufacturer Specification Change Notice or MSCN has the meaning set out in Clause 3.2 Material has the meaning set out in Clause 1.2 of Exhibit O. Material Breach - as defined in sub-Clause 21.1 of this Agreement. NEO Aircraft means an Aircraft incorporating the New Engine Option. New Engine Option has the meaning set forth in Clause 2.3 hereof. Inexcusable Delay has the meaning set out in Clause 11.1. Operator- any operator of an Aircraft following Delivery hereunder. Pratt and Whitney (or PW) – Pratt and Whitney, the manufacturer of the Pratt & Whitney PW1100G series Propulsion Systems Predelivery Payment - any payment made against the Final Contract Price of an Aircraft according to the schedule set forth in sub-Clause 6.2.2 of this Agreement. Predelivery Payment Reference Price - as defined in sub-Clause 6.2.3 of this Agreement. Propulsion Systems – • for the A319 NEO Aircraft, the A320 NEO Aircraft and the A321 NEO Aircraft, any of (i) the set of two (2) CFMI LEAP-X series engines, including associated standard equipment, installed on such Aircraft on delivery or (ii) the set of two (2) PW1100G series engines including associated standard equipment, installed on such Aircraft on Delivery, in each case as set out in sub-Clause 2.4 hereof and selected as per sub-Clause 4.1.4 hereof. Propulsion Systems Reference Price means the reference price of a set of Propulsion Systems as set out in Exhibit L and M respectively. Propulsion Systems Manufacturer means the manufacturer of the Propulsion Systems as set out in Clause 2.4. Propulsion Systems Price Revision Formula is set out in Exhibit L and M respectively. Ready for Delivery has the meaning set forth in sub-Clause 9.2 hereof. RFC - as defined in sub-Clause 3.3 of this Agreement. SCN or Specification Change Notice - as defined in sub-Clause 3.1 of this Agreement. Scheduled Delivery (or Scheduled Delivery Date) - with respect to an Aircraft, the date scheduled for delivery by the Seller to the Buyer, pursuant to Letter Agreement No. 1 and sub-Clause 9.1 of the Agreement. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 9 Seller Furnished Equipment - shall mean, for any Aircraft, all items of equipment that will be furnished by the Seller and installed in the Aircraft by the Seller, as defined in the Specification. Seller Parts - shall mean Aircraft components, systems, accessories, equipment and parts, manufactured pursuant to Manufacturer's Design. Service Life Policy - as defined in sub-Clause 12.2 of this Agreement. Sharklets means a new large wing tip device, currently under development by the Seller, designed to enhance the eco-efficiency and payload range performance of the A320 family aircraft, and which are part of the New Engine Option and corresponding Irrevocable SCNs. Spare Parts means the items of equipment and material that may be provided pursuant to Exhibit O. Specification - as defined in sub-Clause 2.2 of this Agreement. Standard Specification - as defined in sub-Clause 2.2 of this Agreement. Supplier has the same meaning as Vendor. Supplier Product Support Agreement has the meaning set out in Clauses 12.3 and 17.1.1. SPSA Application means the application on AirbusWorld, which provides the Buyer with access to the Supplier Product Support Agreements. Technical Data - as defined in sub-Clause 14.1 of this Agreement. Total Loss has the meaning set out in Clause 10.5. Training Conference - as defined in sub-Clause 16.1.1.4 of this Agreement. Vendor - each manufacturer (other than a Propulsion System Manufacturer) of a component, equipment, accessory or part installed in an Aircraft at its delivery to the Buyer under this Agreement, or any replacement therefor, other than a Warranted Part, and listed in the Supplier Product Support Agreements manual referred to in sub-Clause 12.3.1 of this Agreement. Vendor Component - as defined in sub-Clause 12.4.3 of this Agreement. Vendor Parts - as defined in sub-Clause 12.3.1 of this Agreement. Warranted Part - as defined in sub-Clause 12.1.1 of this Agreement. Warranty Claim - as defined in sub-Clause 12.1.6(v) of this Agreement. Working Day - with respect to any action to be taken hereunder, a day other than a Saturday, Sunday or other day designated as a holiday in the jurisdiction in which such action is required to be taken. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 10 The terms "herein," "hereof" and "hereunder" and other words of similar import refer to this Agreement, and not a particular Clause thereof. Technical and trade terms not otherwise defined herein will have the meanings assigned to them as generally accepted in the aircraft manufacturing industry. Clause headings and the Index are inserted for convenience of reference only and shall be ignored in the interpretation of this Agreement. In this Agreement unless the context otherwise requires:
(a) references to Clauses, Appendices and Exhibits are to be construed as references to the Clauses of, and Appendices, and Exhibits to this Agreement and references to this Agreement include its Schedules, Exhibits and Appendices;
(b) words importing the plural shall include the singular and vice versa; and
(c) references to a person shall be construed as including, without limitation, references to an individual, firm, company, corporation, unincorporated body of persons and any state or agency of a state.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 11 2 - SALE AND PURCHASE 2.1 General The Seller will cause to be manufactured and will sell and deliver, and the Buyer will buy and take delivery of the Aircraft subject to the terms and conditions contained in this Agreement.
2.2 Specifications The A319-100 NEO Aircraft (the "A319 NEO Aircraft") will be manufactured in accordance with the A319-100 Standard Specification, Document No. J.000.01000, Issue 6, dated March 1, 2007, as amended to reflect a MTOW of 70 metric tons, a MLW of 61 metric tons and a MZFW of 57 metric tons (as so amended, the "A319 Standard Specification", a copy of which is annexed hereto as Exhibit "A"). The A320-200 NEO Aircraft (the "A320 NEO Aircraft") will be manufactured in accordance with the A320-200 Standard Specification, Document No. D.000.02000, Issue 7, dated March 1, 2007, as amended to reflect a MTOW of 77 metric tons, a MLW of 64.5 metric tons and a MZFW of 61 metric tons (as so amended, the "A320 Standard Specification", a copy of which is annexed hereto as Exhibit "C"). The A321-200 NEO Aircraft (the "A321 NEO Aircraft") will be manufactured in accordance with the A321-200 Standard Specification, Document No. E.000.02000, Issue 4, dated March 1, 2007, as amended to include one (1) ACT and to reflect a MTOW of 89 metric tons a MLW of 75.5 metric tons and a MZFW of 71.5 metric tons (as so amended, the "A321 Standard Specification", a copy of which is annexed hereto as Exhibit "E"). The A319 NEO Aircraft, A320 NEO Aircraft and A321 NEO Aircraft are collectively referred to as the "A320 NEO Family Aircraft".
2.3 New Engine Option 2.3.1 The Seller is currently developing a new engine option (the "New Engine Option" or "NEO"), applicable to the A319-100 / A320-200 / A321-200 aircraft. The specification of respectively the A319 NEO Aircraft, the A320 NEO Aircraft and the A321 NEO Aircraft shall be derived from the current A319-100 / A320-200 / A321-200 aircraft´s respective Standard Specification(s) and based on the new Propulsion Systems, as set forth in Clause 2.4 below, and Sharklets, combined with the required airframe structural adaptations, as well as Aircraft systems and software adaptations required to operate such New Engine Option Aircraft. The foregoing is currently reflected in the Irrevocable SCNs respectively listed in Exhibit "B", Exhibit "D" and Exhibit "F", the implementation of which is hereby irrevocably accepted by the Buyer. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 12 2.3.2 The New Engine Option shall modify the design weights of the Standard Specification(s) as follows:
A319 NEO A320 NEO A321 NEO
Aircraft Aircraft Aircraft MLW 62.8t 66.3 t 77.3 t MZFW 58.8 t 62.8 t 73.3 t
It is agreed and understood that the above design weights may be updated upon final NEO specification freeze. The respective A319-100, A320-200 and A321-200 aircraft Standard Specifications for the Aircraft, each as amended by the SCNs respectively set forth in Exhibits "B", "D", "F" hereto, are hereinafter referred to as the "Specifications" (and individually for each Aircraft type, as the "Specification"). The Specifications for the Aircraft may be further modified from time to time pursuant to the provisions of Clause 3 below.
2.4 Propulsion Systems The Airframe shall be equipped with a set of either two (2) CFM LEAP-X Propulsion Systems or two (2) Pratt & Whitney PW1100G Propulsion Systems, as follows;
Pratt & Whitney CFM A319 NEO Aircraft PW1124G LEAP-X 1A24
AET* (23,500 lbf) AET* (23,500 lbf)
or
LEAP-X 1A24E1
AET* (23,500 lbf) A320 NEO Aircraft PW1127G LEAP-X 1A26
AET* (26,300 lbf) AET* (26,300 lbf)
or
LEAP-X 1A26E1
AET* (26,300 lbf) A321 NEO Aircraft PW1133G LEAP-X 1A32
AET* (32,100 lbf) AET* (32,100 lbf)
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 13 or
LEAP-X 1A32B1
AET* (32,100 lbf)
or
LEAP-X 1A32B2
AET* (32,100 lbf)
* AET means Airbus Equivalent Thrust
2.5 Milestones 2.5.1 Customization Milestones Chart Within a reasonable period following signature of the Agreement, the Seller shall provide the Buyer with a customization milestones chart (the "Customization Milestone Chart"), setting out how far in advance of the Scheduled Delivery Month of the Aircraft an SCN must be executed in order to integrate into the Specification any items requested by the Buyer from the Seller's catalogues of Specification change options (the "Option Catalogues").
2.5.2 Contractual Definition Freeze The Customization Milestone Chart shall in particular define the date(s) by which the contractual definition of the Aircraft must be finalized and all SCNs need to have been executed by the Buyer (the "Contractual Definition Freeze" or "CDF") in order to enable their incorporation into the manufacturing of the Aircraft and Delivery of the Aircraft in the Scheduled Delivery Month. Each such date shall be referred to as a "CDF Date".
2.6 Certification 2.6.1 Each Aircraft shall be delivered to the Buyer with EASA (or the relevant Airworthiness Authorities applicable in the jurisdictions of the Manufacturer's facilities in Toulouse, France and Hamburg Germany) Type Certificate, as revised up to Delivery (transport/large transport category aircraft) for the type of Aircraft purchased hereunder, (as such have been obtained in accordance with applicable EASA requirements), and *** be delivered with a valid Certificate of Airworthiness for Export issued by the EASA and in a condition which qualifies the Aircraft for an FAA Certificate of Airworthiness pursuant to FAA FAR Part 21.183. For all A320 NEO Family Aircraft the Seller shall also:
(i) obtain or cause to be obtained from the FAA a Type Certificate (transport category) issued pursuant to FAR 21.29 and each Aircraft shall be in compliance with the applicable provisions of part 25 of the US Federal Aviation Regulations for all the types of aircraft purchased under this Agreement, C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 14 (ii) ***; and
(iii) provide Buyer with all documentation (except for those documents which can only be provided by Buyer) necessary for Buyer to obtain for each Aircraft at the time of Delivery a U.S. Public Health Certificate of Sanitary Construction for the Aircraft.
2.6.2 ***
2.6.3 ***
2.6.4 ***
2.7 *** C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 15
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 16 3 - CHANGES The parties understand and agree that the Specification may be further amended following signature of this Agreement in accordance with the terms of this Clause 3. 3.1 Specification Change Notices The Specification may be amended from time to time by a Specification Change Notice, a written agreement between the parties (each such Specification Change Notice being herein called an "SCN" and being in the form of Exhibit "G-1" hereto). Each SCN will set forth in detail the particular changes to be made in the Specification, and the effect, if any, of such changes on design, performance, weight, balance, time of Delivery, Buyer Furnished Equipment and price of each Aircraft affected thereby and interchangeability or replaceability of parts. SCNs will not be binding on either party until signed by persons duly authorized in writing by the Buyer and the Seller, but upon being so signed will constitute amendments to this Agreement. An SCN may result in an adjustment of the relevant Aircraft Base Price, which adjustment, if any, shall be specified in the SCN.
3.2 Development Changes In the event of the Seller revising the Specification to incorporate Development Changes which have adverse effect on price, Delivery, guaranteed weight, maintenance requirements or performance of the Aircraft or adversely change the interchangeability or replaceability requirements of the Specification with respect to parts, such revision shall be performed through a Manufacturer Specification Change Notice ("MSCN") mutually agreed and signed by both the Buyer and the Seller, which shall be substantially in the form set out in Exhibit "G-2" hereto, or by such other means as may be deemed appropriate. In case the MSCN is necessitated by equipment obsolescence, the MSCN shall be accomplished without requiring the Buyer's consent. For the purpose of this Paragraph 3.2 obsolescence is the characteristic of items and/or components or any part thereof, which has been taken out of production or cannot be purchased on the market. *** The Specification may also be revised by the Seller without an MSCN or the Buyer's consent to incorporate Manufacturer-decided changes that are deemed necessary or useful to correct defects, improve the Aircraft or its process of manufacture, prevent delay, or ensure compliance with this Agreement and that do not increase the price or adversely affect the Delivery, overall dimensions, guaranteed weight, maintenance requirements or performance of the Aircraft or adversely change the interchangeability or replaceability requirements of the Specification with respect to parts (hereinafter called "Development Changes"). Seller shall notify the Buyer of any such Development Changes in a timely fashion.
3.3 Requests and Approvals In the event that the Buyer files a Request for Change ("RFC") with the Seller and the RFC does not subsequently become an SCN for any reason, such RFC will be cancelled without charge to the Buyer. In the event that the Buyer requests the Seller in writing to incorporate a proposed change (excluding Development Changes) in an Aircraft and the Seller agrees to such request but the change is not subsequently made the subject of an SCN for any reason (other than the Seller's unreasonable refusal to sign the SCN or otherwise acting in bad faith), the Buyer will pay to the Seller the reasonable cost of design and other work directly resulting from such request incurred by the Seller, and such costs shall be further limited to the work specifically C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 17 undertaken by the Seller directly in connection with such RFC. In the event that the Buyer requests the Seller in writing to proceed with a proposed change before any requisite approval of the relevant Airworthiness Authority has been obtained and subsequently such Airworthiness Authority approval is not obtained, any SCN which will have been executed in connection with such proposed change will be deemed cancelled.
3.4 Specification Changes Before Delivery If, pursuant to the promulgation of any applicable law or regulation, any change in the Specification has to be made before Delivery of any Aircraft to enable the Buyer to obtain for such Aircraft the standard Airworthiness Certificate referred to in sub-Clause 2.6 or 2.7 (as the case may be) hereof, the Seller will make the required change or modification to the Aircraft. For each such change, the parties will sign an MSCN or an SCN specifying the effect, if any, of such change on design, performance, weight, balance, time of Delivery, Buyer Furnished Equipment and price of each Aircraft affected thereby and interchangeability or replaceability of parts. If the Seller anticipates that the Scheduled Delivery of any Aircraft will be postponed by reason of such change, the Delivery Date of such Aircraft as provided in sub- Clause 9.1 will be extended to the extent of such postponement. The effect on price of such a change will be borne: ***
3.5 Specification Changes After Delivery Sub-Clause 3.4 will not require the Seller to make any changes or modifications to or to make any payments or take any other action with respect to any Aircraft delivered to the Buyer before any law or regulation referred to in sub-Clause 3.4 is to be complied with. Except as otherwise set forth in this Agreement, any such changes or modifications made to an Aircraft after its Delivery to the Buyer will be at the Buyer's expense.
3.6 BFE into SFE The Seller is considering turning certain items, which are currently BFE in the Specification, into SFE and the parties agree that such BFE items turned into SFE shall be purchased by the Buyer from the Seller for each Aircraft, ***
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 18 4 - PRICE
4.1 Base Price of the Aircraft
The Base Price of the A320 NEO Family Aircraft is the sum of:
(i) the Base Price of the Airframe which excludes Propulsion Systems and BFE,
(ii) the Base Price of the SCNs, and
(iii) the Base Price of the Propulsion Systems.
4.1.1 Base Prices of A319 NEO, A320 NEO and A321 NEO Airframe
4.1.1.1 Airframe of the A319 NEO Aircraft
The Base Price of the Airframe of an A319 NEO Aircraft will be the sum of the Base Prices set forth below in (i), (ii), (iii), (iv) and (v):
(i) the Base Price of the Standard Airframe, as defined in the A319-100 Standard Specification set forth in Exhibit "A" hereto (including nacelles and thrust reversers and excluding Buyer Furnished Equipment), at delivery conditions prevailing in January 2010, which is: ***
(ii) the Base Price of SCNs mutually agreed upon prior to the signature of this Agreement and set forth in Exhibit "B" at delivery conditions prevailing in January 2010, which is: *** Such Base Price of SCNs may be revised by the Seller.
(iii) the Base Price of the New Engine Option (excluding Sharklets) at delivery conditions prevailing in January 2010, which is: ***
(iv) the Base Price of the Sharklets at delivery conditions prevailing in January 2010, which is: ***
(v) ***
4.1.1.2 Airframe of the A320 NEO Aircraft The Base Price of the Airframe of an A320 NEO Aircraft will be the sum of the Base Prices set forth below in (i), (ii), (iii), (iv) and (v): C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 19 (i) the Base Price of the Standard Airframe, as defined in the A320-200 Standard Specification set forth in Exhibit "C" hereto (including nacelles and thrust reversers and excluding Buyer Furnished Equipment), at delivery conditions prevailing in January 2010, which is: *** and
(ii) the Base Price of SCNs mutually agreed upon prior to the signature of this Agreement and set forth in Exhibit "D" at delivery conditions prevailing in January 2010, which is: ***
Such Basic Price of SCNs may be revised by the Seller.
(iii) the Base Price of the New Engine Option (excluding Sharklets) at delivery conditions prevailing in January 2010, which is:
***
(iv) the Base Price of the Sharklets at delivery conditions prevailing in January 2010, which is:
***
(v) ***
4.1.1.3 Airframe of the A321 NEO Aircraft The Base Price of the Airframe of an A321 NEO Aircraft will be the sum of the Base Prices set forth below in (i), (ii), (iii), (iv) and (v):
(i) the Base Price of the Standard Airframe, as defined in the A321-200 Standard Specification set forth in Exhibit "E" hereto (including 1 ACT, nacelles and thrust reversers and excluding Buyer Furnished Equipment), at delivery conditions prevailing in January 2010, which is:
*** (ii) the Base Price of SCNs mutually agreed upon prior to the signature of this Agreement and set forth in Exhibit "F" at delivery conditions prevailing in January 2010, which is:
*** Such Basic Price of SCNs may be revised by the Seller.
(iii) the Base Price of the New Engine Option (excluding Sharklets) at delivery conditions prevailing in January 2010, which is:
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 20 ***
(iv) the Base Price of the Sharklets at delivery conditions prevailing in January 2010, which is:
***
(v) ***
4.1.1.4 The Base Price of the Airframe of each A320 NEO Family Aircraft will be revised to the actual Delivery Date of such Aircraft in accordance with the Airframe Price Revision Formula as set forth in sub-Clause 5.1 hereto.
4.1.2 Base Price of the Propulsion Systems 4.1.2.1 The A319 NEO Aircraft PW Propulsion Systems The Base Price of a set of two (2) PW 1124G Propulsion Systems (including additional standard equipment) for the A319 NEO Aircraft, at delivery conditions prevailing in January 2010, is: ***
4.1.2.2 The A319 NEO Aircraft CFM Propulsion Systems
(i) The Base Price of a set of two (2) CFM LEAP-X1A24 Propulsion Systems (including additional standard equipment) for the A319 NEO Aircraft, at delivery conditions prevailing in January 2010 is:
*** or
(ii) The Base Price of a set of two (2) CFM LEAP-X1A24E1 Propulsion Systems (including additional standard equipment) for the A319 NEO Aircraft, at delivery conditions prevailing in January 2010 is:
***
4.1.2.3 The A320 NEO Aircraft PW Propulsion Systems The Base Price of a set of two (2) PW 1127G Propulsion Systems (including additional standard equipment) for the A320 NEO Aircraft, at delivery conditions prevailing in January 2010,is:
*** C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 21 4.1.2.4 The A320 NEO Aircraft CFM Propulsion Systems
(i) The Base Price of a set of two (2) CFM LEAP-X1A26 Propulsion Systems (including additional standard equipment) for the A320 NEO Aircraft, at delivery conditions prevailing in January 2010, is:
*** or
(ii) The Base Price of a set of two (2) CFM LEAP-X1A26E1 Propulsion Systems (including additional standard equipment) for the A320 NEO Aircraft, at delivery conditions prevailing in January 2010 is:
***
4.1.2.5 The A321 NEO Aircraft PW Propulsion Systems The Base Price of a set of two (2) PW 1133G Propulsion Systems (including additional standard equipment) for the A321 NEO Aircraft, at delivery conditions prevailing in January 2010, is: ***
4.1.2.6 The A321 NEO Aircraft CFM Propulsion Systems
(i) The Base Price of a set of two (2) CFM LEAP-X1A32 Propulsion Systems (including additional standard equipment) for the A321 NEO Aircraft, at delivery conditions prevailing in January 2010, is:
*** or
(ii) The Base Price of a set of two (2) CFM LEAP-X1A32B1 Propulsion Systems (including additional standard equipment) for the A321 NEO Aircraft, at delivery conditions prevailing in January 2010 is:
*** or
(iii) The Base Price of a set of two (2) CFM LEAP-X1A32B2 Propulsion Systems (including additional standard equipment) for the A321 NEO Aircraft, at delivery conditions prevailing in January 2010 is:
*** 4.1.3 The Base Prices for each relevant type of Propulsion Systems have been established in accordance with delivery conditions prevailing in January 2010 and have been calculated C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 22 with reference to the Reference Prices of the Propulsion Systems indicated by CFM International and Pratt & Whitney, as the case may be. Such Reference Prices will be revised to the actual Delivery Date of the Aircraft on which the Propulsion Systems are installed in accordance with the relevant CFM and PW revision formulae set forth respectively in Exhibit "L" and Exhibit "M" hereto.
4.1.4 Selection of Propulsion Systems The Buyer shall notify the Seller in writing of its selection of Propulsion Systems for the Aircraft under the terms and conditions set out in this Agreement, as it may be amended from time to time.
4.2 Final Contract Price
The Final Contract Price of an A320 NEO Family Aircraft will be the sum of:
(i) the Base Price of the Airframe constituting a part of such Aircraft, as adjusted to the Delivery Date of such Aircraft in accordance with sub-Clause 5.1 of this Agreement;
(ii) the price (as of delivery conditions prevailing in January 2010) of any SCNs constituting a part of such Aircraft that are entered into pursuant to Clause 3 after the date of execution of this Agreement, as adjusted to the Delivery Date of such Aircraft in accordance with sub-Clause 5.1 of this Agreement;
(iii) the Reference Price of the installed Propulsion Systems constituting a part of such Aircraft as adjusted to the Delivery Date of such Aircraft in accordance with sub-Clause 5.2 of this Agreement; and
(iv) any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the Aircraft and specifically making reference to the Final Contract Price of an Aircraft.
4.3 Taxes, Duties and Imposts 4.3.1 The Seller will bear and pay, and will indemnify and hold harmless the Buyer on an After-Tax Basis for, the amount of any and all taxes, duties, imposts or similar charges of any nature whatsoever that are imposed, levied, assessed, charged or required to be collected by any law, regulation or administrative rule or practice in any jurisdiction on or with respect to or resulting from or in connection with an Aircraft, component, accessory, item of equipment or part delivered or furnished under this Agreement (each a « Furnished Good ») or any act or event with respect thereto and relating to any period, or occurring, on or prior to delivery of the relevant Furnished Good to the Buyer, except that the Buyer will bear and pay the amount of (a) any withholding or deduction levied or required in respect of any amount payable by the Buyer under this Agreement unless such withholding would not have been C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 23 required but for the failure of the Seller to deliver to the Buyer a properly completed and signed withholding tax exemption form reasonably and timely requested by the Buyer (provided such exemption is available to the Seller), (b) any Value Added Tax, if any, (or any equivalent) which the Seller is required to collect from the Buyer upon the delivery to the Buyer of an Aircraft or any other Furnished Good separately invoiced to the Buyer, and (c) any customs duties, taxes and fees required to be paid with respect to the registration of the Aircraft and the importation of the Aircraft into any country or jurisdiction where the Initial Operator has its home base.
4.3.2 The Buyer will bear and pay, and will indemnify and hold harmless on an After-Tax Basis the Seller for, the amount of any and all taxes, duties, imposts or similar charges of any nature whatsoever that are (i) imposed upon the Seller, (ii) imposed upon the Buyer with an obligation on the Seller to withhold or collect the amount thereof from the Buyer or (iii) imposed upon the Seller with an obligation on the Buyer to withhold or collect such amount from the Seller, and that are levied, assessed, charged or required to be collected by any law, regulation or administrative rule or practice in any jurisdiction on or with respect to or resulting from or in connection with any act (other than any act of the Seller or the Manufacturer ) or event with respect to, or the ownership or use of, a Furnished Good and occurring after delivery of the relevant Furnished Good to the Buyer, except that the Seller will bear and pay any customs duties, taxes and fees required to be paid with respect to the exportation of A320 NEO Family Aircraft from France or Germany.
4.3.3 In the event (i) any claim is received by either party ("Indemnitee") from any tax authority for a tax, duty, impost or similar charge, the liability for which has been assumed by the other party ("Indemnitor") pursuant to this sub-Clause 4.3, or (ii) Indemnitee determines that any tax, duty, impost or similar charge, the liability for which has been assumed by Indemnitor pursuant to this sub-Clause 4.3, is payable, Indemnitee will promptly give notice thereof to Indemnitor. At the request of the Indemnitor, Indemnitee shall contest ( or permit Indemnitor to contest in the name of Indemnitor or Indemnitee) any such claim for a tax, duty, impost or similar charge, provided there is a reasonable basis for such contest. Indemnitee will deliver to Indemnitor any exemption certificate or other document reasonably requested by Indemnitor to qualify for any available exemption from such a tax, duty, impost or similar charge. If Indemnitee receives a refund of any tax, duty, impost or similar charge which Indemnitor has paid or for which Indemnitor has indemnified Indemnitee, Indemnitee will promptly pay Indemnitor the amount of such refund.
4.3.4 The Buyer and the Seller agree to cooperate with each other in good faith to take all reasonable steps to mitigate the imposition of any taxes, duties, imposts or similar charges that may be required to be paid in connection with the transfer of title to, and delivery of, the Aircraft or other Furnished Good, provided that nothing in this sub-Clause 4.3.4 shall require either the Buyer or the Seller to take any action which in its sole discretion would have a material adverse effect on its business operations. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 24 5 - PRICE REVISION 5.1 Airframe Price Revision Formula The Base Price of each of the Airframe of each A320 NEO Family Aircraft will be revised to the actual Delivery Date of such Aircraft in accordance with the revision formula set forth in Exhibit "K" hereto unless otherwise provided in this Agreement.
5.2 Propulsion Systems Price Revision Formula The Reference Price of the Propulsion Systems will be revised to the actual Delivery Date of the Aircraft on which such Propulsion Systems are installed in accordance with the appropriate revision formula set forth in, as applicable, Exhibit "L" (CFM) and Exhibit "M" (PW) hereto, unless otherwise provided in this Agreement. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 25 6 - PAYMENT TERMS
6.1.1 *** 6.2 A320 NEO Family Aircraft Predelivery Payments 6.2.1 Predelivery Payments will be paid by the Buyer to the Seller for each A320 NEO Family Aircraft and will, in the aggregate, amount to *** of the Predelivery Payment Reference Price of the Aircraft defined below in sub-Clause 6.2.3.
6.2.2 Predelivery Payments will be paid according to the following schedule: Percentage of Aircraft
Predelivery Payment
Payment Date Reference Price ***
TOTAL PAYMENT PRIOR TO DELIVERY ***
The Seller has received from the Buyer a deposit of *** for each of the fifty (50) firmly ordered A320 NEO Family Aircraft. Such deposits shall be credited against the first Predelivery Payment payable by the Buyer upon execution of this Agreement.
6.2.3 The Predelivery Payment Reference Price is defined as:
***
6.3 Intentionally left blank 6.4 Payment of Final Contract Price Concurrently with the Delivery of each Aircraft, the Buyer will pay to the Seller the Final Contract Price thereof, less the total amount of the Predelivery Payments theretofore received by the Seller for such Aircraft under sub-Clause 6.2 above. Nothing contained herein or in sub-Clause 6.2 shall mean or imply that the Final Contract Price shall be increased in any manner on account of the escalation formula set forth in Clause 6.2.3 above. The Seller's receipt of the full amount of all Predelivery Payments and of the Final Contract Price will be a condition precedent to the Seller's obligation to deliver such Aircraft. Concurrently with the delivery of an Aircraft, the Seller shall transfer in cash to the Buyer the amount of any payment to be made by the Seller to the Buyer in connection with the agreed payment procedure for such Aircraft. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 26 6.5 Payment of Other Amounts Unless otherwise expressly provided for herein, any payments due hereunder or in respect of an Aircraft in addition to those referred to in sub-Clauses 6.2.2 and 6.4 above will be paid by the Buyer concurrently with the delivery of the corresponding Aircraft. In the event that ancillary amounts in connection with an Aircraft delivery are invoiced after delivery of such Aircraft, such amounts will be paid by Buyer within forty-five days after the invoice date.
6.6 Overdue Payments If any payment due the Seller is not received by the Seller on the date or dates as agreed upon between the Buyer and the Seller, and in the event that the Seller has not received payment within five (5) Business Days of the Seller's notice of nonpayment, the Seller will have the right to claim from the Buyer and the Buyer will promptly pay to the Seller upon receipt of such claim ***
6.7 Refund of Predelivery Payments The Buyer will have no right to any refund of any deposit or Predelivery Payment received by the Seller, provided that nothing in this sub- Clause 6.7 shall limit the Buyer's rights to receive the payments set forth in Clauses 10 and 11 hereof upon termination of this Agreement with respect to a particular Aircraft.
6.8 Proprietary Interest The Buyer will not, by virtue of anything contained in this Agreement (including, without limitation, any Predelivery Payments hereunder, or any designation or identification by the Seller of a particular Aircraft as an Aircraft to which any of the provisions of this Agreement refers), and notwithstanding any provision of law to the contrary, acquire any proprietary, insurable or other interest whatsoever in any Aircraft prior to Delivery of and payment for such Aircraft as provided in this Agreement.
6.9 Payment in Full The Buyer's obligation to make payments to the Seller hereunder will not be affected by and will be determined without regard to any setoff, counterclaim, recoupment, defense or other right that the Buyer may have against the Seller or any other person and all such payments will be made without deduction or withholding of any kind. The Buyer will ensure that the sums received by the Seller under this Agreement will be equal to the full amounts expressed to be due the Seller hereunder, without deduction or withholding on account of and free from any and all taxes, levies, imposts, duties or charges of whatever nature, except that if the Buyer is compelled by law to make any such deduction or withholding the Buyer will pay such additional amounts as may be necessary so that the net amount received by the Seller after such deduction or withholding will equal the amounts that would have been received in the absence of such deduction or withholding.
7 - PLANT REPRESENTATIVES - INSPECTION
7.1 Inspection Procedures C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 27 7.1.1 All work to be carried out on the Aircraft and all materials and parts thereof will at all reasonable times during business hours be open to inspection by duly authorized representatives of the Buyer or its designee at the respective works of the Manufacturer and, if possible, at the works of their respective subcontractors, and such representatives will, to carry out the aforesaid inspection, have access to such relevant technical data as is reasonably necessary for this purpose (except that, if access to any part of the respective works where construction is in progress or materials or parts are stored is restricted for security reasons, the Manufacturer will be allowed a reasonable time to make the items available for inspection elsewhere). The actual detailed inspection of the Aircraft, materials and parts thereof will take place only in the presence of the respective inspection department personnel of the Manufacturer or its subcontractors. The procedures for such inspections will be agreed upon with the Buyer prior to any inspection but shall be conducted pursuant to the Seller´s own system of inspection as developed under the supervision of the relevant Aviation Authority.
7.1.2 For the purposes of sub-Clause 7.1.1 above and commencing with the date of this Agreement until the Delivery of the last Aircraft, the Seller will furnish free-of-charge adequate secretarial assistance and suitable office space, office equipment and facilities in or conveniently located with respect to the Manufacturer's works in Toulouse, France, or the Manufacturer's works in Hamburg, Germany, as the case may be, for the use of not more than, in aggregate, four (4) representatives of the Buyer during the aforementioned period at each facility.
7.1.3 All inspections, examinations and discussions with the Seller's, the Manufacturers or their respective subcontractors' engineering or other personnel by the Buyer and its said representatives will be performed in such manner as not to delay or hinder the work to be carried out on the Aircraft or the proper performance of this Agreement. In no event will the Buyer or its representatives be permitted to inspect any aircraft other than the Aircraft.
7.2 INDEMNITY 7.2.1 SCOPE IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS CLAUSE 7, THE SELLER AND THE BUYER PROVIDE THE INDEMNITIES SET FORTH IN SUB-CLAUSES 7.2.2 AND 7.2.3.
7.2.2 SELLER'S INDEMNITY ***
ARISING OUT OF OR IN CONNECTION WITH ANY SUCH TESTS, CHECKOUTS, INSPECTIONS OR CONTROLS UNDER THIS CLAUSE 7.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 28 THIS INDEMNITY OF THE SELLER WILL NOT APPLY FOR ANY SUCH LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES TO THE EXTENT ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE BUYER'S SAID REPRESENTATIVES.
7.2.3 BUYER'S INDEMNITY THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER, THE MANUFACTURER AND ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE SUBCONTRACTORS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS) (I) FOR INJURIES TO OR DEATHS OF THE BUYER'S SAID REPRESENTATIVES PARTICIPATING IN ANY TESTS, CHECKOUTS, INSPECTIONS OR CONTROLS UNDER THIS CLAUSE 7,
(II) FOR LOSS OF OR DAMAGE TO PROPERTY OF THE BUYER'S SAID REPRESENTATIVES, AND
(III) TO THE EXTENT ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE BUYER'S SAID REPRESENTATIVES IN CONECTION WITH ANY SUCH TESTS, CHECKOUTS INSPECTIONS, OR CONTROLS UNDER THIS CLAUSE 7.
WITH RESPECT TO SUB-CLAUSES (I) AND (II) OF THE PRECEDING SENTENCE, THE BUYER WILL NOT BE OBLIGATED TO INDEMNIFY OR HOLD HARMLESS THE SELLER TO THE EXTENT THE LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE FROM THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE SELLER AND THE MANUFACTURER OR ANY OF ITS AFFILIATES.
7.2.4 CLAIMS IN THE EVENT ANY CLAIM IS MADE OR LAWSUIT IS BROUGHT AGAINST EITHER PARTY (OR ITS RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES) FOR DAMAGES FOR DEATH OR INJURY, OR FOR PROPERTY DAMAGE, THE LIABILITY FOR WHICH HAS BEEN ASSUMED BY THE OTHER PARTY PURSUANT TO THIS SUB-CLAUSE 7.2, THE FORMER (INDEMNITEE) WILL PROMPTLY GIVE NOTICE TO THE OTHER PARTY (INDEMNITOR), AND THE INDEMNITOR WILL ASSUME AND CONDUCT THE DEFENSE THEREOF AT ITS SOLE EXPENSE, AND WILL HAVE THE RIGHT TO EFFECT ANY SETTLEMENT WHICH IT, IN ITS OPINION, DEEMS PROPER. IN THE EVENT THAT THE INDEMNITOR DOES NOT ASSUME AND CONDUCT THE DEFENSE OF THE CLAIM OR LAWSUIT, THEN THE INDEMNITEE WILL HAVE THE RIGHT TO PROCEED WITH DEFENSE OF THE CLAIM OR LAWSUIT AS IT DEEMS APPROPRIATE AND WILL HAVE AN ACTION AGAINST THE INDEMNITOR FOR ANY JUDGMENTS, SETTLEMENTS, COSTS OR EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS) INCURRED IN CONDUCTING SAID DEFENSE. FOR THE PURPOSE OF THIS SUB-CLAUSE 7.2, A CLAIM OR LAWSUIT AGAINST THE MANUFACTURER, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE SUBCONTRACTORS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES WILL BE DEEMED TO BE A
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 29 LAWSUIT AGAINST THE SELLER. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 30 8 - BUYER'S ACCEPTANCE 8.1 Acceptance Procedures 8.1.1 The Seller or any Affiliate thereof acting as the Seller's designee will give to the Buyer not less than thirty (30) days' notice of the proposed time when the Buyer's acceptance tests will be conducted, and, in the event that the Buyer elects to attend the said tests, the Buyer will cooperate in complying with the reasonable requirements of the Seller with the intention of completing all tests within five (5) Working Days after commencement for A320 NEO Family Aircraft. Such acceptance tests shall include an acceptance ground inspection and functional tests and an acceptance flight test and shall be conducted in accordance with the Manufacturer's ground inspection and flight test procedures referenced in the Manufacturer's Customer Acceptance Manual (A319 NEO, A320 NEO or A321 NEO Aircraft, as applicable) as such may be revised from time to time (the "Acceptance Tests"). The Buyer shall be entitled to elect to attend the Acceptance Tests. A copy of the Customer Acceptance Manual shall be provided to the Buyer. For A320 NEO Aircraft, the tests will take place at the Manufacturer's works near Toulouse, France, and for A319 NEO, A320 NEO and A321 NEO Aircraft, at the Manufacturer's works in Hamburg, Germany (or at such other facilities of the Manufacturer or any Affiliates thereof as the Seller may specify) and will be carried out by the personnel of the Manufacturer (accompanied, if the Buyer so wishes, by representatives of the Buyer up to a total of four (4) acting as observers, of whom not more than two (2) will have access to the cockpit at any one time). During flight tests, these representatives will comply with the instructions of the Manufacturer's representatives. The Manufacturer will not normally be required in the course of such acceptance tests to fly any of the Aircraft for more than three (3) hours, it being understood that the Manufacturer may be required to fly an Aircraft for an additional period of time to demonstrate the elimination of a non-compliance or defect as set forth in sub-Clause 8.1.3 hereof. The Seller and/or Manufacturer shall provide the Buyer with the required briefing regarding the schedule and contents of the flight test in advance of such flight tests. The Seller shall be responsible for the expenses for all such flight tests.
8.1.2 The Manufacturer's (A319 NEO, A320 NEO or A321 NEO Aircraft as applicable) test parameters and acceptance standards in the ground inspections and flight Acceptance Test procedures represent the measure for acceptance of the Aircraft and results thereof shall be provided to Buyer prior to Delivery. The Seller shall provide the Buyer with the results of the Acceptance Tests. The successful completion of the Acceptance Tests in accordance with the Manufacturer's aircraft acceptance procedure will demonstrate the satisfactory functioning of the Aircraft and their satisfactory results will be deemed to demonstrate compliance with the Specification. In the event that the Buyer does not attend the tests or fails to so cooperate, the Seller may complete them in the absence of the Buyer, whereupon, if such test results are reasonably deemed by the Seller to satisfactorily meet the requirements of all the above mentioned test requirements in accordance with Manufacturer's data and specifications, the Buyer will be deemed to have accepted the results of such tests and the Seller will furnish the results of such Acceptance Tests to the Buyer.
8.1.3 Should it be established from any of the results of the Acceptance Tests that any Aircraft does not comply with the Specifications or that there is a defect, the Buyer, within two (2) days after such tests, will give notice to the Seller specifying such unsuccessful completion or defect. Thereafter the Seller will, without hindrance from the Buyer, carry out any necessary repairs, changes and tests and, as soon as practicable thereafter, resubmit the Aircraft for new acceptance tests (including, if necessary and applicable, an additional flight C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 31 test) to demonstrate the elimination of the non-compliance or defect, such tests to be held and carried out in accordance with this sub- Clause 8.1.
8.2 Seller's Use of Aircraft The Seller will be entitled to use, without compensation to the Buyer or other liability, each Aircraft prior to its Delivery as may be necessary to obtain the certificates required under Clause 2 hereof for the Aircraft, and such use will not affect the Buyer's obligation to accept Delivery of any Aircraft hereunder if: (a) other aircraft of the same model as that of the relevant Aircraft to be delivered hereunder are not available for such tests; provided that such use shall not exceed twenty (20) hours in excess of the flying time normally required to prepare the Aircraft for Delivery without the Buyer's prior written consent, or
(b) special features (including, without limitation, features that relate to the Seller's obligation to obtain certification from any applicable Airworthiness Authority pursuant to Clause 2 hereof) incorporated in such Aircraft necessitate such tests.
8.3 Certificate of Acceptance When the Aircraft is Ready for Delivery as defined below in sub-Clause 9.2, the Buyer will forthwith give to the Seller a signed Certificate of Acceptance in the form attached as Exhibit "I" in respect of the relevant Aircraft. Should the Buyer fail to so deliver the said Certificate, then the Buyer will be deemed to be in default as though it had without warrant rejected Delivery of such Aircraft when duly tendered to it hereunder and will, subject to the applicable grace period set forth in sub-Clause 9.4 hereof, bear all costs and expenses resulting from such delay in Delivery.
8.4 Finality of Acceptance The Buyer's acceptance of Delivery of each Aircraft will constitute waiver by the Buyer of any right it may have under the Uniform Commercial Code as adopted by the State of New York or otherwise to revoke such acceptance for any reason, whether known or unknown to the Buyer at the time of acceptance.
8.5 INDEMNITY 8.5.1 SCOPE IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS CLAUSE 8, THE SELLER AND THE BUYER PROVIDE THE INDEMNITIES SET FORTH IN SUB-CLAUSES 8.5.2 AND 8.5.3.
8.5.2 SELLER'S INDEMNITY ***
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 32 ARISING OUT OF OR IN CONNECTION WITH THE OPERATION OF THE AIRCRAFT DURING ANY GROUND OR FLIGHT TESTS UNDER THIS CLAUSE 8. THIS INDEMNITY OF THE SELLER WILL NOT APPLY FOR ANY SUCH LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES TO THE EXTENT ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE BUYER'S SAID REPRESENTATIVES.
8.5.3 BUYER'S INDEMNITY THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER, THE MANUFACTURER, ITS AFFILIATES AND THEIR RESPECTIVE SUBCONTRACTORS AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS) (I) FOR INJURIES TO OR DEATHS OF THE BUYER'S SAID REPRESENTATIVES PARTICIPATING IN ANY GROUND OR FLIGHT TESTS UNDER THIS CLAUSE 8,
(II) FOR LOSS OF OR DAMAGE TO PROPERTY OF THE BUYER'S SAID REPRESENTATIVES, AND
(III) TO THE EXTENT ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE BUYER'S SAID REPRESENTATIVES, IN CONNECTION WITH ANY SUCH GROUND OR FLIGHT TESTS UNDER THIS CLAUSE 8.
WITH RESPECT TO SUB-CLAUSES (I) AND (II) OF THE PRECEDING SENTENCE, THE BUYER WILL NOT BE OBLIGATED TO INDEMNIFY OR HOLD HARMLESS THE SELLER TO THE EXTENT THE LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE FROM THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE SELLER OR THE MANUFACTURER OR ANY OF THE AFFILIATES.
8.5.4 CLAIMS IN THE EVENT ANY CLAIM IS MADE OR LAWSUIT IS BROUGHT AGAINST EITHER PARTY (OR ITS RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES) FOR DAMAGES FOR DEATH OR INJURY OR FOR PROPERTY DAMAGE, THE LIABILITY FOR WHICH HAS BEEN ASSUMED BY THE OTHER PARTY PURSUANT TO THIS SUB-CLAUSE 8.5, THE FORMER (INDEMNITEE) WILL PROMPTLY GIVE NOTICE TO THE OTHER PARTY (INDEMNITOR), AND THE INDEMNITOR WILL ASSUME AND CONDUCT THE DEFENSE THEREOF AT ITS SOLE EXPENSE, AND WILL EFFECT ANY SETTLEMENT WHICH IT, IN ITS OPINION, DEEMS PROPER. IN THE EVENT THAT THE INDEMNITOR DOES NOT ASSUME AND CONDUCT THE DEFENSE OF THE CLAIM OR SUIT, THEN THE INDEMNITEE WILL HAVE THE RIGHT TO PROCEED WITH DEFENSE OF THE CLAIM OR LAWSUIT AS IT DEEMS APPROPRIATE AND WILL HAVE AN ACTION AGAINST THE INDEMNITOR FOR ANY JUDGMENTS, SETTLEMENTS, COSTS OR EXPENSES (INCLUDING, WITHOUT
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 33 LIMITATION, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS) INCURRED IN CONDUCTING SAID DEFENSE. FOR THE PURPOSE OF THIS SUB-CLAUSE 8.5, A CLAIM OR LAWSUIT AGAINST THE MANUFACTURER, ITS AFFILIATES OR ANY SUBCONTRACTORS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES WILL BE DEEMED TO BE A LAWSUIT AGAINST THE SELLER. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 34 9 - DELIVERY 9.1 Delivery Schedule Subject to the provisions of this Agreement, the Seller agrees to deliver each, A320 NEO Family Aircraft at the Manufacturer's works near Toulouse, France, and each A319 NEO, A320 NEO or A321 NEO Aircraft at the Manufacturer's works in Hamburg, Germany, and the Buyer will accept the same, during the months of Scheduled Delivery *** Sixty (60) days before the month of Scheduled Delivery of each Aircraft, the Seller will give to the Buyer a preliminary indication of the proposed week when the Buyer's acceptance tests are anticipated to be conducted. Not later than thirty (30) days prior to the date scheduled for acceptance tests for a particular Aircraft, the Seller will give the Buyer notice of the Scheduled Delivery Date for such Aircraft.
9.2 Conditions of Acceptance Each Aircraft shall for the purposes of this Agreement be deemed to be "Ready for Delivery" upon (i) the satisfactory completion of its Acceptance Tests as set forth in clause 8 hereof, (ii) the issuance of a EASA, (or the relevant Airworthiness Authorities applicable in the jurisdictions of the Manufacturer's facilities in Toulouse, France and Hamburg Germany) Certificate of Airworthiness for Export in the category "Transport Category" with respect thereto (as applicable and required for the Aircraft) and the Seller's compliance, with respect to such Aircraft, with the applicable and material obligations under clause 2.6 and/or 2.7 as the case may be, and (iii) readiness of the delivery documents for such Aircraft, as set forth in Exhibit "J" hereof.
9.3 Title Title to and risk of loss of and damage to the Aircraft will pass to the Buyer upon Delivery following execution of the Certificate of Acceptance and upon payment of the Final Contract Price for such Aircraft. The Seller will provide the Buyer with a full warranty bill of sale for the Aircraft and such appropriate documents of title or other documents as the Buyer may reasonably request.
9.4 Overdue Payment or Flyaway In the event that:
(i) the Delivery of and payment of the Final Contract Price for the Aircraft is delayed more than five (5) business days after the actual Delivery Date due to any act or omission of the Buyer, or
(ii) within five business (5) days after Seller has tendered Delivery of the Aircraft, the Buyer has failed to remove such Aircraft for reasons other than a reason directly attributable to the Seller, then the Buyer will on demand reimburse the Seller for all reasonable costs and expenses sustained by the Seller and resulting from any such delay or failure.
Buyer shall only be obliged to reimburse Seller for such costs and expenses if (i) Seller notified Buyer of the Scheduled Delivery Date, pursuant to sub-Clause 9.1 above and (ii) is in full compliance with sub-Clause 9.2 above. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 35 For the purpose of this paragraph 9.4, the parties agree that Seller's costs and expenses in the event of a such a delay or failure by Buyer shall be the costs and expenses actually incurred by Seller to store and insure the aircraft, together with interest on the balance of the Final Contract Price due upon Delivery at LIBOR plus 150 basis points. Nothing herein shall, however, affect the rights of the Seller under Clause 21 hereof in the event that such delay or failure exceeds the cure period set forth in sub-Clause 21.1 (9) hereof.
9.5 Fly-away Expenses Except for expenses to be borne by the Seller as provided in sub-Clause 4.3 of this Agreement, all expenses of and in connection with fly- away of Aircraft from their respective Delivery Locations will be borne by the Buyer. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 36 10 - EXCUSABLE DELAY 10.1 Scope Neither the Seller nor the Manufacturer will be responsible for or be deemed to be in default on account of delays in Delivery or failure to deliver or otherwise in the performance of this Agreement or any part hereof due to causes reasonably beyond the Seller's or the Manufacturer's or any it's Affiliates' control or not occasioned by the Seller's or the Manufacturer's or any of it's Affiliates' fault or negligence ("Excusable Delay"), including, but not limited to: acts of God or the public enemy, natural disasters, fires, floods, explosions or earthquakes; epidemics or quarantine restrictions; serious accidents; total or constructive total loss; any law, decision, regulation, directive or other act (whether or not having the force of law) of any government or of the Council of the European Community or the Commission of the European Community or of any national, Federal, State, municipal or other governmental department, commission, board, bureau, agency, court or instrumentality, domestic or foreign; governmental priorities, regulations or orders affecting allocation of materials, facilities or a completed Aircraft or regulations or orders which change the certification or airworthiness requirements described in sub-Clause 2.6 of this Agreement (provided that the Seller shall have in good faith exercised due and timely diligence to comply with such regulations or orders); war, civil war or warlike operations, terrorism, insurrection or riots; failure of transportation; strikes or labor troubles causing cessation, slow down or interruption of work; delay in obtaining any airworthiness or type certification pursuant to sub- Clause 2.7 of this Agreement; inability after due and timely diligence to procure materials, accessories, equipment or parts; general hindrance in transportation. It is expressly understood and agreed that each of (i) any delay caused directly or indirectly by the action or inaction of the Buyer, and (ii) delay in Delivery or otherwise in the performance of this Agreement by the Seller due in whole or in part to any delay in or failure of the Delivery of, or any other event or circumstance relating to, the Propulsion Systems or Buyer Furnished Equipment, will constitute Excusable Delay for the Seller. The Seller will as soon as practicable after becoming aware of any delay falling within the provisions of this sub-Clause 10.1, (i) notify the Buyer of such delay and of the probable extent thereof and (ii) subject to the following provisions, as soon as practicable after the removal of the cause or causes for delay, resume the performance of those obligations affected under this Agreement.
10.2 Unanticipated Delay In the event that the Delivery of any Aircraft will be delayed by reason of an Excusable Delay for a period of more than *** after the end of the calendar month in which Delivery is otherwise required hereunder, the Buyer will be entitled to terminate this Agreement with respect only to the Aircraft so affected upon written notice given to the Seller within *** after the expiration of such *** period. In the event such delay will continue for an additional *** period after the expiration of such *** period, either party will have the option to terminate this Agreement with respect to the Aircraft so affected upon written notice given to the other within *** after the end of such additional *** period. Such termination will discharge all obligations and liabilities of the parties hereunder with respect to such affected Aircraft, except that the ***
10.3 Anticipated Delay
In respect of any Aircraft, the Seller may conclude that Excusable Delays will (i) cause delay C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 37 in Delivery of such Aircraft for a period of more than *** after the end of the calendar month in which Scheduled Delivery is otherwise required or (ii) prevent Delivery of such Aircraft. In such event, in good faith and in accordance with its normal scheduling procedures, the Seller will give written notice to the Buyer of either (i) such delay and its related rescheduling reflecting such delay(s) or (ii) such nondelivery and shall, upon the Buyer's request, provide the Buyer with substantiation of the causes for such delay and its anticipated duration. Within *** after the Buyer's receipt of such notice, either party may terminate this Agreement as to such rescheduled or nondeliverable Aircraft by giving written notice to the other party. Such termination will discharge all obligations and liabilities of the parties hereunder with respect to such affected Aircraft, except that ***
10.4 Delivery Date If, following notice of an anticipated delay under this Clause 10, this Agreement is not terminated in accordance with the provisions of this Clause (with respect to the affected Aircraft), then the date of Delivery otherwise required hereunder will be extended by a period equal to the delay specified in such notice. In such event, the scheduled dates for the affected Aircraft Predelivery Payments and, if applicable in view of the timing of such delay, the dates for providing Buyer Furnished Equipment on-dock, will be extended to correspond with the revised anticipated Delivery date.
10.5 Lost, Destroyed or Damaged Aircraft If any Aircraft is lost, destroyed or damaged beyond economic repair prior to Delivery thereof, ("Total Loss"), the Seller shall give the Buyer immediate written notice of such occurrence. The Seller shall include in said notification (or as soon after the issue of the notice as such information becomes available to the Seller) the earliest date consistent with the Manufacturer's other commitments and production capabilities that an aircraft to replace the Aircraft may be delivered to the Buyer, provided, however, that nothing herein shall require the Seller to manufacture and deliver a replacement aircraft if such manufacture would require the reactivation of its production line for the model or series of aircraft which includes the Aircraft purchased hereunder. The Buyer shall notify the Seller within one (1) month of the date of receipt of the Seller's notice of its election to have the Seller provide such replacement aircraft during the month quoted in the Seller's notice and the parties shall execute an amendment to this Agreement recording the variation in the Scheduled Delivery month for such Aircraft. If the Buyer does not elect to order a replacement Aircraft as provided for above, then this Agreement shall be terminated with respect to the Aircraft that is a Total Loss and the Seller will repay to the Buyer an amount equal to the entire amount of any Predelivery Payments (without interest) received from the Buyer hereunder with respect to such Aircraft.
10.6 REMEDIES THIS CLAUSE 10 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF THE BUYER FOR DELAYS IN DELIVERY OR FAILURE TO DELIVER, OTHER THAN SUCH DELAYS AS ARE COVERED BY CLAUSE 11, AND THE BUYER HEREBY WAIVES ALL RIGHTS, INCLUDING WITHOUT LIMITATION ANY RIGHTS TO INCIDENTAL AND CONSEQUENTIAL DAMAGES OR SPECIFIC PERFORMANCE, TO WHICH IT WOULD OTHERWISE BE ENTITLED IN RESPECT THEREOF. THE BUYER WILL NOT BE ENTITLED TO CLAIM THE REMEDIES AND RECEIVE THE BENEFITS PROVIDED IN THIS CLAUSE 10 TO THE EXTENT THE DELAY REFERRED TO IN THIS CLAUSE 10 IS CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE BUYER OR ITS REPRESENTATIVES. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 38 11 - INEXCUSABLE DELAY
11.1 ***
11.2 ***
11.3 ***
11.4 ***
11.5 ***
11.6 Delivery Date
If, following notice of a delay under this Clause 11, this Agreement is not terminated in accordance with the provisions of sub-Clause 11.4 or sub-Clause 11.5 hereof (with respect to the affected Aircraft), then the Scheduled Delivery Date otherwise required hereunder will be extended by a period equal to the delay specified in Seller's notice to Buyer. ***
11.7 REMEDIES THIS CLAUSE 11 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF THE BUYER FOR DELAYS IN DELIVERY OR FAILURE TO DELIVER, OTHER THAN SUCH DELAYS AS ARE COVERED BY CLAUSE 10, AND THE BUYER HEREBY WAIVES ALL RIGHTS, INCLUDING WITHOUT LIMITATION ANY RIGHTS TO INCIDENTAL AND CONSEQUENTIAL DAMAGES OR SPECIFIC PERFORMANCE, TO WHICH IT WOULD OTHERWISE BE ENTITLED IN RESPECT THEREOF. THE BUYER WILL NOT BE ENTITLED TO CLAIM THE REMEDIES AND RECEIVE THE BENEFITS PROVIDED IN THIS CLAUSE 11 TO THE EXTENT THE DELAY REFERRED TO IN THIS CLAUSE 11 IS CAUSED BY THE NEGLIGENCE OR WILFULL MISCONDUCT OF THE BUYER OR ITS REPRESENTATIVES. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 39 12 - WARRANTIES AND SERVICE LIFE POLICY
12.1 STANDARD WARRANTY
12.1.1 Nature of Warranty
12.1.2 Exceptions
12.1.3 Warranty Periods
12.1.4 Buyer's Remedy and Seller's Obligation
12.1.5 Warranty Claim Requirements
12.1.6 Warranty Administration
12.1.7 In-house Warranty
12.1.8 Standard Warranty Transferability
12.1.9 Warranty for Corrected, Replacement or Repaired Warranted Parts
12.1.10 Good Airline Operation - Normal Wear and Tear
12.2 SELLER SERVICE LIFE POLICY
12.2.1 Definitions
12.2.2 Periods and Seller's Undertaking
12.2.3 Seller's Participation in the Cost
12.2.4 General Conditions and Limitations
12.2.5 Transferability
12.3 VENDOR WARRANTIES
12.3.1 Seller's Support
12.3.2 Vendor's Default
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 40 12.4 INTERFACE COMMITMENT
12.4.1 Interface Problem
12.4.2 Seller's Responsibility
12.4.3 Vendor's Responsibility
12.4.4 Joint Responsibility
12.4.5 General 12.5 EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY
12.6 DUPLICATE REMEDIES
12.7 NEGOTIATED AGREEMENT C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 41 12 - WARRANTIES AND SERVICE LIFE POLICY
This Clause covers the terms and conditions of the warranty and Service Life Policy.
12.1 STANDARD WARRANTY
12.1.1 Nature of Warranty
Subject to the limitations and conditions as hereinafter provided, and except as provided in sub-Clause 12.1.2, the Seller warrants to the Buyer that each Aircraft and each Warranted Part will at the time of Delivery to the Buyer:
(i) be free from defects in material,
(ii) be free from defects in workmanship, including, without limitation, processes of manufacture,
(iii) be free from defects in design (including, without limitation, selection of materials) having regard to the state of the art at the date of such design, and
(iv) be free from defects arising from failure to conform to the Specification, except as to those portions of the Specification relating to performance or where it is stated that such parts of the Specification are estimates or approximations or design aims.
For the purposes of this Agreement, the term "Warranted Part" will mean any Seller proprietary component, equipment, accessory or part that at the time of Delivery of an Aircraft (a) is installed on such Aircraft, (b) is manufactured to the detail design of the Seller or a subcontractor of it and (c) bears a part number of the Seller.
12.1.2 Exceptions
The warranties set forth in sub-Clause 12.1.1 will not apply to Buyer Furnished Equipment, nor to the Propulsion Systems, nor to any component, accessory, equipment or part purchased by the Buyer that is not a Warranted Part, provided, however, that:
(i) any defect in the Seller's workmanship in respect of the installation of such items in the Aircraft, including any failure by the Seller to conform to the installation instructions of the manufacturers of such items that invalidates any applicable warranty from such manufacturers, will constitute a defect in workmanship for the purpose of this sub-Clause 12.1 and be covered by the warranty set forth in sub- Clause 12.1.1(ii), and
(ii) any defect inherent in the Seller's design of the installation, in view of the state of the art at the date of such design, that impairs the use of such items will constitute a defect in design for the purposes of this sub-Clause 12.1 and be covered by the warranty set forth in sub-Clause 12.1.1(iii).
12.1.3 Warranty Periods The warranties described in sub-Clauses 12.1.1 and 12.1.2 hereinabove will be limited to those defects that become apparent ***
12.1.4 Buyer's Remedy and Seller's Obligation C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 42 12.1.4.1 The Buyer's remedy and the Seller's obligation and liability under sub-Clauses 12.1.1 and 12.1.2 hereinabove are limited to, at the Seller's expense and option, the removal, repair, replacement or correction of, or the supply of modification kits rectifying the defect to, and the reinstallation thereof on the Aircraft any defective Warranted Part. Alternatively, the Seller may at its option furnish a credit to the Buyer for the future purchase of material equal to the price at which the Buyer is then entitled to acquire a replacement for the defective Warranted Part. Nothing herein contained will obligate the Seller to correct any failure to conform to the Specification with respect to components, equipment, accessories or parts that the parties agree in writing at the time of Delivery of the affected Aircraft are acceptable deviations or have no material adverse effect on the use, operation or performance of an Aircraft.
12.1.4.2 In the event a defect covered by sub-Clause 12.1.1(iii) becomes apparent within the applicable period set forth in sub-Clause 12.1.3 and the Seller is obligated to correct such defect, the Seller will also, if so requested by the Buyer in writing, make such correction in any Aircraft that has not already been delivered to the Buyer. However, the Seller will not be responsible nor deemed to be in default on account of any delay in Delivery of any Aircraft or otherwise, in respect of performance of this Agreement, due to the Seller's undertaking to make such correction and, rather than accept a delay in Delivery of any such Aircraft, the Buyer and the Seller may agree to deliver such Aircraft with subsequent correction of the defect by the Buyer at the Seller's expense, or the Buyer may elect to accept Delivery and thereafter file a Warranty Claim as though the defect had become apparent immediately after Delivery of such Aircraft.
12.1.4.3 In addition to the remedies set forth in Clauses 12.1.4.1 and 12.1.4.2, the Seller shall reimburse the direct labour costs spent by the Buyer in performing inspections of the Aircraft to determine whether or not a defect exists in any Warranted Part within the Warranty Period or until the corrective technical solution removing the need for the inspection is provided by the Seller, whichever occurs earlier. The above commitment is subject to the following conditions:
(i) such inspections are recommended by a Seller's Service Bulletin to be performed within the Warranty Period;
(ii) the inspection is performed outside of a scheduled maintenance check as recommended by the Seller's Maintenance Planning Document;
(iii) the reimbursement shall not apply for any inspections performed as an alternative to accomplishing corrective action when such corrective action has been offered to the Buyer at the time such inspections are performed or earlier,
(iv) the labour rate to be used for the reimbursement shall be the labour rate defined in sub-Clause 12.1.7, and
(v) the man hours used to determine such reimbursement shall not exceed the Seller's estimate of the man hours required by the Buyer for such inspections.
12.1.5 Warranty Claim Requirements
The Buyer's remedy and the Seller's obligation and liability under this sub-clause 12.1, with respect to each claimed defect, are subject to the following conditions precedent:
(i) the existence of a defect covered by the provisions of this sub-Clause 12.1, C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 43 (ii) the defect's having become apparent within the applicable warranty period, as set forth in sub-Clause 12.1.3,
(iii) the Buyer's having submitted to the Seller proof reasonably satisfactory to the Seller that the claimed defect is due to a matter embraced within this sub-Clause 12.1,
(iv) the Buyer's having returned as soon as reasonably practicable the Warranted Part claimed to be defective to such repair facilities as may be designated by the Seller, except where the Buyer elects to repair a defective Warranted Part in accordance with the provisions of sub-Clause 12.1.7,
(v) the Seller's having received a Warranty Claim fulfilling the conditions of and in accordance with the provisions of sub-Clause 12.1.6 below, and
(vi) such defect did not result from any act or omission of the Buyer, including, but not limited to, any failure to operate and maintain the affected Aircraft or part thereof in accordance with the standards or any matter set forth or covered in sub-Clause 12.1.10.
12.1.6 Warranty Administration
The warranties set forth in sub-Clause 12.1 will be administered as hereinafter provided:
(i) Claim Determination Warranty Claim determination by the Seller will be reasonably based upon the claim details, reports from the Seller's regional representative, historical data logs, inspections, tests, findings during repair, defect analysis and other suitable documents and information.
(ii) Transportation Costs Transportation costs associated with the sending of a defective Warranted Part to the facilities designated by the Seller and the return therefrom of a repaired or replacement Warranted Part will be borne by the Buyer.
(iii) Return of an Aircraft In the event that the Buyer desires to return an Aircraft to the Seller for consideration of a Warranty Claim, the Buyer will notify the Seller of its intention to do so and the Seller will, prior to such return, have the right to inspect such Aircraft and thereafter, without prejudice to its rights hereunder, to repair such Aircraft, at its sole option, either at the Buyer's facilities or at another place acceptable to the Seller. Return of any Aircraft by the Buyer to the Seller and return of such Aircraft to the Buyer's facilities will be at the Buyer's expense.
(iv) On-Aircraft Work by the Seller The Seller recognizes that a defect covered under this sub-Clause 12.1 may justify the dispatch by the Seller of a working team to repair or correct such defect. Such repair or correction may be effected (a) through the embodiment of one or several Seller's Service Bulletin(s) at the Buyer's facilities, or (b) subject to the conditions below, by the Seller's accepting the return of an Aircraft to perform or have performed such repair or correction. The Seller will bear the direct labor and material costs for such on-Aircraft work (for labor costs, at the labor rate defined in sub-Clause 12.1.7). The Buyer will bear all other expenses incurred in performing such repair or correction, including but not limited to travel and living expenses, in excess of the labor costs as defined in the preceding sentence. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 44 The Seller will perform on-Aircraft work if in the Seller's reasonable opinion, such work must require the technical expertise of the Seller. Subject to the preceding sentence and if the Seller is requested to perform the work, the Seller and the Buyer will agree on a schedule and place for the work to be performed.
(v) Warranty Claim Substantiation
For each claim under this sub-Clause 12.1, within ninety (90) days after a defect becomes apparent, the Buyer will give written notice to the Seller that contains at least the following data with respect to a part or Aircraft, as applicable ("Warranty Claim"):
(a) description of defect and action taken, if any,
(b) date of incident and/or of removal date,
(c) description of the defective Warranted Part,
(d) part number,
(e) serial number (if applicable),
(f) position on Aircraft
(g) total flying hours, cycles or calendar times, as applicable, at the date of appearance of a defect,
(h) time since last shop visit at the date of defect appearance,
(i) Manufacturer's serial number of the Aircraft and/or its registration number,
(j) Warranty Claim number,
(k) date of Warranty Claim,
(l) date of Delivery of Aircraft or Warranted Part to the Buyer.
(m) Aircraft total flying hours and/or number of landings at the date, at the date of appearance of a defect,
Warranty Claims are to be addressed as follows:
AIRBUS
CUSTOMER SERVICES DIRECTORATE
WARRANTY ADMINISTRATION
ROND-POINT MAURICE BELLONTE
B.P. 33
F-31707 BLAGNAC
FRANCE
(vi) Replacements
Replacements made pursuant to this sub-Clause 12.1 will be made within the lead time defined in the Seller's Spare Parts Price List (AOG, Critical or Routine as applicable). Replaced components, equipment, accessories or parts will become the Seller's property. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 45 Title to any Aircraft, component, accessory, equipment or part returned by the Buyer to the Seller will at all times remain with the Buyer. When the Seller has possession of a returned component, accessory, equipment or part to which the Buyer has title, the Seller will assume risk of loss therefore, but the Seller will not be liable for loss of use. Title to and risk of loss of a returned component, accessory, equipment or part will pass to the Seller upon shipment by the Seller to the Buyer of any item furnished by the Seller to the Buyer as a replacement therefor. Upon the Seller's shipment to the Buyer of any replacement component, accessory, equipment or part provided by the Seller pursuant to this sub-Clause 12.1, title to and risk of loss of such component, accessory, equipment or part will pass to the Buyer.
(vii) Rejection The Seller will provide reasonable written substantiation in case of rejection of a Warranty Claim. In such event the Buyer will pay to the Seller reasonable inspection and test charges incurred by the Seller in connection with the investigation and processing of such claim. Transportation, insurance, and any other costs associated with the sending of any Warranted Part or any other item, equipment, component or part for which the Buyer's warranty claim is rejected by the Seller will be borne by the Buyer.
(viii) Inspection The Seller will have the right to inspect the affected Aircraft and documents and other records relating thereto in the event of any Warranty Claim under this sub- Clause 12.1.
12.1.7 In-house Warranty
(i) Authorization The Buyer is hereby authorized to perform the repair of Warranted Parts, subject to the terms of this sub-Clause 12.1.7 ("In-house Warranty"). The Buyer will notify the Seller's representative of its decision to perform any in-house repairs before such repairs are commenced, where the estimated cost of such repair is in excess of US Dollars Fifteen Thousand (US$ 15,000), unless it is not practical to do so, in which case the Buyer will notify the Seller of the in-house repair as soon as reasonably practicable. The Buyer's notification shall include sufficient detail regarding the defect, estimated labor hours and material to allow the Seller to ascertain the reasonableness of the estimate.
(ii) Conditions of Authorization The Buyer will be entitled to the benefits under this sub-Clause 12.1.7 for repair of Warranted Parts:
(a) only if adequate facilities and qualified personnel are available to the Buyer,
(b) in accordance with the Seller's written instructions set forth in documents such as the Aircraft Maintenance Manual, Component Maintenance Manual (Manufacturer), Component Maintenance Manual (Vendor) and Structural Repair Manual, and
(c) only to the extent specified by the Seller, or, in the absence of such specification, to the extent reasonably necessary to correct the defect, in accordance with the standards set forth in sub-Clause 12.1.10.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 46 (iii) Seller's Rights
The Seller will have the right to have any Warranted Part, or any part removed therefrom, which is claimed to be defective, returned to the Seller, as set forth in sub- Clause 12.1.6(ii), if, in the reasonable judgment of the Seller, the nature of the defect requires technical investigation. The Seller will further have the right to have a representative present during the disassembly, inspection and testing of any Warranted Part claimed to be defective.
(iv) In-house Warranty Claim Substantiation
Claims for In-house Warranty credit will be filed within the time period set forth in and will contain the same information required in Warranty Claims under sub-Clause 12.1.6(v) and in addition will include:
(a) a report of technical findings with respect to the defect,
(b) for parts required to remedy the defect: - part numbers, - serial numbers (if applicable), - description of the parts, - quantity of parts, - unit price of parts, - total price of parts, - related Seller's or third party's invoices (if applicable),
(c) detailed number of labor hours,
(d) agreed In-house Warranty Labor Rate (defined below in sub-Clause 12.1.7(v)(a)), and
(e) total claim amount.
(v) Credit
The Buyer's sole remedy, and the Seller's sole obligation and liability, in respect of In-house Warranty claims, will be a credit to the Buyer's account. The credit to the Buyer's account will be equal to the direct labor cost expended in performing a repair and to the direct cost of materials incorporated in the repair. Such costs will be determined as set forth below.
(a) To determine direct labor costs, only man hours spent on removal from the Aircraft, disassembly, inspection, repair, reassembly, reinstallation on the Aircraft and final inspection and test (including flight tests if flight tests prove necessary to complete a repair under the In-house Warranty) of the Warranted Part alone will be counted. Man hours required for maintenance work concurrently being carried out on the Aircraft or Warranted Part will not be included. The man hours counted as set forth above will be multiplied by an agreed
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 47 labor rate representing the Buyer's composite average hourly labor rate (excluding all fringe benefits, premium time allowances, social security charges, business taxes and similar items) paid to the Buyer's employees whose jobs are directly related to the performance of the repair (the "In- house Warranty Labor Rate").
(b) Direct material costs are determined by the prices at which the Buyer acquired such material, excluding any parts and materials used for overhaul furnished free of charge by the Seller.
(vi) Limitation on Credit The Buyer will in no event be credited for repair costs (including labor and material) for any Warranted Part exceeding sixty-five percent (65%) of the Seller's current catalog price for a replacement of such defective Warranted Part or exceeding those costs which would have resulted if repairs had been carried out at the Seller's facilities. Such cost will be substantiated in writing by the Seller upon reasonable request by the Buyer.
(vii) Scrapped Material The Buyer will retain any Warranted Part defective beyond economic repair and any defective part removed from a Warranted Part during repair for a period of ninety (90) days after the date of completion of repair or after submission of a claim for In- house Warranty credit relating thereto. Such parts will be returned to the Seller within thirty (30) days of receipt of the Seller's request to that effect. Notwithstanding the foregoing, the Buyer may, with the agreement of the Seller's Representative, scrap any such defective parts that are beyond economic repair and not required for technical evaluation. Scrapped Warranted Parts will be evidenced by a record of scrapped material certified by an authorized representative of the Buyer, which will be kept in the Buyer's file for at least the duration of the warranty periods set forth in this sub-Clause 12.1.
(viii) LIMITATIONS ON LIABILITY OF SELLER THE SELLER WILL NOT BE LIABLE FOR ANY RIGHT, CLAIM OR REMEDY, AND THE BUYER WILL INDEMNIFY THE SELLER AGAINST THE CLAIMS OF ANY THIRD PARTIES FOR ANY DEFECT, NONCONFORMANCE OR PROBLEM OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH ANY REPAIR OF WARRANTED PARTS OR ANY OTHER ACTIONS UNDERTAKEN BY THE BUYER UNDER THIS SUB-CLAUSE 12.1.7, INCLUDING BUT NOT LIMITED TO: (I) LIABILITY IN CONTRACT OR TORT, (II) LIABILITY ARISING FROM THE BUYER'S ACTUAL OR IMPUTED NEGLIGENCE, INTENTIONAL TORTS AND/OR STRICT LIABILITY, AND/OR (III) LIABILITY TO ANY THIRD PARTIES.
12.1.8 Standard Warranty Transferability
The warranties provided for in this sub-Clause 12.1 for any Warranted Part will accrue to the benefit of any airline in revenue service other than the Buyer, if the Warranted Part enters into the possession of any such airline as a result of a pooling or leasing agreement between such airline and the Buyer, in accordance with the terms and subject to the limitations and exclusions of the foregoing warranties and to applicable laws or regulations.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 48 12.1.9 Warranty for Corrected, Replacement or Repaired Warranted Parts
Whenever any Warranted Part that contains a defect for which the Seller is liable under sub- Clause 12.1 has been corrected, repaired or replaced pursuant to the terms of this Clause 12.1, the period of the Seller's warranty with respect to such corrected, repaired or replacement Warranted Part, whichever may be the case, will be the remaining portion of the original warranty in respect of such corrected, repaired or replacement Warranted Part, provided, however, that the period of the Seller's warranty with respect to a corrected, repaired or replacement Warranted Part resulting from a defect in design shall be at least eighteen (18) months from the date the corrected, repaired or replaced Warranted Part is received by the Buyer. In the event that a defect is attributable to a defective repair or replacement by the Buyer, a Warranty Claim with respect to such defect will not be allowable, notwithstanding any subsequent correction or repairs, and will immediately terminate the remaining warranties under this sub-Clause 12.1 in respect of the affected Warranted Part.
12.1.10 Good Airline Operation - Normal Wear and Tear
The Buyer's rights under this sub-Clause 12.1 are subject to the Aircraft and each component, equipment, accessory and part thereof being maintained, overhauled, repaired and operated in accordance with good commercial airline practice, all technical documentation and any other instructions issued by the Seller, the Vendors or the manufacturer of the Propulsion Systems and all applicable rules, regulations and directives of the relevant Aviation Authorities. The Seller's liability under this sub-Clause 12.1 will not extend to normal wear and tear nor to:
(i) any Aircraft or component, equipment, accessory or part thereof that has been repaired, altered or modified after Delivery, except by the Seller or in a manner approved by the Seller;
(ii) any Aircraft or component, equipment, accessory or part thereof that has been operated in a damaged state; or
(iii) any component, equipment, accessory or part from which the trademark, trade name, part or serial number or other identification marks have been removed.
This waiver of the Seller's liability by the Buyer will not apply in the cases of sub-Clause 12.1.10(i) and sub-Clause 12.1.10(ii) above if the Buyer submits evidence reasonably satisfactory to the Seller that the defect did not arise as a consequence of either of said cases.
12.2 SERVICE LIFE POLICY
In addition to the warranties set forth in sub-Clause 12.1 above, the Seller further agrees that should a Failure occur in any Item, then, subject to the general conditions and limitations set forth in sub-Clause 12.2.4 below, the provisions of this sub-Clause 12.2 will apply.
12.2.1 Definitions
For the purposes of this sub-Clause 12.2, the following definitions will apply:
12.2.1.1 "Item" means any of the Seller components, equipment, accessories or parts listed in Exhibit "H" hereto which are installed on an Aircraft at any time during the period of effectiveness of the Service Life Policy as defined below in sub-Clause 12.2.2
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 49 12.2.1.2 "Failure" means any breakage of, or defect in, an Item that has occurred, that is inherent to the design, manufacture of the Aircraft or the installation of such Item, and that materially impairs the utility of the Item, provided that any such breakage of, or defect in, any Item did not result from any breakage or defect in any other Aircraft part or component or from any other extrinsic force.
12.2.2 Periods and Seller's Undertaking
Subject to the general conditions and limitations set forth in sub-Clause 12.2.4 below, the Seller agrees that if a Failure occurs in an Item before the Aircraft in which such Item is installed has completed *** the Seller will, at its own discretion, as promptly as practicable and for a price that reflects the Seller's financial participation as hereinafter provided, either:
(i) design and furnish to the Buyer a correction for such Item subject to a Failure and provide any parts required for such correction (including Seller designed standard parts but excluding industry standard parts), or,
(ii) replace such Item.
12.2.3 Seller's Participation in the Cost
***
12.2.4 General Conditions and Limitations
12.2.4.1 The undertakings given in this sub-Clause 12.2 will be valid after the period of the Seller's warranty applicable to an Item under sub-Clause 12.1.
12.2.4.2 The Buyer's remedy and the Seller's obligation and liability under this Service Life Policy are subject to compliance by the Buyer with the following conditions precedent:
(i) The Buyer will maintain log books and other historical records with respect to each Item adequate to enable determination as to whether the alleged Failure is covered by this Service Life Policy and, if so, to define the portion of the cost to be borne by the Seller in accordance with sub-Clause 12.2.3 above.
(ii) The Buyer will keep the Seller informed of any significant incidents relating to an Aircraft, howsoever occurring or recorded.
(iii) The conditions of sub-Clause 12.1.10 will have been complied with.
(iv) The Buyer will carry out specific structural inspection programs for monitoring purposes as may be established from time to time by the Seller. Such programs will be, to the extent possible, compatible with the Buyer's operational requirements and will be carried out at the Buyer's expense. Reports relating thereto will be regularly furnished to the Seller.
(v) In the case of any breakage or defect, the Buyer will report the same in writing to the Seller within ninety (90) days after any breakage or defect in an Item becomes apparent, whether or not said breakage or defect can reasonably be expected to occur in any other Aircraft, and the Buyer will inform the Seller in sufficient detail about the breakage or defect to enable the Seller to determine whether said breakage or defect is subject to this Service Life Policy.
12.2.4.3 Except as otherwise provided in this sub-Clause 12.2, any claim under this Service Life Policy will be administered as provided in, and will be subject to the terms and C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 50 conditions of, sub-Clause 12.1.6.
12.2.4.4 In the event that the Seller will have issued a modification applicable to an Aircraft, the purpose of which is to avoid a Failure, the Seller may elect to supply the necessary modification kit free of charge or under a pro rata formula established by the Seller. If such a kit is so offered to the Buyer by written notice describing such issued modification, then, in respect of such Failure and any Failures that could ensue therefrom, the validity of the Seller's commitment under this sub-Clause 12.2 will be subject to the Buyer's incorporating such modification in the relevant Aircraft, within a reasonable time, as promulgated by the Seller and in accordance with the Seller's instructions.
12.2.4.5 THIS SERVICE LIFE POLICY IS NEITHER A WARRANTY, PERFORMANCE GUARANTEE, NOR AN AGREEMENT TO MODIFY ANY AIRCRAFT OR AIRFRAME COMPONENTS TO CONFORM TO NEW DEVELOPMENTS OCCURRING IN THE STATE OF AIRFRAME DESIGN AND MANUFACTURING ART. THE SELLER'S OBLIGATION UNDER THIS SUB-CLAUSE 12.2 IS TO MAKE ONLY THOSE CORRECTIONS TO THE ITEMS OR FURNISH REPLACEMENTS THEREFOR AS PROVIDED IN THIS SUB-CLAUSE 12.2. THE BUYER'S SOLE REMEDY AND RELIEF FOR THE NONPERFORMANCE OF ANY OBLIGATION OR LIABILITY OF THE SELLER ARISING UNDER OR BY VIRTUE OF THIS SERVICE LIFE POLICY WILL BE IN MONETARY DAMAGES, LIMITED TO THE AMOUNT THE BUYER REASONABLY EXPENDS IN PROCURING A CORRECTION OR REPLACEMENT FOR ANY ITEM THAT IS THE SUBJECT OF A FAILURE COVERED BY THIS SERVICE LIFE POLICY AND TO WHICH SUCH NONPERFORMANCE IS RELATED, LESS THE AMOUNT THAT THE BUYER OTHERWISE WOULD HAVE BEEN REQUIRED TO PAY UNDER THIS SUB- CLAUSE 12.2 IN RESPECT OF SUCH CORRECTED OR REPLACEMENT ITEM. WITHOUT LIMITING THE EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN SUB-CLAUSE 12.5, THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL CLAIMS TO ANY FURTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES, ARISING UNDER OR BY VIRTUE OF THIS SERVICE LIFE POLICY.
12.2.5 Transferability
The Buyer's rights under this sub-Clause 12.2 will not be assigned, sold, leased, transferred or otherwise alienated by operation of law or otherwise, without the Seller's prior written consent.
Any unauthorized assignment, sale, lease, transfer or other alienation of the Buyer's rights under this Service Life Policy will, as to the particular Aircraft involved, immediately void this Service Life Policy in its entirety.
12.3 VENDOR WARRANTIES
Definitions:
• "Vendor" means any supplier of Vendor Parts. • "Vendor Part" means any component, equipment, accessory or part installed in an Aircraft at the time of Delivery thereof as to which there exists a Supplier Product Support Agreement.
However, the Propulsion Systems and Buyer Furnished Equipment and other equipment selected by the Buyer to be supplied by suppliers with whom the Seller has no existing enforceable warranty agreements are not Vendor Parts.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 51 • "Supplier Product Support Agreement" means an agreement between the Seller and a Vendor, as further described in sub-Clause 17.1.2, containing enforceable and transferable warranties and in the case of landing gear suppliers, service life policies for selected structural landing gear elements.
12.3.1 Seller's Support
Prior to Delivery of the first Aircraft, the Seller will obtain from all Vendors listed in the Supplier Product Support Agreements manual enforceable and transferable warranties and indemnities against patent and copyright infringements (copies of which will be furnished to the Buyer) for components, equipment, accessories and parts of the Vendors that are installed in an Aircraft at the time of Delivery thereof ("Vendor Parts," it being understood that such term will not include the Propulsion Systems, Buyer Furnished Equipment or other equipment selected by the Buyer to be supplied by Vendors with whom the Seller has no existing enforceable warranty agreements). The Seller will also obtain enforceable and transferable Vendor service life policies (copies of which will be furnished to the Buyer) from landing gear Vendors for selected structural landing gear elements. The Seller undertakes to supply to the Buyer such Vendor warranties, Vendor service life policies and indemnities against patent and copyright infringements substantially in the form summarized in the Supplier Product Support Agreements manual.
12.3.2 Vendor's Default 12.3.2.1 In the event that any Vendor under any standard warranty or indemnity against patent and copyright infringements obtained by the Seller pursuant to sub-Clause 12.3.1 or Clause 13 hereof defaults in the performance of any material obligation under such warranty or indemnity against patent and copyright infringements with respect to a Vendor Part, and the Buyer submits within a reasonable time to the Seller reasonable proof that such default has occurred, then sub-Clause 12.1 or Clause 13 of this Agreement will apply to the extent the same would have been applicable had such Vendor Part been a Warranted Part except that, for obligations covered under sub-Clause 12.1, the shorter of (i) the Vendor's warranty period as indicated in the Supplier Product Support Agreements manual and (ii) the Seller's warranty period as indicated in sub-Clause 12.1.3 of this Agreement will apply.
12.3.2.2 In the event that any Vendor under any Vendor service life policy obtained by the Seller pursuant to sub-Clause 12.3.1 hereof defaults in the performance of any material obligation with respect thereto, and the Buyer submits within reasonable time to the Seller reasonable proof that such default has occurred, then sub-Clause 12.2 of this Agreement will apply to the extent the same would have been applicable had such component, equipment, accessory or part been listed in Exhibit "H" hereto.
12.3.2.3 At the Seller's request, the Buyer will assign to the Seller, and the Seller will be subrogated to, all of the Buyer's rights against the relevant Vendor, with respect to and arising by reason of such default and the Buyer will provide reasonable assistance to enable the Seller to enforce the rights so assigned.
12.4 INTERFACE COMMITMENT
12.4.1 Interface Problem
If the Buyer experiences any technical problem in the operation of an Aircraft or its systems due to a malfunction, the cause of which, after due and reasonable investigation, is not readily identifiable by the Buyer, but which the Buyer reasonably believes to be attributable to the design characteristics of one or more components of the Aircraft (an "Interface Problem"), the Seller will, if requested by the Buyer, and without additional charge to the Buyer, promptly conduct or have conducted an investigation and analysis of such problem
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 52 to determine, if possible, the cause or causes of the problem and to recommend such corrective action as may be feasible, provided, however, that if the Seller reasonably determines, after such due and reasonable investigation, that the Interface Problem was due to or caused by any act or omission of the Buyer in performance of its obligations hereunder, the Buyer will pay to the Seller all reasonable costs and expenses incurred by the Seller during such investigation. The Buyer will furnish to the Seller all data and information in the Buyer's possession relevant to the Interface Problem and will cooperate with the Seller in the conduct of the Seller's investigations and such tests as may be required. At the conclusion of such investigation the Seller will promptly advise the Buyer in writing of the Seller's opinion as to the cause or causes of the Interface Problem and the Seller's recommendations as to corrective action.
12.4.2 Seller's Responsibility If the Seller reasonably determines that the Interface Problem is primarily attributable to the design of a Warranted Part, the Seller will, if requested by the Buyer, correct the design of such Warranted Part, pursuant to the terms and conditions of sub-Clause 12.1.
12.4.3 Vendor's Responsibility If the Seller determines that the Interface Problem is primarily attributable to the design of a component, equipment, accessory or part other than a Warranted Part ("Vendor Component"), the Seller will, if requested by the Buyer, reasonably assist the Buyer in processing any warranty claim the Buyer may have against the manufacturer of such Vendor Component. If the manufacturer of the Vendor Component defaults in the performance of any material obligation under its warranty, the provisions of sub-Clause 12.3.2 shall apply.
12.4.4 Joint Responsibility
If the Seller determines that the Interface Problem is attributable partially to the design of a Warranted Part and partially to the design of any Vendor Component, the Seller will, if requested by the Buyer, seek a solution to the Interface Problem through cooperative efforts of the Seller and any Vendor involved. The Seller will promptly advise the Buyer of such corrective action as may be proposed by the Seller and any such Vendor. Such proposal will be consistent with any then existing obligations of the Seller hereunder and of any such Vendor to the Buyer. Such corrective action, unless reasonably rejected by the Buyer, will constitute full satisfaction of any claim the Buyer may have against either the Seller or any such Vendor with respect to such Interface Problem.
12.4.5 General
12.4.5.1 All requests under this sub-Clause 12.4 will be directed both to the Seller and the affected Vendors.
12.4.5.2 Except as specifically set forth in this sub-Clause 12.4, this sub-Clause 12.4 will not be deemed to impose on the Seller any obligations not expresslys et forth elsewhere in this Agreement.
12.4.5.3 All reports, recommendations, data and other documents furnished by the Seller to the Buyer pursuant to this sub-Clause 12.4 will be deemed to be delivered under this Agreement and will be subject to the terms, covenants and conditions set forth in this Clause 12 and in sub-Clause 22.4.
12.5 EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY
THIS CLAUSE 12 (INCLUDING ITS SUBPROVISIONS) SETS FORTH THE EXCLUSIVE WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF THE
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 53 SELLER, AND THE EXCLUSIVE REMEDIES AVAILABLE TO THE BUYER, WHETHER UNDER THIS AGREEMENT OR OTHERWISE, ARISING FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART OR SERVICE DELIVERED UNDER THIS AGREEMENT. THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS, GUARANTEES AND LIABILITIES OF THE SELLER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, WHETHER EXPRESS OR IMPLIED BY CONTRACT, TORT, OR STATUTORY LAW OR OTHERWISE, WITH RESPECT TO ANY NONCONFORMITY OR DEFECT OR PROBLEM OF ANY KIND IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART OR SERVICE DELIVERED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO:
(1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR ANY GENERAL OR PARTICULAR PURPOSE;
(2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT WITH RESPECT TO SUCH DEFECT, NONCONFORMITY OR PROBLEM;
(4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO, ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, IMPLIED WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY OR FAILURE TO WARN;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE;
(6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR LOCAL STATUTE OR AGENCY;
(7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
THE WARRANTIES AND SERVICE LIFE POLICY PROVIDED BY THIS AGREEMENT WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY THE SELLER AND THE BUYER. IN THE EVENT THAT ANY PROVISION OF THIS CLAUSE 12 SHOULD FOR ANY REASON BE HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS CLAUSE 12 WILL REMAIN IN FULL FORCE AND EFFECT.
12.6 DUPLICATE REMEDIES C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 54 The remedies provided to the Buyer under this Clause 12 as to any defect in respect of the Aircraft or any part thereof are mutually exclusive and not cumulative. The Buyer will be entitled to the remedy that provides the maximum benefit to it, as the Buyer may elect, pursuant to the terms and conditions of this Clause 12 for any such particular defect for which remedies are provided under this Clause 12; provided, however, that the Buyer will not be entitled to elect a remedy under one part of this Clause 12 that constitutes a duplication of any remedy elected by it under any other part hereof for the same defect.
12.7 NEGOTIATED AGREEMENT The Buyer and the Seller agree that this Clause 12 has been the subject of discussion and negotiation and is fully understood by the parties and that the price of the Aircraft and the other mutual agreements of the parties set forth in this Agreement were arrived at in consideration of, inter alia, the provisions of this Clause 12, specifically including the Exclusivity of Warranties and General Limitations of Liability provisions and the Duplicate Remedies provisions set forth in sub-Clauses 12.5 and 12.6 herein. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 55 13 - PATENT AND COPYRIGHT INDEMNITY
13.1 Indemnity
13.1.1 Subject to the provisions of Clause 13.2.3, the Seller will indemnify the Buyer from and against any damages, costs and/or expenses including legal costs (excluding damages, costs, expenses, loss of profits and other liabilities in respect of or resulting from loss of use of the Aircraft) resulting from any infringement or claim of infringement by the Airframe (or any part or software installed therein at Delivery) of: (i) any British, French, German, Spanish or U.S. patent;
and
(ii) any patent issued under the laws of any other country in which the Buyer may lawfully operate the Aircraft, provided that:
(1) from the time of design of such Airframe, accessory, equipment and/or part and until infringement claims are resolved, such country is a party to the Chicago Convention on International Civil Aviation of December 7, 1944, and are each fully entitled to all benefits of Article 27 thereof,
or in the alternative,
(2) from such time of design and until infringement claims are resolved, such country is a party to the International Convention for the Protection of Industrial Property of March 20, 1883 ("Paris Convention");
and
(iii) in respect of computer software installed on the Aircraft, any copyright, provided that the Seller's obligation to indemnify will be limited to infringements in countries which, at the time of infringement, are members of The Berne Union and recognize computer software as a "work" under the Berne Convention.
13.1.2 Clause 13.1.1 will not apply to
(i) Buyer Furnished Equipment or Propulsion Systems; or
(ii) parts not the subject of a Supplier Product Support Agreement; or
(iii) software not provided by the Seller or under the specification or direction of the Seller, provided that this Clause 13.1.2(iii) shall not apply to Airbus Software or Supplier Software, as defined in Exhibit N to this Agreement.
13.1.3 In the event that the Buyer, due to circumstances contemplated in Clause 13.1.1, is prevented from using the Aircraft (whether by a valid judgment of a court of competent jurisdiction or by a settlement arrived at between claimant, Seller and Buyer), the Seller will at its discretion and expense either:
(i) procure for the Buyer the right to use the Aircraft; or
(ii) replace the infringing part of the Aircraft as soon as possible with a non-infringing substitute complying in all other respects with the requirements of this Agreement.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 56 13.2 Administration of Patent and Copyright Indemnity Claims 13.2.1 If the Buyer receives a written claim or a suit is threatened or commenced against the Buyer for infringement of a patent or copyright referred to in Clause 13.1, the Buyer will:
(i) forthwith notify the Seller giving particulars thereof;
(ii) furnish to the Seller all data, papers and records within the Buyer's control or possession relating to such patent or claim;
(iii) refrain from admitting any liability or making any payment or assuming any expenses, damages, costs or royalties or otherwise acting in a manner prejudicial to the defense or denial of such suit or claim provided always that nothing in this sub-Clause (iii) shall prevent the Buyer from paying such sums as may be required in order to obtain the release of the Aircraft and allow for the normal, intended use of the Aircraft, provided such payment is accompanied by a denial of liability and is made without prejudice, in each case to the extent possible;
(iv) reasonably co-operate with, and render all such reasonable assistance to, the Seller as may be pertinent to the defense or denial of the suit or claim [the direct and reasonable costs of which shall be borne by the Seller;
(v) act in such a way as to reasonably mitigate damages, costs and expenses and / or reduce the amount of royalties which may be payable.
13.2.2 The Seller will be entitled either in its own name or on behalf of the Buyer to conduct negotiations with the party or parties alleging infringement and may assume and conduct the defense or settlement of any suit or claim in the manner which, in the Seller's opinion, it deems proper.
13.2.3 The Seller's liability hereunder will be conditional upon the strict and timely compliance by the Buyer with the terms of this Clause and is in lieu of any other liability to the Buyer express or implied which the Seller might incur at law as a result of any infringement or claim of infringement of any patent or copyright. THE INDEMNITY PROVIDED IN THIS CLAUSE 13 AND THE OBLIGATIONS AND LIABILITIES OF THE SELLER UNDER THIS CLAUSE 13 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER INDEMNITIES, WARRANTIES, OBLIGATIONS, GUARANTEES AND LIABILITIES ON THE PART OF THE SELLER AND RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY ARISING FROM OR WITH RESPECT TO LOSS OF USE OR REVENUE OR CONSEQUENTIAL DAMAGES), WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OR THE LIKE BY ANY AIRFRAME, PART OR SOFTWARE INSTALLED THEREIN AT DELIVERY, OR THE USE OR SALE THEREOF, PROVIDED THAT, IN THE EVENT THAT ANY OF THE AFORESAID PROVISIONS SHOULD FOR ANY REASON BE HELD UNLAWFUL OR OTHERWISE INEFFECTIVE, THE REMAINDER OF THIS CLAUSE WILL REMAIN IN FULL FORCE AND EFFECT. THIS INDEMNITY AGAINST PATENT AND COPYRIGHT INFRINGEMENTS WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY THE SELLER AND THE BUYER. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 57 14 TECHNICAL DATA AND SOFTWARE SERVICES This Clause covers the terms and conditions for the supply of technical data and software services (hereinafter "Technical Data ") to support the Aircraft operation.
14.1 Scope The Technical Data shall be supplied in the English language using the aeronautical terminology in common use. Range, form, type, format, quantity and delivery schedule of the Technical Data to be provided under this Agreement are covered in Exhibit "J" hereto. Not used or only partially used Technical Data provided pursuant to this Clause shall not be compensated in cash or credited other Goods and Services to the Buyer.
14.2 Aircraft Identification for Technical Data 14.2.1 For the customized Technical Data the Buyer agrees to the allocation of fleet serial numbers ("Fleet Serial Numbers") in the form of block of numbers selected in the range from 001 to 999.
14.2.2 The sequence shall not be interrupted except if two (2) different Propulsion Systems or two (2) different Aircraft models are selected.
14.2.3 The Buyer shall indicate to the Seller the Fleet Serial Number allocated to each Aircraft corresponding to the Aircraft rank in the Delivery schedule set forth in Clause 9.1 hereof within no later than twelve (12) months before the Scheduled Delivery Month of the first Aircraft. The subsequent allocation of such Fleet Serial Numbers to Manufacturer's Serial Numbers for the purpose of producing customized Technical Data shall not constitute any C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 58
property, insurable or other interest of the Buyer whatsoever in any Aircraft prior to the Delivery of such Aircraft as provided for in this Agreement. The affected customized Technical Data are:
Aircraft Maintenance Manual,
Illustrated Parts Catalog,
Trouble Shooting Manual,
Aircraft Wiring Manual,
Aircraft Schematics Manual,
Aircraft Wiring Lists.
14.3 Integration of Equipment Data
14.3.1 Supplier Equipment Information relating to Supplier equipment which is installed on the Aircraft by the Seller shall be introduced into the customized Technical Data to the extent necessary for the comprehension of the systems concerned, at no additional charge to the Buyer for the Technical Data basic issue. 14.3.2 Buyer Furnished Equipment
14.3.2.1 The Seller shall introduce Buyer Furnished Equipment data, for equipment which is installed on the Aircraft by the Seller, into the customized Technical Data at no additional charge to the Buyer for the Technical Data basic issue, provided such data is provided in accordance with the conditions set forth in Clauses 14.3.2.2 through 14.3.2.5 hereunder.
14.3.2.2 The Buyer shall supply the data related to Buyer Furnished Equipment to the Seller at least six (6) months before the Scheduled Delivery month of the applicable Aircraft unless otherwise agreed between Buyer and Seller. The Buyer Furnished Equipment data supplied to the Buyer by the Seller shall be in English Language.
14.3.2.3 The supplied Buyer Furnished Equipment data shall be established in compliance with the then applicable ATA iSpecification 2200 (iSpec 2200), Information Standards for Aviation Maintenance.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 59 14.3.2.4 The Buyer Furnished Equipment data shall be delivered in digital format (SGML) and/or in Portable Document Format (PDF), as agreed between the Buyer and the Seller.
14.3.2.5 All costs related to the delivery to the Seller of the applicable Buyer Furnished Equipment data shall be borne by the Buyer.
14.3.2.6 Notwithstanding sub-Clause 18.6.1 to the Agreement, in the event of the Seller providing directly certain items, which are considered as Buyer Furnished Equipment according to the Specification, the Seller may require the Buyer's assistance to obtain from the Supplier the Technical Data related to such Buyer Furnished Equipment.
14.4 Delivery
14.4.1 The Technical Data are delivered on-line and/or off-line, as set forth in Exhibit "J" hereto.
14.4.2 The Technical Documentation and corresponding revisions that the Seller will supply or cause to be supplied in accordance with the terms of this Clause 14 will be sent to addresses that will be designated by the Buyer, or as otherwise agreed to be delivered on- board an Aircraft upon its Delivery.
14.4.3 Packing and shipment of the Technical Data and their revisions shall be carried out in consideration of the quickest transportation methods. Technical Data provided off-line shall be delivered by the Seller at the Buyer's named place of destination under DAP conditions. The term Delivered At Place (DAP) is defined in the Incoterms 2010 publication issued by the International Chamber of Commerce.
14.4.4 The delivery schedule of the Technical Data shall be phased as mutually agreed to correspond with Aircraft Deliveries. The Buyer agrees to provide forty (40) days notice when requesting a change to the delivery schedule.
14.4.5 It shall be the responsibility of the Buyer or the Operator to coordinate and satisfy local Aviation Authorities' needs for Technical Data. Reasonable quantities of such Technical Data shall be supplied by the Seller at no charge to the Buyer at the Buyer's named place of destination. Notwithstanding the foregoing, and in agreement with the relevant Aviation Authorities, preference shall be given to the on- line access to such Buyer's Technical Data through the Airbus customer portal AirbusWorld.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 60 14.5 Revision Service For each firmly Aircraft covered under this Agreement, revision service for the Technical Data shall be provided to the Buyer or Operator or subsequent operator on a ***. Mandatory changes will be incorporated into the Technical Documentation that is subject to revision as set forth in Exhibit "J" hereof at no charge for as long as one (1) Aircraft is owned by the Buyer. Thereafter revision service shall be provided at the standard conditions set forth in the then current Seller's Customer Services Catalog.
14.6 Service Bulletins (SB) Incorporation During the period of revision service and upon the Buyer's or Operator's request for incorporation, which shall be made within five (5) years after issuance of a Service Bulletin, Seller's Service Bulletin information shall be incorporated into the Technical Data for the Buyer's Aircraft after formal notification by the Buyer or the Operator of its intention to accomplish a Service Bulletin. The split effectivity for the corresponding Service Bulletin shall remain in the Technical Data until notification from the Buyer that embodiment has been completed on all the Buyer's Aircraft. The above is applicable for Technical Data relating to maintenance. For the operational Data only the pre or post Service Bulletin status shall be shown.
14.7 Future Developments The Seller shall continuously monitor technological developments and apply them to data and document production and methods of transmission where beneficial and economical. The Buyer accepts to consider any new development proposed by the Seller for possible implementation.
14.8 Technical Data Familiarization Upon request by the Buyer, the Seller is ready to provide a one (1) week Technical Data familiarization training at the Seller's or at the Buyer's facilities. If such familiarization is conducted at the Buyer's facilities, the Buyer shall reimburse the Seller for all air travel (business class) and living expenses of the representatives of the Seller conducting such familiarization.
14.9 Customer Originated Changes (COC) In the event of the Buyer or Operator wishing to introduce Buyer or Operator originated data (hereinafter "COC Data") into any of the customized Technical Data that are identified as eligible for such incorporation in the Seller's then current Customer Services Catalog, the Buyer shall notify the Seller of such intention. The incorporation of any COC Data shall be performed under the methods and tools for achieving such introduction and the conditions specified in the Seller's then current Customer Services Catalog.
14.10. Performance Engineer's Programs
14.10.1 In addition to the Technical Data provided under Clause 14, the Seller shall provide to the Buyer Software Services which shall consist of the Performance Engineer's Programs (PEP) for the Aircraft type covered under this Agreement. Such PEP is
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 61 composed of software components and databases and its use is subject to the license conditions set forth in Part 1 of Exhibit "N" to the Agreement "End-User License Agreement for Airbus Software".
14.10.2 Use of the PEP shall be limited to one (1) copy to be used on the Buyer´s computers for the purpose of computing performance engineering data. The PEP is intended for use on ground only and shall not be embarked on board of the Aircraft.
14.10.3 The licence to use the PEP shall be granted free of charge for as long as the revisions of the PEP are free of charge in accordance with Clause 14.5. At the end of such period, the yearly revision service for the PEP shall be provided to the Buyer at the standard commercial conditions set forth in the then current Seller's Customer Services Catalog.
14.10.4 With respect to all references herein to the Seller's Customer's Service Catalogue, in the event of a conflict between the terms of this Agreement and the Seller's Customer's Service Catalogue, the terms of this Agreement shall govern.
14.11 AirN@v Family products
14.11.1 The Technical Data listed here below are provided on DVD and include integrated software (hereinafter together referred to as "AirN@v Family").
14.11.2 The AirN@v Family covers several Technical Data domains, reflected by the following AirN@v Family products: - AirN@v / Maintenance,
- AirN@v / Planning,
- AirN@v / Repair,
- AirN@v / Workshop,
- AirN@v / Associated Data,
- AirN@v / Engineering.
14.11.3 The licensing conditions for the use of AirN@v Family integrated software shall be as set forth in Part 1 of Exhibit "N" to the Agreement, "End-User License Agreement for Airbus Software".
14.11.4 The revision service and the license to use AirN@v Family products shall be granted free of charge in accordance with Clause 14.5. At the end of such period, the yearly revision service for AirN@v Family products and the associated license fee shall be provided to the Buyer under the commercial conditions set forth in the Seller's then current Customer Services Catalog.
14.12 On-Line Technical Data
14.12.1 The Technical Data provided on-line shall be made available to the Buyer through the Airbus customer portal AirbusWorld ("AirbusWorld").
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 62 14.12.2 Access to AirbusWorld shall be subject to the "General Terms and Conditions of Access to and Use of AirbusWorld" (hereinafter the "GTC"), as set forth in Part 2 of Exhibit "N" to this Agreement.
14.12.3 The list of the Technical Data available on-line may be extended from time to time. For any Technical Data which is or becomes available on-line, the Seller reserves the right to suppress other formats for the concerned Technical Data.
14.12.4 Access to AirbusWorld shall be granted free of charge for an unlimited number of the Buyer's users (including two (2) Buyer´s Administrators) for the Technical Data related to the Aircraft which shall be operated by the Buyer.
14.12.5 For the sake of clarification, it is hereby specified that Technical Data accessed through AirbusWorld shall remain subject to the conditions of this Clause 14. In addition, should AirbusWorld provide access to Technical Data in software format, the use of such software shall be further subject to the conditions of Part 1 of Exhibit "N" to the Agreement.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 63 14.13 Warranties The Seller warrants that the Technical Data are prepared in accordance with the state of art at the date of their conception. Should any Technical Data prepared by the Seller contain non-conformity or defect, the sole and exclusive liability of the Seller shall be to take all reasonable and proper steps to correct such Technical Data. Notwithstanding the above, no warranties of any kind are given for the COC Data, as set forth in Clause 14.9. THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND/OR ITS SUPPLIERS AND REMEDIES OF THE BUYER SET FORTH IN THIS CLAUSE 14 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND/OR ITS SUPPLIERS AND RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, ITS SUPPLIERS AND/OR THEIR INSURERS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN ANY TECHNICAL DATA DELIVERED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO: ANY WARRANTY AGAINST HIDDEN DEFECTS (GARANTIE DES VICES CACHES); ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS; ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT ARISING FROM THE SELLER'S AND/OR ITS SUPPLIERS' NEGLIGENCE, ACTUAL OR IMPUTED; AND ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART THEREOF OR ANY TECHNICAL DATA DELIVERED HEREUNDER. THE SELLER AND/OR ITS SUPPLIERS SHALL HAVE NO OBLIGATION OR LIABILITY, HOWSOEVER ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NONCONFORMITY OR DEFECT IN ANY TECHNICAL DATA DELIVERED UNDER THIS AGREEMENT. FOR THE PURPOSES OF THIS CLAUSE 14.11.2, "THE SELLER" SHALL INCLUDE THE SELLER, ITS AFFILIATES AND ANY OF THEIR RESPECTIVE INSURERS. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 64 14.14 Proprietary Rights
14.14.1 All proprietary rights, including but not limited to patent, design and copyrights, relating to Technical Data shall remain with the Seller and/or its Affiliates as the case may be.
These proprietary rights shall also apply to any translation into a language or languages or media that may have been performed or caused to be performed by the Buyer.
14.14.2 Whenever this Agreement provides for manufacturing by the Buyer, the consent given by the Seller shall not be construed as express or implicit approval howsoever neither of the Buyer nor of the manufactured products. The supply of the Technical Data shall not be construed as any further right for the Buyer to design or manufacture any Aircraft or part thereof or spare part.
14.15 Confidentiality
14.15.1 This Clause, the Technical Data and the Software Services and their content are designated as confidential. All such Technical Data and Software Services are supplied to the Buyer for the sole use of the Buyer who undertakes not to disclose the contents thereof to any third party without the prior written consent of the Seller save as permitted therein or (i) otherwise pursuant to any government or legal requirement imposed upon the Buyer or (ii) to its Affiliates, agents, employees or attorneys or (iii) to third party maintenance providers selected by the Buyer to perform maintenance services on the Aircraft.
14.15.2 In the case of the Seller having authorized the disclosure to third parties either under this Agreement or by an express prior written authorization, the Buyer shall undertake that such third party agree to be bound by the same conditions and restrictions as the Buyer with respect to the disclosed Technical Data.
14.16 Transferability Without prejudice to the provisions in Clause 19 of the Agreement, the Buyer's rights under this Clause 14 may not be assigned, sold, transferred, novated or otherwise alienated by operation of law or otherwise, without the Seller's prior written consent. Any transfer in violation of this Clause 14.16 shall, as to the particular Aircraft involved, void the rights and warranties of the Buyer under this Clause 14 and any and all other warranties that might arise under or be implied in law.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 65 15 - SELLER REPRESENTATIVES 15.1 Customer Services Representatives The Seller will provide or cause to be provided at no charge to the Buyer's Initial Operators the following services at the Operator's main base or at other locations to be mutually agreed.
15.1.1 The Seller shall provide Customer Services Representatives ("Representatives") acting in an advisory capacity at locations to be mutually agreed for periods to be agreed commencing at or about Delivery of the first Aircraft to be delivered to the Initial Operator of the Aircraft. For clarification, such Representatives will be available to cover initial entry into service assistance to the Buyer's Initial Operators as well as sustaining support services in operation. The actual number of Representatives allocated to such Initial Operator shall be mutually agreed. The Buyer shall give reasonable notice and shall consult in advance with the Seller in respect of its requirements for such Representatives and the locations to which the same are required to be assigned. *** The Seller shall not be obligated to assign more than two (2) Representatives to any Operator simultaneously.
15.1.2 In addition, the Seller has set up a global Technical Services network available for the non-exclusive use by each of the Seller's aircraft operators. Each Operator will have free access to this global network at any time in the course of the Aircraft operation, and in particular to the regional Representatives closest to each Operator's main base after the end of the mission of the Representatives referred to in sub- Clause 15.1.1 above, or to cover for their temporary absence in the course of their mission. A list of the contacts for the global Technical Services network including the regional Representatives will be provided to the Buyer. In the event of a need for Aircraft On Ground ("AOG") technical assistance after the end of the assignment referred to in sub-Clause 15.1.1, the Buyer and/or its Operator shall have non-exclusive access to:
(a) AIRTAC (Airbus Technical AOG Center);
(b) The Seller Representative network closest to the Buyer's or Operator's main base. A list of contacts of the Seller Representatives closest to the Buyer's or Operator's main base shall be provided to the Buyer.
As a matter of reciprocity, the Buyer shall authorize the Representative(s), during his/their assignment to the Buyer or Operator, to provide similar assistance to another operator.
15.1.3 The Seller shall arrange to procure similar services to be given by competent Representatives of the Propulsion Systems Manufacturers and by Vendor Representatives when necessary and applicable.
15.2 Customer and Operator Support Managers
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 66 The Seller will provide one (1) Customer Support Manager based in Toulouse, to liaise between the Seller and the Buyer on product support matters after execution of this Agreement for as long as any of the Aircraft is operated. The Seller shall also arrange for each of the Buyer's Operators to be provided with similar services.
15.3 Buyer's Service
15.3.1 From the date of arrival of the first of the Seller's Representative(s) specified in sub-Clause 15.1.1, the Buyer or its Operator shall provide or shall cause to be provided without charge secretarial assistance, suitable space, office equipment and facilities in or conveniently near the Operator's maintenance facilities. The Buyer or its Operator shall provide or shall cause to be provided telecommunications facilities at the Seller's cost to be invoiced on a monthly basis.
15.3.2 In accordance with the Operator's regulations, the Operator shall provide or shall cause to be provided at no charge to the Seller:
(i) airline tickets in business class confirmed and guaranteed between the locations mentioned above in sub-Clause 15.1 and the international airport nearest Toulouse, France, that is on the Operator's network for the Customer Support Representatives mentioned in sub-Clause 15.1.1. When the use of the Operator's route network is not feasible or practical, the Operator shall reimburse the Seller for business class travel on other airlines; and
(ii) when said Representatives are assigned away from the locations mentioned above in sub-Clause 15.1 at the Operator's request, transportation between the said locations and the place of assignment.
15.3.3 The Buyer, or its Operator as the case may be, will give the Seller all necessary reasonable assistance with general administrative functions specific to the Buyer's or Operator's country and procurement of the documents necessary to live and work there. Failure of the Seller, after diligent efforts, to obtain the necessary documents will relieve the Seller of any obligation to the Buyer under this Clause 15. The Buyer or its Operator shall reimburse to the Seller charges, taxes, duties, imposts or levies of any kind whatsoever, imposed by authorities of the Buyer's country upon: - the entry into or exit from the Buyer's country of the Seller's personnel; - the entry into or the exit from the Buyer's country of the Seller's Representatives and their property; - the entry into or the exit from the Buyer's country of the Seller's property.
15.3.4 Withdrawal of Seller's Representatives
The Seller shall have the right to withdraw its assigned personnel as it sees fit if conditions arise which are in the Seller's opinion dangerous to their safety or health or prevent them from fulfilling their contractual tasks.
15.4 Representatives' Status In providing the above technical service, the Seller's employees, including Representatives and the Customer Support Manager, are deemed to be acting in an advisory capacity only and at no time will they be deemed to be acting, either directly or indirectly, as the Buyer's, or the Operator's employees or agents.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 67 15.4 Temporary Assignment of Representative The Buyer agrees that the Seller will have the right to transfer or recall any Representative on a temporary or permanent basis. The Buyer will receive credit for the man-days during which any Representative is absent from the Buyer's, or Operator's facility pursuant to this sub- Clause 15.4, it being expressly understood by Seller that recall of a Representative shall not relieve Seller of its obligation to provide such representation for the period of time indicated under this Agreement. In the event the initial time period of Seller's obligation to provide a Representative is not fulfilled by Seller, then Seller shall assign a replacement Representative as soon as possible.
15.5 INDEMNITY
15.5.1 SCOPE
IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS CLAUSE 15, THE BUYER AND THE SELLER PROVIDE THE INDEMNITIES SET FORTH IN SUB-CLAUSES 15.5.2 AND 15.5.3.
15.5.2 BUYER'S INDEMNITY
THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER, IT'S AFFILIATES AND THEIR RESPECTIVE SUBCONTRACTORS AND THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, LOSS OF USE, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS)
(I) FOR ALL INJURIES TO AND DEATHS OF PERSONS (EXCEPTING INJURIES TO AND DEATHS OF THE SELLER'S REPRESENTATIVES PROVIDING THE SERVICES UNDER THIS CLAUSE), AND
(II) FOR LOSS OF OR DAMAGE TO PROPERTY (EXCEPTING LOSS OF OR DAMAGE TO PROPERTY OF THE SELLER'S SAID REPRESENTATIVES)
ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS CLAUSE 15. THIS INDEMNITY OF THE BUYER WILL NOT APPLY FOR ANY SUCH LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES TO THE EXTENT ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE SELLER'S SAID REPRESENTATIVES.
15.5.3 SELLER'S INDEMNITY
THE SELLER WILL INDEMNIFY AND HOLD HARMLESS THE BUYER, ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY'S FEES AND DISBURSEMENTS)
(I) FOR INJURIES TO OR DEATHS OF THE SELLER'S SAID REPRESENTATIVES PROVIDING THE SERVICES UNDER THIS CLAUSE,
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 68 (II) FOR LOSS OF OR DAMAGE TO PROPERTY OF THE SELLER'S SAID REPRESENTATIVES, AND
(III) TO THE EXTENT ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE SELLER'S SAID REPRESENTATIVES IN CONNECTION WITH THE SERVICES PROVIDED UNDER THIS CLAUSE.
WITH RESPECT TO SUB-CLAUSES (I) AND (II) OF THE PRECEDING SENTENCE, THE SELLER WILL NOT BE OBLIGATED TO INDEMNIFY OR HOLD HARMLESS THE BUYER TO THE EXTENT THE SELLER'S LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE FROM THE BUYER'S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
15.5.4 CLAIMS IN THE EVENT ANY CLAIM IS MADE OR LAWSUIT IS BROUGHT AGAINST EITHER PARTY (OR ITS RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES) FOR DAMAGES FOR DEATH OR INJURY OR FOR PROPERTY DAMAGE, THE LIABILITY FOR WHICH HAS BEEN ASSUMED BY THE OTHER PARTY PURSUANT TO THIS SUB-CLAUSE 15.5, THE FORMER (INDEMNITEE) WILL PROMPTLY GIVE NOTICE TO THE OTHER PARTY (INDEMNITOR), AND THE INDEMNITOR WILL ASSUME AND CONDUCT THE DEFENSE THEREOF AT ITS SOLE EXPENSE, AND WILL HAVE THE RIGHT TO EFFECT ANY SETTLEMENT THAT IT, IN ITS OPINION, DEEMS PROPER. IN THE EVENT THAT THE INDEMNITOR DOES NOT ASSUME AND CONDUCT THE DEFENSE OF THE CLAIM OR LAWSUIT, THEN THE INDEMNITEE WILL HAVE THE RIGHT TO PROCEED WITH THE DEFENSE OF THE CLAIM OR LAWSUIT AS IT DEEMS APPROPRIATE AND WILL HAVE AN ACTION AGAINST THE INDEMNITOR FOR ANY JUDGMENTS, SETTLEMENTS, COSTS OR EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS) INCURRED IN CONDUCTING SAID DEFENSE. FOR THE PURPOSE OF THIS SUB-CLAUSE 15.5, A CLAIM OR LAWSUIT AGAINST THE MANUFACTURER, IT'S AFFILIATES OR ANY OF THEIR RESPECTIVE SUBCONTRACTORS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES WILL BE DEEMED TO BE A CLAIM OR LAWSUIT AGAINST THE SELLER.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 69 16 - TRAINING 16.1.1. Training Organization The Seller shall supply training and training aids for the Buyer's personnel or the personnel of its Operators in accordance with the provisions set forth in this Clause 16.
16.1.1.1 The Seller shall provide training at its training center in Blagnac, France, and/or in Hamburg, Germany, or shall designate an affiliated training center in Miami, U.S.A., or Beijing, China (individually a "Seller's Training Center" and collectively the "Seller's Training Centers"). Certain training may also be provided by the Seller at one of the Operator's bases, if and when practicable for the Seller, under terms and conditions to be mutually agreed upon. In this event, all additional charges listed in sub-Clause 16.2.2 shall be borne by the Operator. Training courses provided for the Buyer and/or its Operators shall be the Seller's standard courses, as described in the Seller's Customer Services Catalog. The Seller shall be responsible for all training course syllabi, training aids and training equipment necessary for the organization of the training courses. For the avoidance of doubt, for the purpose of performing training, such training equipment does not include aircraft.
16.1.1.2 The training curricula and the training equipment may not be fully customized. However, academic curricula may be modified to include the most significant of the Buyer's Aircraft Specification (to the exclusion of Buyer Furnished Equipment (BFE)) as known at the latest six (6) months prior to the date of the first training course planned for the Buyer and/or its Operator. The equipment used for flight and maintenance personnel shall not be fully customized; however, this equipment shall be configured in order to obtain the relevant Aviation Authority's approvals and to support the Seller's training programs. Training data and documentation for trainees receiving the training at the Seller's Training Centers or Affiliated Training Centers shall be free-of-charge. Training data and documentation shall be marked "FOR TRAINING ONLY" and as such are supplied for the sole and express purpose of training. Training data and documentation shall not be revised.
16.1.1.3 After fulfilling its obligation to provide training courses to the Buyer and/or its Operators when the training courses are performed by the Seller, the Seller shall deliver to the trainees a certificate of completion. The Seller's certificate does not represent authority or qualification by any official Civil Aviation Authorities but may be presented to such officials in order to obtain relevant formal qualification. In the event of the training being provided by a training provider selected by the Seller, the Seller shall cause such training provider to deliver to the trainees a certificate of completion. Such certificate shall not represent authority or qualification by any official Civil Aviation Authorities but may be presented to such officials in order to obtain relevant formal qualification.
16.1.1.4 Training courses provided for the Buyer's personnel or personnel of its Operators shall
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 70 be scheduled according to plans to be mutually agreed upon during a Training Conference to be held no later than nine (9) months prior to Delivery of the first Aircraft.
16.1.1.5 The contractual training courses shall be provided up to one (1) year after Delivery of the last Aircraft ordered under this Agreement. In the event that the Buyer and/or its Operators should use none or only part of the training or training aids to be provided pursuant to this Clause, no compensation or credit of any sort shall be allowed to the Buyer.
16.1.1.6 In the event of the Buyer and/or its Operators deciding to cancel or re-schedule a training course, a minimum advance notice of sixty (60) calendar days shall be required, provided that the Seller shall endeavor in the case of a later cancellation to re-allocate such courses to other customers. If the notification occurs less than sixty (60) but more than forty five (45) calendar days prior to such training, a cancellation fee corresponding to fifty percent (50 %) of such training shall be, as applicable, either deducted from the training allowance defined herein or invoiced at the Seller's then applicable price. If the notification occurs less than forty five (45) calendar days prior to such training, a cancellation fee corresponding to one hundred percent (100 %) of such training shall be, as applicable, either deducted from the training allowance defined herein or invoiced at the Seller's then applicable price.
16.1.2. Prerequisites The Buyer's and/or the Buyer´s Operators shall warrant that trainees have the knowledge and experience specified for each course in the Seller's Customer Services Catalog. It is clearly understood that said training courses are "Transition Training Courses" and not "Initial Training Ab-Initio Courses". Furthermore, the Buyer and/or the Buyer's Operators shall be responsible for the selection of the trainees and for any liability with respect to the entry knowledge level of the trainees. The Buyer and/or the Buyer's Operators shall provide the Seller with an attendance list of the trainees for each course with the validated qualification of each trainee as specified by the Seller and in no event any later than sixty (60) calendar days before the start of the training course. The Buyer and/or its Operators shall return concurrently thereto the completed Airbus Pre-Training Survey, detailing the trainees' associated background. If the Seller determines through the Airbus Pre-Training Survey that a trainee does not match the prerequisites set forth in the Seller's Customer Services Catalog, following consultation with the Buyer and/or its Operators, such trainee shall be withdrawn from the program or directed through a relevant entry level training (ELT) program, which shall be at the Buyer's expense. The Seller reserves the right to check the trainees' proficiency and previous professional experience. The Seller shall in no case warrant or otherwise be held liable for the trainee's performance as a result of any training services thus provided.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 71 Upon the Buyer's or the Operator's request, the Seller may be consulted to orientate the above mentioned trainee(s) through a relevant entry level training program, which shall be at the Buyer and/or its Operator's charge, and, if necessary, to coordinate with competent outside organizations for this purpose. Such consultation should be held during the Training Conference. In the event the Seller should determine that a trainee lacks such entry level, such trainee shall, following consultation with the Buyer and/ or its Operator, be withdrawn from the program and shall then be considered to be at the Operator's disposal.
16.2. Logistics 16.2.1 Trainees 16.2.1.1 The Seller shall provide free local transportation by bus for the Buyer and/or its Operator's trainees to and from designated pick up points and the training center.
16.2.1.2 However, the Buyer and/or its Operators shall indemnify and hold the Seller harmless from and against all liabilities, claims, damages, costs and expenses for any injury to or death of any of the Operator's trainees occasioned during the course of such transportation.
16.2.1.3 Living expenses for the Operator's trainees are to be borne by the Operator. 16.2.1.4 It shall be the responsibility of the Buyer and/or its Operators to make all necessary arrangements relative to authorizations, permits and/or visas necessary for the Buyer and/or its Operators' trainees to attend the training courses to be provided hereunder. Rescheduling or cancellation of courses due to the Operator's failure to obtain any such authorizations, permits and/or visas shall be subject to the provisions of sub-Clause 16.1.1.6.
16.2.2 Seller's Instructors In the event that, at the Buyer's or the Buyer´s Operators request, training is provided by the Seller's instructors at any location other than the Seller's Training Centers, the Operators shall reimburse the Seller for all the reasonable expenses related to the assignment of such instructors and their performance of the duties as aforesaid.
16.2.2.1 Living Expenses Such expenses, covering the entire period from day of secondment to day of return to the Seller's base, shall include but shall not be limited to lodging, food and local transportation to and from the place of lodging and the training course location. The Buyer or its Operators shall reimburse the Seller for such expenses on the basis of a per diem rate corresponding to the current per diem rate used by the Seller for its personnel, as set forth in the Seller's Customer Services Catalog current at the time of the corresponding training or support.
16.2.2.2 Air Travel
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 72 Airline reservation(s) shall be guaranteed and confirmed to the Seller's instructors in business class on the Operator's route network. When the use of the Operator's route network is not feasible or practical, the Operator shall reimburse the Seller for business class travel on other airlines, as such airfares are set forth in the Seller's Customer Services Catalog current at the time of the corresponding training or support. It is understood that transportation for the Seller's instructors includes air travel to and from the Seller's Training Centers and the place of assignment. Training Material The Buyer shall reimburse the Seller the cost of shipment for the training material needed to conduct such courses. Transportation The Buyer and/or its Operators shall be solely liable for any and all delay in the performance of the training outside of the Seller's Training Centers associated with any transportation described in this Clause 16.
16.2.2.3 Indemnities The Buyer and/or its Operators shall be solely liable for any and all delay in the performance of the training outside of the Seller's Training Centers associated with the transportation services described above and shall indemnify for and hold the Seller harmless from such delay and any consequences arising therefrom.
16.2.3 Training Equipment Availability Training equipment necessary for course performance at any course location other than the Seller's training centers or the facilities of the training provider selected by the Seller shall be provided by the Operator in accordance with the Seller's reasonable specifications.
16.3. Training Courses Execution 16.3.1. Flight Crew Transition Course The Seller shall train in a Flight Crew Transition course program, including low visibility operations training, *** The training manual shall be the Airbus Flight Crew Operating Manual, except for base Flight training, for which the Buyer's Operator's customized Flight Crew Operating Manual shall be used. Whenever base flight training is required, the Buyer's delivered Aircraft shall be used for said base flight training, which shall not exceed one (1) session per pilot. When such base flight crew training is performed in BLAGNAC, FRANCE, the Seller shall provide free-of- charge line maintenance, including servicing, preflight checks and changing of minor components, subject to conditions agreed in the present agreement. In the event of it being necessary to ferry the Buyer's delivered Aircraft to the location where the base flight training shall take place, the additional flight time required for the ferry flight to and/or from the base training field shall not be deducted from the base flight training allowance.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 73 However, if the base flight training is performed outside of the zone where the Seller usually performs such training, the ferry flight to the location where the base flight training shall take place shall be performed by a crew composed of the Seller's and/or the Buyer's qualified pilots, in accordance with the Aviation Authorities' regulations related to the place of performance of the base flight training. The Buyer's Operator shall provide mutually agreed spare parts as required to support said Aircraft in-flight training and shall provide public liability insurance in line with sub- Clause 16.6. In all cases, the Buyer or the Operator shall bear all expenses such as fuel, oil and landing fees.
16.3.1.1 Flight Crew Line Initial Operating Experience To assist the Buyer and/or its Operators with initial operating experience after Delivery of the first Aircraft, the Seller shall provide to the Buyer or its Operators *** The Buyer and/or its Operators shall reimburse the expenses for each such instructor in accordance with Clause 16.2.2. Additional pilot instructors can be provided at the Buyer's and/or its Operators´ expense and upon conditions to be mutually agreed upon.
16.3.2 Maintenance Training The Seller shall train free-of-charge the Operator's ground personnel *** Courses shall only be scheduled for a given minimum number of participants as agreed to at the Training Conference. Trainee days are counted as follows:
- for instruction at the Seller's Training Centers: one (1) day of instruction for one (1) trainee equals one (1) trainee day. The number of trainees at the beginning of the course shall be counted as the number of trainees considered to have taken the course.
- for instruction outside of the Seller's Training Centers the calculation of Seller instructor days shall be mutually agreed at the corresponding training conference.
The above allocation of maintenance training trainee days shall be available to the Buyer (and its operators) for any of the maintenance and performance/operations training courses for the relevant Aircraft type available pursuant to the Seller's Customer Services Catalogue.
16.3.3 Supplier and Propulsion System Manufacturer Training Upon the Buyer's and/or its Operators' request, the Seller shall provide to the Buyer and/or its Operators the list of the maintenance and overhaul training courses provided by major Suppliers and the applicable Propulsion Systems Manufacturer on their products.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 74 16.3.4 Cabin Attendants' Familiarization Course The Seller will offer free of charge *** . The instructor cabin attendants' course, when incorporating the features of the Buyer's Aircraft, can be given at the earliest two (2) weeks before the Delivery date of the Buyer's first Aircraft.
16.4. Training Aids and Materials 16.4.1. Training Aids for Trainees at the Training Centers Training documentation (including all printed course materials, manuals and supporting documents as such are listed in the Seller's Customer Services Catalogue) for trainees receiving the instruction referred to above in sub-Clause 16.3 at the Seller's training centers shall be free-of-charge. Training aids shall be "FOR TRAINING ONLY" and as such are supplied for the sole and express purpose of training.
16.5. Training Engineering Support If requested by the Buyer or its Operators and on terms to be agreed upon, the Seller shall assist the Operator with the introduction of training programs at the Operator's training center.
16.6 INDEMNITY AND INSURANCE 16.6.1 SCOPE IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS CLAUSE 16, THE BUYER AND THE SELLER PROVIDE THE INDEMNITIES SET FORTH IN SUBLCLAUSES 16.6.2 AND 16.6.3.
16.6.2 BUYER'S INDEMNITY THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER, IT'S AFFILIATES AND THEIR RESPECTIVE SUBCONTRACTORS AND THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, LOSS OF USE, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS)
(I) FOR ALL INJURIES TO AND DEATHS OF PERSONS (EXCEPTING INJURIES TO AND DEATHS OF THE SELLER'S REPRESENTATIVES PROVIDING THE SERVICES UNDER THIS CLAUSE), AND
(II) FOR LOSS OF OR DAMAGE TO PROPERTY (EXCEPTING LOSS OF OR DAMAGE TO PROPERTY OF THE SELLER'S SAID REPRESENTATIVES)
ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS CLAUSE 16.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 75 THIS INDEMNITY OF THE BUYER WILL NOT APPLY FOR ANY SUCH LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES TO THE EXTENT ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE SELLER'S SAID REPRESENTATIVES.
16.6.3 SELLER'S INDEMNITY THE SELLER WILL INDEMNIFY AND HOLD HARMLESS THE BUYER, ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS ' FEES AND DISBURSEMENTS)
(I) FOR INJURIES TO OR DEATHS OF THE SELLER'S SAID REPRESENTATIVES PROVIDING THE SERVICES UNDER THIS CLAUSE,
(II) FOR LOSS OF OR DAMAGE TO PROPERTY OF THE SELLER'S SAID REPRESENTATIVES, AND
(III) TO THE EXTENT ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE SELLER'S SAID REPRESENTATIVES IN CONNNECTION WITH THE SERVICES PROVIDED UNDER THIS CLAUSE. WITH RESPECT TO SUB-CLAUSES (I) AND (II) OF THE PRECEDING SENTENCE, THE SELLER WILL NOT BE OBLIGATED TO INDEMNIFY OR HOLD HARMLESS THE BUYER TO THE EXTENT THE SELLER'S LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE FROM THE BUYER'S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
16.6.4 CLAIMS IN THE EVENT ANY CLAIM IS MADE OR LAWSUIT IS BROUGHT AGAINST EITHER PARTY (OR ITS RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES) FOR DAMAGES FOR DEATH OR INJURY OR FOR PROPERTY DAMAGE, THE LIABILITY FOR WHICH HAS BEEN ASSUMED BY THE OTHER PARTY PURSUANT TO THIS SUB-CLAUSE 16.6, THE FORMER (INDEMNITEE) WILL PROMPTLY GIVE NOTICE TO THE OTHER PARTY (INDEMNITOR), AND THE INDEMNITOR WILL ASSUME AND CONDUCT THE DEFENSE THEREOF AT ITS SOLE EXPENSE, AND WILL HAVE THE RIGHT TO EFFECT ANY SETTLEMENT THAT IT, IN ITS OPINION, DEEMS PROPER. IN THE EVENT THAT THE INDEMNITOR DOES NOT ASSUME AND CONDUCT THE DEFENSE OF THE CLAIM OR LAWSUIT, THEN THE INDEMNITEE WILL HAVE THE RIGHT TO PROCEED WITH THE DEFENSE OF THE CLAIM OR LAWSUIT AS IT DEEMS APPROPRIATE AND WILL HAVE AN ACTION AGAINST THE INDEMNITOR FOR ANY JUDGMENTS, SETTLEMENTS, COSTS OR EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS) INCURRED IN CONDUCTING SAID DEFENSE. FOR THE PURPOSE OF THIS SUB-CLAUSE 16.6, A CLAIM OR LAWSUIT AGAINST THE MANUFACTURER, IT'S AFFILIATES OR ANY OF THEIR RESPECTIVE SUBCONTRACTORS OR ANY OF THEIR RESPECTIVE
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 76 DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES WILL BE DEEMED TO BE A CLAIM OR LAWSUIT AGAINST THE SELLER.
16.6.5 INSURANCE FOR THE PERIOD OF PERFORMANCE DESCRIBED IN THIS CLAUSE, THE BUYER WILL
(I) INDEMNIFY AND WAIVE ANY RIGHTS OF RECOURSE OR SUBROGATION AGAINST THE SELLER, THE MANUFACTURER AND THEIR RESPECTIVE SUBCONTRACTORS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, EMPLOYEES AND SUBCONTRACTORS IN RESPECT OF ALL RISKS HULL INSURANCE POLICY, AND
(II) EFFECT INSURANCE TO COVER THIRD-PARTY LIABILITY RISKS ARISING DURING SAID PERFORMANCE IN AN AMOUNT SATISFACTORY TO THE SELLER, NAMING THE SELLER AND ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES AS ADDITIONAL INSUREDS.
SUCH INSURANCE WILL CONTAIN A CROSS-LIABILITY CLAUSE AND WILL ALSO CONTAIN A THIRTY (30)-DAY NOTICE-OF-CANCELLATION PROVISION. UPON REQUEST, THE BUYER WILL DELIVER TO THE SELLER A CERTIFICATE OF INSURANCE EVIDENCING THE COVERAGE REQUIRED BY THIS CLAUSE.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 77 17 - VENDORS' PRODUCT SUPPORT 17.1 Vendor Product Support Agreements 17.1.1 The Seller has obtained or will obtain product support agreements transferable to the Buyer and its assigns from Vendors of Seller Furnished Equipment listed in the Specification (as such Specification may be revised prior to Delivery) ("Supplier Product Support Agreements").
17.1.2 These Supplier Product Support Agreements are based on the "World Airlines and Suppliers Guide", are made available to the Buyer through the SPSA Application and include Vendor commitments as contained in the Supplier Product Support Agreements, which include the following provisions:
17.1.2.1 Technical data and manuals required to operate, maintain, service and overhaul the Vendor items. Such technical data and manuals will be prepared in accordance with the applicable provisions of ATA Specifications and in accordance with Clause 14.5 of this Agreement, will include revision services and will be published in the English language. The Seller shall recommend that software data, supplied in the form of an appendix to the Component Maintenance Manual, be provided in compliance with applicable ATA Specifications.
17.1.2.2 Warranties and guarantees including Vendors' standard warranties. In addition, Vendors of landing gear will provide service life policies for landing gear structures.
17.1.2.3 Training to ensure efficient operation, maintenance and overhaul of the Vendors' items for the Operator's instructors, shop and line service personnel.
17.1.2.4 Spares data in compliance with ATA iSpecification 2200, initial provisioning recommendations, spares and logistics service, including routine and emergency deliveries.
17.1.2.5 Technical service to assist the Buyer and Operators with maintenance, overhaul, repair, operation and inspection of Vendor items as well as required tooling and spares provisioning.
17.2 Vendor Compliance The Seller will monitor Vendor compliance with support commitments defined in the Product Support Agreements and will take remedial action together with the Buyer and/or Operators if requested by the Buyer or an Operator.
17.3 Nothing in this Clause 17 will be construed to prevent or limit the Buyer from entering into direct negotiations with a Vendor with respect to different or additional terms and conditions applicable to Vendor items selected by the Buyer to be installed on the Aircraft.
17.4 Familiarization Training Upon the Buyer's request, the Seller shall provide the Buyer with Supplier Product Support Agreements familiarization training at the Seller's facilities in Blagnac,
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 78 France. An on-line training module shall be further available through AirbusWorld, access to which shall be subject to the "General Terms and Conditions of Access to and Use of AirbusWorld" (hereinafter the "GTC"), as set forth in Part 2 of Exhibit "N" to this Agreement.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 79 18 - BUYER FURNISHED EQUIPMENT 18.1 Installation and Delivery 18.1.1 Without additional charge, and in accordance with the Specification, as it may be revised prior to Delivery, the Seller will cause the Manufacturer to provide for the installation of the Buyer Furnished Equipment, provided that such are referred to in the Manufacturer's BFE catalogue of approved suppliers and products (as such may be revised from time to time).
18.1.2 The Seller will cause the Manufacturer to advise the Buyer of the dates by which, in the planned release of engineering for an Aircraft, the Manufacturer reasonably requires a written detailed description of the dimensions and weight of Buyer Furnished Equipment for such Aircraft and information necessary for the installation and operation thereof, and the Buyer will furnish such detailed description and information by the dates so specified. Such dimensions and weights will not thereafter be revised unless mutually agreed and set forth in an SCN.
18.1.3 The Seller will also cause the Manufacturer to furnish in due time to the Buyer a schedule of dates by and locations to which Buyer Furnished Equipment for such Aircraft must be delivered to the Manufacturer to permit installation in and Delivery of such Aircraft in accordance with the Delivery schedule referred to in Clause 9. The Buyer will furnish such equipment to the Manufacturer at such locations by such dates. The Buyer, at no cost to the Seller, will also furnish or cause to be present at the works where such Buyer Furnished Equipment is to be installed, when requested by the Manufacturer, field service representatives to provide the Manufacturer technical advice regarding the installation and calibration of Buyer Furnished Equipment.
18.2 Specification and Airworthiness Approvals The Buyer warrants that all Buyer Furnished Equipment will meet the requirements of the applicable Aircraft Specification, will comply with applicable EASA, FAA and Alternative Airworthiness Authority regulations and will be approved by the EASA, FAA and Alternative Airworthiness Authority, as applicable, for installation and use on an Aircraft at the time of Delivery of such Aircraft. The Seller will bear no expense in connection with adjusting and calibrating Buyer Furnished Equipment to the extent necessary to obtain EASA, FAA and Alternative Airworthiness Authority approval.
18.3 Delay and Nonperformance Any delay or failure in complying with the warranty in the foregoing sub-Clause 18.2, in providing the descriptive information and services mentioned in sub-Clause 18.1 hereof, in furnishing the Buyer Furnished Equipment or in obtaining any required approval of such equipment under the EASA, FAA and Alternative Airworthiness Authority regulations (as such may have been designated by the Buyer) will be the responsibility of the Buyer, to the extent that such delay or failure will in turn,
(i) delay the performance of any act to be performed by or on behalf of the Seller or the Manufacturer, or
(ii) cause the Final Contract Price of the Aircraft to be increased by the amount of the Seller's additional costs, if any, attributable to such delay or failure by the Buyer, including, without limitation, storage, taxes, insurance and costs of
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 80 out-of-sequence installation,
Further, in any such event, the Seller may elect to take any one of the actions set forth below in sub-Clauses 18.3.2 or 18.3.3 or 18.3.4:
18.3.2 The Seller will be entitled to cause the Manufacturer to select, purchase and install the Buyer Furnished Equipment involved, in which event the Final Contract Price of the affected Aircraft will be increased by the purchase price of such Buyer Furnished Equipment (provided such price is consistent with the prices actually paid or agreed to be paid by the Buyer for the originally selected Buyer Furnished Equipment) plus reasonable costs and expenses incurred by the Manufacturer for handling charges, transportation, insurance, packaging and, if so required and not already provided for in the Final Contract Price of such Aircraft, for adjustment and calibration.
18.3.3 If (i) delivery of the Buyer Furnished Equipment is delayed by more than thirty (30) days after the date specified by the Manufacturer for the delivery of such Buyer Furnished Equipment or (ii) the Buyer Furnished Equipment required to obtain certification of the Aircraft in accordance with sub-Clause 2.6 hereof is not approved by EASA, FAA or Alternative Airworthiness Authority within thirty (30) days after the date specified by the Manufacturer for the delivery of such Buyer Furnished Equipment, then, notwithstanding the terms of sub- Clause 2.6, the Seller will be entitled to deliver the affected Aircraft where it is then located with no obligation to install such Buyer Furnished Equipment. Upon such Delivery the Seller will be relieved of all obligations to install such Buyer Furnished Equipment. In the event of such a Buyer Furnished Equipment delay, the Seller shall however use all reasonable efforts to either (i) provide the Buyer with the extent of any industrial flexibility it may have to extend the above mentioned 30 days period in order to accommodate for the later delivery of such Buyer Furnished Equipment, whereupon such 30 days period shall be extended to the new delivery date for such delayed Buyer Furnished Equipment so communicated by the Seller; or (ii) seek to obtain in cooperation with the Buyer an alternate to the required Buyer Furnished Equipment.
18.3.4 If (i) the Buyer Furnished Equipment is delayed by more than thirty (30) days after the date specified by the Manufacturer for the delivery of such Buyer Furnished Equipment or (ii) the Buyer Furnished Equipment is not required for certification of the Aircraft and is not approved by the EASA, FAA or Alternative Airworthiness Authority within thirty (30) days after the date specified by the Manufacturer for the delivery of such Buyer Furnished Equipment, then the Seller will be entitled to deliver the Aircraft with no obligation to install such Buyer Furnished Equipment. The Buyer may also elect to have the Aircraft so delivered, whereupon the Seller will be relieved of all obligations to install such Buyer Furnished Equipment. In the event of such a Buyer Furnished Equipment delay, the Seller shall however use all reasonable efforts to either (i) provide the Buyer with the extent of any industrial flexibility it may have to extend the above mentioned 30 days period in order to accommodate for the later delivery of such Buyer Furnished Equipment, whereupon such 30 days period shall be extended to the new delivery date for such delayed Buyer Furnished Equipment so communicated by the Seller; or (ii) seek to obtain in cooperation with the Buyer an alternate to the required Buyer Furnished Equipment.
18.3.5 In the event that any Aircraft is delivered to the Buyer without Buyer Furnished Equipment installed, pursuant to sub-Clause 18.3.3 or 18.3.4 above, the Seller shall, at the Buyer's option, with respect to such uninstalled Buyer Furnished Equipment, either (i) ship such Buyer Furnished Equipment, when received by the Manufacturer, to a destination designated by the Buyer, at the Buyer's expense, or (ii) if such Buyer
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 81 Furnished Equipment has not yet been shipped to the Manufacturer, direct the Vendor to ship such Buyer Furnished Equipment directly to such destination as will be designated by the Buyer. In addition, the Seller shall cooperate with the Buyer to obtain certification for such any such Aircraft once Buyer has installed Buyer Furnished Equipment following Delivery.
18.3.6 In the event that the delivery of any Buyer Furnished Equipment is delayed, the Seller commits to the Buyer that it shall cooperate in good faith with the Buyer and shall use all reasonable efforts in order to minimize the impact that such BFE delay may have on the Aircraft entry into service with the Buyer's operator. In this respect the Seller shall, in consultation with the Buyer:
(i) offer to the Buyer the benefit of any industrial flexibility that it may have in its industrial sequence in order to accommodate the late BFE delivery.
(ii) assist the Buyer in the procurement of alternative BFE, if such alternative equipment allow a better optimized delivery of the Aircraft
(iii) if the delayed delivery of such BFE is such that installation is to be organised through a post delivery modification, the Seller shall provide the necessary support to the Buyer in order to minimize the cost and duration of such modification. In particular the Seller shall fully support the Buyer in the definition of the necessary technical solutions and the certification process that may be required for such installation.
18.3.7 Any Buyer Furnished Equipment installed on an Aircraft and subsequently removed, as a result of action or inaction by the Buyer, will be removed at the Buyer's expense.
18.4 Shipping Addresses and Taxes The BFE shall be imported into FRANCE or into GERMANY by the Buyer under a suspensive customs system ("Régime de l'entrepôt douanier ou régime de perfectionnement actif " or "Zollverschluss") without application of any French or German tax or customs duty, and shall be Delivered At Place (DAP) according to the Incoterms, to the following shipping addresses: AIRBUS OPERATIONS S.A.S.
316 Route de Bayonne
31300 TOULOUSE
FRANCE or AIRBUS OPERATIONS GmbH
Kreetslag 10
21129 HAMBURG
GERMANY or such other location as may be specified by the Seller.
18.5 Risk of Loss
Title to and risk of loss of Buyer Furnished Equipment will at all times remain with the
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 82 Buyer, except that when Buyer Furnished Equipment is in the possession of the Seller, the Seller will assume the risk of loss therefore, but will not be liable for loss of use.
18.6 ***
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 83 19 - ASSIGNMENT 19.1 Successors and Assigns Subject to the provisions of this sub-Clause 19.1, this Agreement is personal to the parties hereto, and (save as expressly provided in this Clause 19) this Agreement shall not be assigned in whole or in part by either party without the prior written consent of the other party. Notwithstanding anything herein to the contrary, the Seller may at any time, without the Buyer's consent, assign any of its rights to receive money, and either party may delegate any of its duties to effect sale, purchase and Delivery of any Aircraft, or any of its responsibilities, duties or obligations to perform any other obligations hereunder to: (i) in the case of the Seller or to any Affiliate of the Seller and (ii) in the case of the Buyer, to an Affiliate of the Buyer, provided that such Affiliate is not affiliated with an aircraft or engine manufacturer, airline, leasing company (other than Buyer) or other entity or person which the Seller, in its reasonable opinion, considers that it has a commercial conflict with the Seller's business interests, or is not a party to whom the Seller is prohibited by law or any governmental regulation of any of the French Republic, the Federal Republic of Germany, Spain, the United Kingdom or the United States of America from selling the Aircraft or carrying its obligations hereunder).
19.2 Seller's Designations The Seller may at any time by written notice to the Buyer designate particular facilities or particular personnel of the Seller or any Affiliate of the Seller at which or by whom the services to be performed under this Agreement shall be performed. The Seller may also any Affiliate of the Seller as the party responsible on behalf of the Seller for providing to the Buyer all or any of the services described in this Agreement.
19.3 Notwithstanding any assignment or designation under sub-Clause 19.1 or 19.2 above, the assign or or designating party shall not be relieved of any of its obligations hereunder. Any assignment, novation or designation under sub-Clause 19.1 or 19.2 shall be subject to all of the following conditions:
(1) That the assignee, designee or novatee agrees to be bound by all relevant terms, conditions and limitations of this Agreement, and
(2) That no assignment, transfer or novation pursuant to sub-Clause 19.1 or 19.2 shall subject the other party to any liability to which it would not otherwise be subject hereunder or modify in any way the other party's contractual rights hereunder or require the Seller to divest itself of title to or possession of such Aircraft until delivery and payment therefore as provided in this Agreement, and
(3) That any assignor shall nonetheless remain liable to the other party in respect of all the rights and obligations under this Agreement and shall guarantee the performance by the assignee of all duties and obligations related to the assigned rights as well as to the assignment itself including but not limited to conditions under this sub-Clause 19.3, and
(4) That the assignor or novator shall indemnify and hold harmless the other party against any increased risks, liabilities, costs and expenses resulting from the assignment or novation, and
(5) No further assignment or novation is permitted except in accordance with the
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 84 foregoing provisions of this sub-Clause.
The parties agree however that with respect to assignments or designations by the Seller pursuant to sub-Clauses 19.1 and/or 19.2 hereof, the party responsible for the obligations of the assignor or novator pursuant to sub-paragraphs (3) and (4) above shall be the Seller.
19.4 Assignment in Case of Lease In the event of the lease of any Aircraft by the Buyer following delivery of such Aircraft to the Buyer, and subject to the consent of the Seller, which consent shall not be unreasonably denied, the Buyer's rights and obligations with respect to such Aircraft under Clauses 12 and 13 of this Agreement and any allocations of field assistance, training and training aids under Clauses 15 and 16 and of manuals and Technical Documentation under Clause 14 of this Agreement which are specific to an Aircraft may be transferred (subject to prior consultation with the Seller on the nature of the training and training aids to be transferred under Clauses 15 and 16) to the benefit of such lessee. The Buyer shall furnish to the Seller a true copy of the corresponding agreement with the lessee (omitting if the Buyer so chooses the commercial details of such lease) and an execution copy of an assignment of such rights clearly stating that the lessee acknowledges that it is bound by and will comply with all applicable terms, conditions and limitations under Clauses 12, 13, 14, 15, and 16 of this Agreement. Any assignment or novation under Clause 19.4 shall be subject to all of the following conditions:
(1) That the assignee or novatee agrees in writing, in a form satisfactory to the Seller, to be bound by all relevant terms, conditions and limitations of this Agreement, and
(2) That no assignment, transfer or novation by the Buyer pursuant to Clause 19.4 shall subject the Seller to any liability to which it would not otherwise be subject hereunder or modify in any way the Seller's contractual rights hereunder or require the Seller to divest itself of title to or possession of such Aircraft until delivery and payment therefore as provided in this Agreement, and
(3) No further assignment or novation is permitted except in accordance with the foregoing provisions of this sub-Clause.
Provided that the above conditions are met, the Buyer shall be released from the obligations and liabilities of the Buyer so assumed by the Buyer's assignee.
19.5 Assignment for the purposes of financing In order to facilitate the arrangement by the Buyer for the purposes of structuring the financing of the Aircraft, the Buyer may request the consent of the Seller to the assignment to a financing vehicle company of the right to take title and to certain warranty rights in relation with an Aircraft, in which case, subject to the provisions of sub-Clause 19.3, and to receipt of the Final Contract Price, the Seller's consent shall not be unreasonably withheld.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 85 20 - DATA RETRIEVAL On the Seller's reasonable request, the Buyer will make reasonable efforts to ensure that its Operators provide the Seller with all the necessary data, as customarily compiled by such operators and pertaining to the operation of the Aircraft, to assist the Seller in making an efficient and coordinated survey of all reliability, maintenance, operational and cost data with a view to improving the safety, availability and operational costs of the Aircraft.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 86 21 - TERMINATION FOR CERTAIN EVENTS 21.1 Any of the following will be considered a material breach of the indicated party's obligations under this Agreement ("Material Breach"):
(1) The Buyer or the Seller files a voluntary petition in bankruptcy.
(2) The Buyer or the Seller commences any case, proceeding or other action with respect to the Buyer or the Seller in any jurisdiction relating to bankruptcy, insolvency, reorganization or relief from debtors or seeking a reorganization, arrangement, winding-up, liquidation, dissolution or other relief with respect to its debts.
(3) An action is commenced by the Buyer or the Seller seeking the appointment of a receiver, trustee, custodian or other similar official for the Buyer or the Seller for all or substantially all of its assets, or the Buyer or the Seller makes a general assignment for the benefit of its creditors.
(4) An action is commenced against the Buyer or the Seller seeking issuance of a warrant of attachment, execution, distraint or similar process against substantially all of its assets.
(5) The Buyer or the Seller becomes the object of any proceeding or action of the type described in (2), (3) or (4) above and, if involuntary, such action or proceeding remains undismissed within ninety (90) days.
(6) The Buyer or the Seller is unable to pay its debts as they come due.
(7) There is a liquidation, winding up or analogous event with respect to the Buyer or the Seller.
(8) Within ten (10) business days following its due date, the Buyer fails to make any Predelivery Payment required to be made pursuant to sub-Clause 6.2 of this Agreement or fails to make payment of all or part of the Final Contract Price required to be made pursuant to sub-Clause 6.4 of this Agreement.
(9) The Buyer will default in its obligation to take Delivery of an Aircraft as provided in this Agreement, which default is continuing for a period of over thirty (30) days following the date Delivery was tendered, and provided the Seller has complied with all material conditions for Delivery set forth in this Agreement.
21.2 In the event of any Material Breach by the Buyer, the Seller will at its option have the right to resort to any remedy under applicable law, including, without limitation, the right by written notice, effective immediately, to (i) suspend its performance under the Agreement, (ii) reschedule the Delivery date for the Aircraft affected by such default or for other Goods and Services, (iii) terminate this Agreement with respect to any or all Aircraft, services, data and other items undelivered or unfurnished on the effective date of such termination, (iv) debit and apply, in whole or in part, the unused amount of any credit made available to the Buyer by the Seller against any unpaid amount due by the Buyer to the Seller and (v) retain, as part of the damages for breach and not as a penalty, an amount equal to all Predelivery Payments and all other
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 87 payments made theretofore under this Agreement, to the full extent of the Seller's losses and damages incurred in connection with the Aircraft, services, data and other items covered by such termination.
21.3 ***
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 88 22 - MISCELLANEOUS PROVISIONS 22.1 Notices All notices and requests required or authorized hereunder will be given in writing either by personal delivery to a responsible officer of the party to whom the same is given or by commercial courier, certified air mail (return receipt requested), facsimile or other electronic transmission at the addresses and numbers set forth below. The date upon which any such notice or request is so personally delivered, or if such notice or request is given by commercial courier, certified air mail, facsimile or other electronic transmission, the date upon which sent, will be deemed to be the effective date of such notice or request. The Seller will be addressed at: AIRBUS
1, rond-point Maurice Bellonte
31707 BLAGNAC FRANCE
Attention: VP Contracts
Telephone: ***
Facsimile: *** The Buyer will be addressed at: C.I.T. LEASING CORPORATION
11 West 42nd Street
12th floor
New York, New York 10036
USA
Attention: Chief Counsel, Transportation Finance
Telephone: ***
Facsimile: ***
From time to time, the party receiving the notice or request may designate another address or another person.
22.2 Waiver The failure of either party to enforce at any time any of the provisions of this Agreement, to exercise any right herein provided or to require at any time performance by the other party of any of the provisions hereof will in no way be construed to be a present or future waiver of such provisions nor in any way to affect the validity of this Agreement or any part hereof or the right of the other party thereafter to enforce each and every such provision. The express waiver by either party of any provision, condition or requirement of this Agreement will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 89 22.3 GOVERNING LAW AND JURISDICTION THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE PARTIES HEREBY ALSO AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS TRANSACTION. EACH OF THE SELLER AND BUYER (I) IRREVOCABLY SUBMITS ITSELF TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND (TO THE EXTENT PERMITTED BY APPLICABLE LAW) TO THE NON- EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT, THE SUBJECT MATTER HEREOF OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY BROUGHT BY ANY PARTY OR PARTIES HERETO, AND (II) HEREBY WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH SUIT, ANY DEFENSE OR OTHERWISE, IN ANY SUIT, ACTION OR PROCEEDING, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY DEFENSE BASED ON SOVEREIGN OR OTHER IMMUNITY OR THAT THE SUIT, ACTION OR PROCEEDING WHICH IS REFERRED TO IN CLAUSE (I) ABOVE IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY MAY NOT BE ENFORCED IN ANY OF THESE COURTS. THE BUYER AND THE SELLER EACH HEREBY GENERALLY CONSENTS TO SERVICE OF PROCESS BY REGISTERED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS FOR NOTICE UNDER THIS AGREEMENT, SUCH SERVICE OF PROCESS TO BE EFFECTIVE UPON ACKNOWLEDGEMENT OF RECEIPT OF SUCH REGISTERED MAIL. THE FOREGOING, HOWEVER, SHALL NOT LIMIT THE RIGHT OF SUCH PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY LEGAL ACTION OR PROCEEDING OR TO OBTAIN EXECUTION OF JUDGEMENT IN ANY COMPETENT JURISDICTION.
22.4 Confidentiality The parties (which for this purpose will include their employees, agents and advisors) will maintain the terms and conditions of this Agreement and any reports or other data furnished hereunder (collectively, "Information") strictly confidential and will not, without the prior written consent of the other party, disclose such Information to any other person or entity; provided that the Seller and the Buyer may, without the consent of the other party, disclose the Information in any of the following situations:
(a) to directors, officers, employees and permitted assignees of the Seller and the Buyer; or
(b) to auditors, accountants or legal advisors of the Seller, the Buyer or their respective permitted assignees; or
(c) to such other parties as may be required by law, by government regulation or order (including, without limitation, any regulation or order of a bank
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 90 regulatory agency), by subpoena or by any other legal process. In the event that a disclosure becomes necessary, as provided in this sub-Clause (c), the Buyer shall consult and cooperate with the Seller to limit the scope and form of such disclosure to the extent permissible and will make such applications as will be necessary to implement the foregoing.
Notwithstanding any of the foregoing, Information will not be considered confidential and the Seller and the Buyer and their respective permitted assignees may disclose any item of Information without restriction in any of the following circumstances: if such item:
(i) is publicly available (either to the general public or to any relevant trade or industry) prior to either party's receipt of it from the other party hereto;
(ii) is thereafter made publicly available (either to the general public or to any relevant trade or industry) by another party hereto or by a third party which is entitled to make such item publicly available;
(iii) becomes available to either party hereto on a non-confidential basis from a source which has represented to such party that such source is entitled to disclose it.
With respect to any public disclosure or filing containing Information, the Buyer agrees to submit to the Seller a copy of the proposed document to be filed or disclosed and will give the Seller a reasonable period of time in which to review the said document Neither the Seller nor the Buyer shall issue any press release or other public statement of any kind regarding the transactions described and/ or contemplated in this Agreement without the express written consent of the other party. The provisions of this sub-Clause 22.4 will survive any termination of this Agreement.
22.5 Severability In the event that any provision of this Agreement should for any reason be held to be without effect, the remainder of this Agreement will remain in full force and effect. To the extent permitted by applicable law, each party hereto hereby waives any provision of law which renders any provision of this Agreement prohibited or unenforceable in any respect.
22.6 Alterations to Contract This Agreement, including its Exhibits, Appendixes and Letter Agreements, contains the entire agreement between the parties with respect to the subject matter hereof and thereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written (including, without limitation the Memorandum of Understanding entered into between the Seller and Buyer on June 21st, 2011) between the Seller and the Buyer. This Agreement will not be varied except by an instrument in writing of even date herewith or subsequent hereto executed by both parties or by their fully authorized representatives.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 91 22.7 Inconsistencies In the event of any inconsistency between the terms of this Agreement and the terms contained in any Exhibit, Appendix or Letter Agreement attached to this Agreement, in each such case the terms of such Exhibit, Appendix or Letter Agreement will prevail over the terms of this Agreement. For the purpose of this sub-Clause 22.7, the term Agreement will not include any Appendix, Exhibit or Letter Agreement hereto.
22.8 Language All correspondence, documents and any other written matters in connection with this Agreement will be in English.
22.9 Headings All headings in this Agreement are for convenience of reference only and do not constitute a part of this Agreement.
22.10 Counterparts This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered will be an original, but all such counterparts will together constitute but one and the same instrument.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 92 IN WITNESS WHEREOF, these presents were entered into as of the day and year first above written. AIRBUS S.A.S
By:
Title:
C.I.T. LEASING CORPORATION
By:
Title:
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement July 2011 93 EXHIBIT A E X H I B I T A S P E C I F I C A T I O N The A319-100 Standard Specification is contained in a separate folder. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement Exhibit A – July 2011 Page 1/1 EXHIBIT B EXHIBIT " B " CHANGE ORDERS TO A319-100 TO STANDARD SPECIFICATION (SCNs)
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit B July 2011 1 ***
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit B July 2011 2 C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit B July 2011 3 C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit B July 2011 4 C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit B July 2011 5 C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit B July 2011 6 EXHIBIT C E X H I B I T C S P E C I F I C A T I O N The A320-200 Standard Specification is contained in a separate folder. C.I.T. Leasing Corporation A320 NEOFamily Purchase Agreement - Exhibit C - July 2011-Page 1/1 EXHIBIT D EXHIBIT " D " CHANGE ORDERS TO A320-200 TO STANDARD SPECIFICATION (SCNs) C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit D July 2011 1 EXHIBIT D ***
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit D July 2011 2 EXHIBIT D
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit D July 2011 3 EXHIBIT D
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit D July 2011 4 EXHIBIT D
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit D July 2011 5 EXHIBIT D
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit D July 2011 6 EXHIBIT E E X H I B I T E S P E C I F I C A T I O N The A321-200 Standard Specification is contained in a separate folder. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit E - July 2011 Page 1/1 EXHIBIT F EXHIBIT " F " CHANGE ORDERS TO A321-200 TO STANDARD SPECIFICATION (SCNs) C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit F July 2011 1 EXHIBIT F *** C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit F July 2011 2 EXHIBIT F
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit F July 2011 3 EXHIBIT F
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit F July 2011 4 EXHIBIT F
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit F July 2011 5 EXHIBIT F
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit F July 2011 6 EXHIBIT G E X H I B I T G Exhibit G-1: Form of a Specification Change Notice Exhibit G-2: Form of a Manufacturer's Specification Change Notice C.I.T. Leasing Corporation A320 NEOFamily Purchase Agreement - Exhibit G July 2011 Page 1
EXHIBIT G-1
For
SCN Number SPECIFICATION CHANGE NOTICE Issue Dated (SCN) Page Title :
Description :
Remarks / References
Specification changed by this SCN
This SCN requires prior or concurrent acceptance of the following SCN (s): Price per aircraft
US DOLLARS: AT DELIVERY CONDITIONS:
This change will be effective on AIRCRAFT N° and subsequent.
Provided approval is received by
Buyer approval Seller approval
By : By : Date : Date :
C.I.T. Leasing Corporation A320 NEOFamily Purchase Agreement - Exhibit G July 2011 Page 2 EXHIBIT G-1
For
SCN Number SPECIFICATION CHANGE NOTICE Issue Dated (SCN) Page Specification repercussion: After contractual agreement with respect to weight, performance, delivery, etc, the indicated part of the specification wording will read as follows:
C.I.T. Leasing Corporation A320 NEOFamily Purchase Agreement - Exhibit G July 2011 Page 3 EXHIBIT G-1
For
SCN Number SPECIFICATION CHANGE NOTICE Issue Dated (SCN) Page Scope of change (FOR INFORMATION ONLY)
C.I.T. Leasing Corporation A320 NEOFamily Purchase Agreement - Exhibit G July 2011 Page 4 EXHIBIT G-2
For
MANUFACTURER'S SPECIFICATION MSCN Number CHANGE NOTICE Issue Dated (MSCN) Page Title :
Description :
Effect on weight :
• Manufacturer's Weight Empty change : • Operational Weight Empty change : • Allowable Payload change :
Remarks / References
Specification changed by this MSCN
Price per aircraft
US DOLLARS: AT DELIVERY CONDITIONS:
This change will be effective on AIRCRAFT N° and subsequent.
Provided MSCN is not rejected by
Buyer approval Seller approval
By : By : Date : Date :
STD – Form of a MSCN Draft 2.0 dated May 2011 Exhibit G - Page 5 EXHIBIT G-2
For
MANUFACTURER'S SPECIFICATION MSCN Number CHANGE NOTICE Issue Dated (MSCN) Page Specification repercussion: After contractual agreement with respect to weight, performance, delivery, etc, the indicated part of the specification wording will read as follows:
STD – Form of a MSCN Draft 2.0 dated May 2011 Exhibit G - Page 6 EXHIBIT G-2
For
MANUFACTURER'S SPECIFICATION MSCN Number CHANGE NOTICE Issue Dated (MSCN) Page Scope of change (FOR INFORMATION ONLY)
STD – Form of a MSCN Draft 2.0 dated May 2011 Exhibit G - Page 7 EXHIBIT H EXHIBIT H S E R V I C E L I F E P O L I C Y L I S T O F I T E M S C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit H July 2011 1 EXHIBIT H SELLER SERVICE LIFE POLICY 1 The Items covered by the Service Life Policy pursuant to Clause 12.2 are those Seller Items of primary and auxiliary structure described hereunder.
2 WINGS - CENTER AND OUTER WING BOX (LEFT AND RIGHT)
2.1 Wing Structure
2.1.1 Spars
2.1.2 Ribs and stringers inside the wing box
2.1.3 Upper and lower wing skin panels of the wing box
2.2 Fittings
2.2.1 Support structure and attachment fittings for the flap structure
2.2.2 Support structure and attachment fitting for the engine pylons
2.2.3 Support structure and attachment fitting for the main landing gear
2.2.4 Support structure and attachment fitting for the center wing box
2.3 Auxiliary Support Structure
2.3.1 For the slats:
2.3.1.1 Ribs supporting the track rollers on wing box structure
2.3.1.2 Ribs supporting the actuators on wing box structure
2.3.2 For the ailerons:
2.3.2.1 Hinge brackets and ribs on wing box rear spar or shroud box
2.3.2.2 Actuator fittings on wing box rear spar or shroud box
2.3.3 For airbrakes, spoilers, lift dumpers:
2.3.3.1 Hinge brackets and ribs on wing box rear spar or shroud box
2.3.3.2 Actuator fittings on wing box rear spar or shroud box C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit H July 2011 2 EXHIBIT H 2.4 Pylon
2.4.1 For the Pylon Main Structural Box
2.4.1.1 Spars
2.4.1.2 Ribs
2.4.1.3 Skin, doublers and stiffeners
2.4.1.4 Support structure and attachment fitting for engine supports
3 FUSELAGE
3.1 Fuselage structure
3.1.1 Fore and aft bulkheads
3.1.2 Pressurized floors and bulkheads surrounding the main and nose gear wheel well and center wing box
3.1.3 Skins with doublers, stringers and frames from the forward pressure bulkheads to the frame supporting the rear attachment of horizontal stabilizer
3.1.4 Window and windscreen attachment structure but excluding transparencies
3.1.5 Passenger and cargo doors internal structure
3.1.6 Sills, excluding scuff plates, and upper beams surrounding passenger and cargo door apertures
3.1.7 Cockpit floor structure and passenger cabin floor beams excluding floor panels and seat rails
3.1.8 Keel beam structure
3.2 Fittings
3.2.1 Landing gear support structure and attachment fitting
3.2.2 Support structure and attachment fittings for the vertical and horizontal stabilizers
3.2.3 Support structure and attachment fitting for the APU
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit H July 2011 3 EXHIBIT H 4 STABILIZERS
4.1 Horizontal Stabilizer Main Structural Box
4.1.1 Spars
4.1.2 Ribs
4.1.3 Upper and lower skins and stringers
4.1.4 Support structure and attachment fitting to fuselage and trim screw actuator
4.1.5 Elevator support structure
4.1.5.1 Hinge bracket
4.1.5.2 Servocontrol attachment brackets
4.2 Vertical Stabilizer Main Structural Box
4.2.1 Spars
4.2.2 Ribs
4.2.3 Skins and stringers
4.2.4 Support structure and attachment fitting to fuselage
4.2.5 Rudder support structure
4.2.5.1 Hinge brackets
4.2.5.2 Servocontrol attachment brackets
5 EXCLUSIONS
Bearing and roller assemblies, bearing surfaces, bushings, fittings other than those listed above, access and inspection doors, including manhole doors, latching mechanisms, all system components, commercial interior parts, insulation and related installation and connecting devices are excluded from this Seller Service Life Policy.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit H July 2011 4 EXHIBIT I CERTIFICATE OF ACCEPTANCE In accordance with the terms of the A320 NEO Family Purchase Agreement dated [ ] and made between C.I.T. Leasing Corporation ("CIT") and Airbus S.A.S. as amended and supplemented from time to time (the "Purchase Agreement"), the technical acceptance tests relating to one Airbus A3 [ ]-[ ] aircraft, bearing manufacturer's serial number [ ], and registration mark [ ](the "Aircraft") have taken place in [Blagnac/Hamburg] on the day [ ] of [ ]. In view of said tests having been carried out with satisfactory results, [ Airline ] hereby approves the Aircraft as being in conformity with the provisions of the Purchase Agreement and accepts the Aircraft for delivery in accordance with the provisions of the Purchase Agreement. Such acceptance shall not impair the rights that may be derived from the warranties relating to the Aircraft set forth in the Purchase Agreement. Any right at law or otherwise to revoke this acceptance of the Aircraft is hereby irrevocably waived. IN WITNESS WHEREOF, [ ] has caused this instrument to be executed by its duly authorised representative this _____ day of [ ], [ ] in [Blagnac/Hamburg]. C.I.T Leasing Corporation
Name:
Title:
Signature:
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit I July 2011 1 EXHIBIT J EXHIBIT J TECHNICAL DATA INDEX
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit J July 2011 1 EXHIBIT J TECHNICAL DATA INDEX Where applicable data will be established in general compliance with ATA 100 Information Standards for Aviation Maintenance, and the applicable provisions for digital standard of ATA Specification 2200 (iSpec2200). The following index identifies the Technical Data provided in support of the Aircraft. The explanation of the table is as follows:
NOMENCLATURE Self-explanatory.
ABBREVIATED DESIGNATION (Abbr) Self-explanatory. AVAILABILITY (Avail)
Technical Data can be made available : • ON-LINE (ON) through the relevant service on AirbusWorld,
and / or
• OFF-LINE (OFF) through the most suitable means applicable to the size of the concerned document (e.g CD or DVD). FORMAT (Form)
Following Technical Data formats may be used: • SGML - Standard Generalized Mark-up Language, which allows further data processing by the Buyer.
• XML – Extensible Mark-up Language, evolution of the SGML text format to cope with WEB technology requirements.
• XML is used for data processing. Processed data shall be consulted through the e-doc Viewer FOCT – Flight Operations Consultation Tool.
• XML data may be customized using Airbus customization tools (Flight Operations Documentation Manager, ADOC) or the Buyer's own XML based editing tools.
• CGM – Computer Graphics Metafile, format of the interactive graphics associated with the and /or SGML text file delivery.
• PDF (PDF) - Portable Document Format allowing data consultation.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit J July 2011 2 EXHIBIT J • Advanced Consultation Tool - refers to Technical Data consultation application that offers advanced consultation & navigation functionality compared to PDF. Both browser software & Technical Data are packaged together.
• P1 / P2 - refers to manuals printed on one side or both sides of the sheet.
• CD-P - refers to CD-Rom including Portable Document Format (PDF) Data.
• CD-XML – Refers to CD-Rom including XML data TYPE C CUSTOMIZED. Refers to manuals that are applicable to an individual Airbus customer/operator fleet or aircraft.
G GENERIC. Refers to manuals that are applicable for all Airbus aircraft types/models/series.
E ENVELOPE. Refers to manuals that are applicable to a whole group of Airbus customers for a specific aircraft type/model/series.
QUANTITY (Qty) Self-explanatory for physical media.
DELIVERY (Deliv) Delivery refers to scheduled delivery dates and is expressed in either the number of corresponding days prior to first Aircraft delivery, or nil (0) referring to the Delivery Date of corresponding Aircraft. The number of days indicated shall be rounded up to the next regular revision release date. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit J July 2011 3 EXHIBIT J OPERATIONAL MANUALS AND DATA
NOMENCLATURE Abbr Avail Form Type Qty Deliv Comments
ON XML C N/A 90 Flight Crew Operating Manual FCOM OFF CD-XML C 1 90
ON XML C N/A 90 FCTM is a supplement to FCOM, a "Pilot's guide" for use in Flight Crew Training Manual FCTM OFF CD-XML C 1 90 training and in operations
LR Aircraft: Basic for A340-500/-600 aircraft ON XML C N/A 90 A330-200/A340-300 : only for aircraft equipped with enhanced cabin (Mod 48819) Cabin Crew Operating Manual CCOM SA Aircraft: Basic for A318 and for all A319/A320/A321 equipped with new CIDS /FAP OFF CD-XML C 1 90 CCOM not available for aircraft with old CIDS re-installed (A319 Mod 34898, A320 Mod 34856, A321 Mod 34997 )
ON XML C N/A 0
Flight Manual FM OFF CD-XML C 1 0
*PDF secure format integrated in the FOCT viewer, used for OFF PDF C * 0 loading on board aircraft EFB, in agreement with Airworthiness Authorities. SA = Single Aisle: A318/A319/A320/A321 / LR = Long Range: A330/A340 C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit J July 2011 4 EXHIBIT J OPERATIONAL MANUALS AND DATA
NOMENCLATURE Abbr Avail Form Type Qty Deliv Comments
ON XML C N/A 180 Master Minimum Equipment List MMEL OFF CD-XML C 1 180
ON XML C N/A 90 Quick Reference Handbook QRH OFF CD-XML C 1 90
Transferred to the Buyer by electronic mail (MS Word or PDF Electronic Trim Sheet TS OFF C 1 0 or TIFF). format Note: additional document provided by the Seller : IATA Airport Handing Manual / AHM sections 515, 516, 560.
ON XML C N/A 0 Weight and Balance Manual WBM OFF CD-XML C 1 0
Performanc ON Computatio C N/A 90 PEP Tool A collection of aircraft performance software tools in a common Performance Engineer's Programs Performanc interface. OFF Computatio C 1 90 Tool on CD
Performance Programs Manual PPM OFF CD-P C 1 90 Explains how to use the PEP & contains specific data for engineers, which are not contained in the FCOM
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit J July 2011 5 EXHIBIT J MAINTENANCE AND ASSOCIATED MANUALS
NOMENCLATURE Abbr Avail Form Type Qty Deliv Comments
AirN@v / Maintenance , including : Advanced Aircraft Maintenance Manual - AMM ON Consultatio C N/A 90 Illustrated Parts Catalog (Airframe)- Tool IPC Illustrated Parts Catalog ( Powerplant )-
PIPC* AirN@v / Recommended basic delivery quantity Trouble Shooting Manual - TSM Maintenance *PIPC is integrated in the SA aircraft IPC for IAE V2500 A1/A3 Aircraft Schematics Manual - ASM Advanced Engines and in the LR A340-500/-600 aircraft IPC for RR Trent 500 Aircraft Wiring Lists - AWL OFF Consultatio C 20 90 Engines. Aircraft Wiring Manual- AWM Tool on DVD For other aircraft and engine types, to be supplied by Propulsion Electrical Standard Practices Manual- Systems Manufacturer concurrently with the Airframe IPC. ESPM AirN@v / Associated Data Advanced Consumable Material List – CML ON Consultation G N/A 360 Standards Manual - SM AirN@v / Tool * Including Tool and Equipment Manual / Index & SupportEquipment Summary data Electrical Standard Practices Manual – Associated Advanced ESPM Data OFF Consultatio G 20 360 Tool and Equipment Manual – TEM (*) Tool on DVD
Technical Follow-up TFU ON PDF E 20 90 TFU for trouble shooting & maintenance, to be used with AirN@v
ON PDF C N/A 90 * PDF will be discontinued in 2010 after implementation of the AirN@v / Maintenance Technical Data upgrade programme OFF CD-P C * 90 Aircraft Maintenance Manual AMM Available from the Technical Data Download Service on ON SGML C N/A 90 AirbusWorld (Graphics in CGM, compliant with iSpec 2200 )
OFF SGML C 1 90 Effective CD delivery will only take place at the time of explicit request from the Buyer
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit J July 2011 6 EXHIBIT J MAINTENANCE AND ASSOCIATED MANUALS
NOMENCLATURE Abbr Avail Form Type Qty Deliv Comments
ON PDF C N/A 90 * PDF will be discontinued in 2010 after implementation of the OFF CD-P C * 90 AirN@v / Maintenance Technical Data upgrade programme Aircraft Schematics Manual ASM Available from the Technical Data Download Service on ON SGML C N/A 90 AirbusWorld (Graphics in CGM, compliant with iSpec 2200 )
OFF SGML C 1 90 Effective CD delivery will only take place at the time of explicit request from the Buyer
ON PDF C N/A 90 * PDF will be discontinued in 2010 after implementation of the OFF CD-P C * 90 AirN@v / Maintenance Technical Data upgradeprogramme.
Aircraft Wiring List AWL Available from the Technical Data Download Service on ON SGML C N/A 90 AirbusWorld (Graphics in CGM, compliant with iSpec 2200 )
OFF SGML C 1 90 Effective CD delivery will only take place at the time of explicit request from the Buyer
ON PDF C N/A 90 * PDF will be discontinued in 2010 after implementation of the OFF CD-P C * 90 AirN@v / Maintenance Technical Data upgrade programme Aircraft Wiring Manual AWM Available from the Technical Data Download Service on ON SGML C N/A 90 AirbusWorld (Graphics in CGM, compliant with iSpec 2200 ) Effective CD delivery will only take place at the time of explicit OFF SGML C 1 90 request from the Buyer
Effective delivery will only take place at the time of explicit request Consumable Material List CML OFF SGML G 1 180 from the Buyer
ON PDF E N/A 90 Ecam System Logic Data ESLD OFF CD-P E 5 90 Used for in-depth aircraft trouble shooting. Ref to SIL 31-033 for details.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit J July 2011 7 MAINTENANCE AND ASSOCIATED MANUALS EXHIBIT J
NOMENCLATURE Abbr Avail Form Type Qty Deliv Comments
One ELA supplied for each Aircraft, delivered one month after first Electrical Load Analysis ELA OFF PDF/MS Word C 1 +30 Aircraft Delivery PDF File + Office automation format RTF & Excel Excel file delivered on one single CD for ELA updating by the Buyer
Electrical Standard Practices Manual ESPM OFF SGML G 1 90 *Effective CD delivery will only take place at the time of explicit request from the Buyer * Pocke size format booklet, which provides maintenance personnel Electrical Standard Practices booklet ESP OFF P2* G 20 90 with quick and easy access for the identification of electrical equipment and the required tooling. Advanced Flight Data Recording Parameter Library FDRPL OFF Consultation E 5 90 Tool on CD ON PDF C N/A 90 * PDF will be discontinued in 2010 after implementation of the OFF CD-P C * 90 AirN@v / Maintenance Technical Data upgrade programme.
Illustrated Parts Catalog (Airframe) IPC ON SGML C N/A 90 Available from the Technical Data Download Service on AirbusWorld (Graphics in CGM, compliant with iSpec 2200 ) OFF SGML C 1 Effective CD delivery will only take place at the time of explicit request from the Buyer Integrated in the SA aircraft IPC for IAE V2500 A1/A3 Engines . ON PDF C N/A 90 Integrated in the LR A340-500/-600 aircraft IPC for RR Trent 500 Illustrated Parts Catalog (Powerplant) PIPC Engines. OFF CD-P C 20* 90 *For other aircraft and engine types, supplied by Propulsion Systems Manufacturer concurrently with the Airframe IPC. In addition to MPD in AirN@v consultable format, AirN@v / Planning Advanced includes additional MPD files in the following downloadable formats: ON Consultation E N/A 360 - PDF format AirN@v / Planning , including AirN@v/ Tool - MS XLS ( Excel) format Maintenance Planning Document – MPD Planning - TSDF / Text Structured Data File format (specific ASCII for MIS Advanced and Database upload ) OFF Consultation E 5 360 - SGML format for further processing Tool on DVD Life Limited Parts information is included in the Airworthiness Limitation Section (ALS)
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit J July 2011 8 EXHIBIT J MAINTENANCE AND ASSOCIATED MANUALS
NOMENCLATURE bbr Avail Form Type Qty Deliv Comments The latest revisions of individual MRB Report and ALS documents are available shortly after approval on Maintenance Review Board Report – MRBR MRBR ON PDF E N/A 360 AirbusWorld Maintenance & Engineering site, under " Prepare Airworthiness Limitation Section – ALS ALS Maintenance Programme", "Demonstrate compliance with airworthiness limitations" tab, with aircraft operators being informed through a dedicated OIT. Tool & Equipment Bulletins TEB ON PDF E N/A N/A Advanced These drawings include the Seller's and Suppliers' equipment Tool and Equipment Drawings TED ON Consultatio E N/A 360 drawings, except for the Seller's and Suppliers' proprietary items Tool AirN@v / Engineering , including: Airworthiness Directives - AD European Airworthiness Directives - EUAD Advanced ( incl. French DGAC AD's) ON Consultation C N/A 90 All Operator Telex - AOT Tool Operator Information Telex - OIT AirN@v Engineering is an electronic index used for identification Flight Operator Telex - FOT AirN@v/ of the references and links between the Seller's and Suppliers' Modification - MOD Engineering engineering documents Modification Proposal - MP Service Bulletin - SB Advanced Service Information Letter - SIL OFF Consultation C 5 90 Technical Follow-Up - TFU Tool on DVD Vendor Service Bulletin - VSB
ON PDF C N/A 90 * PDF will be discontinued in 2010 after implementation of the OFF CD-P C * 90 AirN@v / Maintenance Technical Data upgrade programme Trouble Shooting Manual TSM Available from the Technical Data Download Service on ON SGML C N/A 90 AirbusWorld (Graphics in CGM, compliant with iSpec 2200 ) Effective CD delivery will only take place upon the Buyer's OFF SGML C 1 90 express request.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit J July 2011 9 EXHIBIT J STRUCTURAL MANUALS
NOMENCLATURE Abbr Avail Form Type Qty Deliv Comments
Advanced AirN@v / Repair includes: ON Consultation E N/A 90 • For SA aircraft, one specific SRM for each A318, A319, Tool A320, A321, one SA aircraft common NTM, AirN@v / Repair , including: AirN@v / • For LR aircraft, one SRM and NTM for A340-200/-300, one Structural Repair Manual (*) - SRM Repair SRM and NTM for A340-500/-600. Non Destructive Testing Manual - NTM *Nacelle repair data are integrated in the Airframe SRM for A318 Advanced PW6000 and A340-500/-600 RR Trent aircraft. For all other SA OFF Consultation E 5 90 and LR aircraft and engine types, the Nacelle SRM shall be Tool on DVD supplied by the relevant Propulsion System Supplier.
ON SGML E N/A Structural Repair Manual SRM OFF SGML E * *Upon request only.
ON SGML E N/A 90 Non Destructive Testing Manual NTM OFF SGML E * 90 *Upon request only.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit J July 2011 10 EXHIBIT J OVERHAUL DATA
NOMENCLATURE Abbr Avail Form Type Qty Deliv Comments
Advanced AirN@v / Workshop, including: Consultation Component Maintenance Manual AirN@v / ON Tool E N/A 180 DFPRM first issue in AirN@v / Workshop planned 2nd half 2009 Manufacturer - CMMM Workshop Advanced Duct Fuel Pipe Repair Manual - DFPRM OFF Consultation E 5 180 Tool on DVD Component Maintenance Manual ON SGML E N/A 180 Manufacturer CMMM OFF SGML E * 180 *Upon request only. Fallback solution to AirN@v / Workshop
OFF CD-P E * 180 * Vendor Supply in digital PDF format . Component Maintenance Manual Vendor CMMV ON PDF E N/A 180 Available from the "Supplier Technical Documentation On-Line Service" in AirbusWorld
Component Documentation Status CDS OFF CD C 1 180 Revised until 180 days after first Aircraft Delivery
ON PDF G N/A - Component Evolution List CEL OFF CD-P G 1 - Delivered as follow-on to CDS.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit J July 2011 11 EXHIBIT J ENGINEERING DOCUMENTS
NOMENCLATURE Abbr Avail Form Type Qty Deliv Comments
Seller Installation, Assembly and Detailed part Drawings for Structure & System installations, fitted on the Buyer's fleet or Aircraft . They cover the Aircraft "as designed", ie in its original configuration Advanced at first Aircraft Delivery. Mechanical Drawings, including the Drawing Consultation Repair drawings are supplied upon specific Buyer request. Picture, Parts List / Parts Usage MD ON Tool C N/A 0 Buyer's queries shall be issued in connection with an approved document: SB, SRM or RAS (Repair Assessment Sheet) Mechanical Drawings include: 2D Drawing sheets Parts List / Parts Usage (in PDF).
ON SGML G N/A 180 Effective delivery will only take place at the time of explicit request Standards Manual SM OFF SGML G 1 180 from the Buyer.
ON PDF G N/A 0 Process and Material Specification PMS OFF CD-P G 1 0
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit J July 2011 12 EXHIBIT J
NOMENCLATURE Abbr Avail Form Type Qty Deliv Comments
Airplane Characteristics for Airport Planning – ON PDF E N/A 360 Available On-Line in AirbusWorld AC AC/MFP Grouped on one single CD Maintenance Facility Planning - MFP OFF CD-P E 5 360 Fallback solution to the on-line AC / MFP
ATA 100 Index ATI ON PDF E N/A 360 6 Digits ATA 100 Index
Advanced Technical Data self-tutorial training which provides basic ON Consultation G N/A 360 familiarization tailored for Maintenance and Engineering C@DETS /Technical Data Training Tool on CD personnel. Courseware and Software C@DETS Advanced It is AirN@v Services oriented and available on AirbusWorld for OFF Consultation G 5 360 downloading by module as required. Tool ON PDF E N/A 90 Aircraft Recovery Manual ARM OFF CD-P E 1 90
Chart can be downloaded from AirbusWorld either in TIFF or ON PDF E N/A 180 PDF format Aircraft Rescue & Firefighting Chart ARFC OFF P1 E 20 180 Full size charts, which are available in poster format (530 x 640 mm)
ON PDF E N/A 180 Cargo Loading System Manual CLS OFF CD-P E 1 180 One CLS per delivered Aircraft
The LETD provides, for each Technical Data, information about: - Applicable issue and revision date, List of Effective Technical Data LETD ON PDF C N/A 90 - Shipping information with search functions by manual or delivery address criteria, -Tracking of shipments through the Carrier Website.
ON PDF G N/A 90 List of Radioactive and Hazardous Elements LRE OFF CD-P G 1 90
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit J July 2011 13 EXHIBIT J
NOMENCLATURE Abbr Avail Form Type Qty Deliv Comments
Advanced Available for A340-500/-600 aircraft . LATC ON Calculation E N/A 90 Electronic format, which includes a software tool to calculate the Tool loads of various live animals which can be transported in cargo Live Animal Transportation Calculation Tool Advanced compartments under known environmental conditions LATC OFF Calculation E 5 90 Remark : LTM (Live Stock Transportation Manual) replaced by Tool on CD LATC, migration for LR aircraft :Jul 09, for SA aircraft : Oct 09 Advanced Full SB content and SB search functions are available from ON Consultation C N/A 0 AirN@v / Engineering on AirbusWorld Service Bulletins SB Tool
OFF CD-P C 1 0 CD available for simplified SBs only
Contains all SSC's Supplier Support Conditions and current GCP 2000 Issue 04 Agreements ratified by Airbus Suppliers . Supplier Product Support Agreements 2000 SPSA ON PDF G N/A 360 It specifies : - Airbus Support Standards - The individual Suppliers' contractual Support commitments
Transportability Manual TM OFF CD-P G 1 180
VIM + Advanced Combined Vendor Information Manual and Aircraft On Ground & Vendor Information Manual + AOG & ON Consultation G N/A 360 Repair Guide. It supplies information on Supplier Support Aircraft On Ground & Repair Guide RG Tool locations, Repair Stations, stock locations and distributors around the world for Airbus Customers.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit J July 2011 14 EXHIBIT K AIRCRAFT PRICE REVISION FORMULA *** C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit K July 2011 1 EXHIBIT L PROPULSION SYSTEMS PRICE REVISION FORMULA
CFM INTERNATIONAL *** C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit L July 2011 1 EXHIBIT M PROPULSION SYSTEMS PRICE REVISION FORMULA
PRATT AND WHITNEY *** C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit M July 2011 1 EXHIBIT N
EXHIBIT N LICENSES AND ON LINE SERVICES
Part 1 END-USER LICENSE AGREEMENT FOR AIRBUS SOFTWARE
Part 2 GENERAL TERMS AND CONDITIONS OF ACCESS TO AND USE OF AIRBUSWORLD (signed between Airbus S.A.S and CIT AI, dated 1 June, 2007)
Part 3 END-USER SUBLICENSE AGREEMENT FOR SUPPLIER SOFTWARE C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 1 EXHIBIT N PART 1 END-USER LICENSE AGREEMENT FOR AIRBUS SOFTWARE 1 DEFINITIONS For the purposes of this end-user license agreement for Airbus software (the "Software License") the following definitions shall apply: "Agreement" means the Purchase Agreement of even date herewith entered into between the Licensee and the Licensor covering the purchase and sale of the Aircraft subject thereof. "Airbus Software" means each of the Licensor's proprietary products including Composite Work, configurations, processes, rules (together with any related documentation), as well as any modifications, enhancements or extensions thereto as may be provided by the Licensor from time to time. The Airbus Software shall be supplied in machine-readable code form only, for use in connection with the Aircraft or operations related to the Aircraft. The Airbus Software shall be either On Board Certified Software or Software Products. For the avoidance of doubt, this Software License does not apply to (i) open source software contained in the Airbus Software, if any, and it is hereby acknowledged and agreed by both parties hereto that such open source software is independently distributed on an "as is" basis under the respective license terms therefor, and that the Licensor disclaims any liability in relation to such open source software, or (ii) any proprietary third party software that the Licensor purchases or licenses from any third party and delivers to the Licensee, either as a sublicense or as a direct license from such third party. "Aircraft" means, individually or collectively, the Aircraft subject of the Agreement. "Composite Work" means the package composed of various elements, such as database(s), software or data, and which necessitates the use of the Airbus Software. "Licensee" means the Buyer under the Agreement. "Licensor" means the Seller under the Agreement. "On Board Certified Software" means those Airbus Part 125 and/or FAR 125 certified software that are installed on board the Aircraft and bear a part number of the Licensor, excluding any software embedded in any component, furnishing or equipment installed on the Aircraft and itself bearing a part number. "Permitted Purpose" means use of the Airbus Software by the Licensee for its own internal business needs, solely in conjunction with the Aircraft and in particular pertaining to (i) operation of the Aircraft; (ii) on ground operational support of the Aircraft; or (iii) related authorized customization of software. "Software Product(s)" means either those Airbus Software intended to be used on ground at the Licensee's facilities or Airbus Software that are installed on board the Aircraft and that are not Part 125 and/or FAR 125 certified - whether or not bearing a part
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 2 EXHIBIT N number of the Licensor - excluding any software embedded in any component, furnishing or equipment installed on the Aircraft and itself bearing a part number. "Update(s)" means any update(s) or replacement(s) to the Airbus Software licensed hereunder, which the Licensor, at its discretion, makes generally available to the Licensee. "User Guide" means the documentation, which may be in electronic format, designed to assist the Licensee in using the Airbus Software. Capitalized terms used herein and not otherwise defined in this Software License shall have the meaning assigned thereto in the Agreement.
2 LICENSE
In consideration of the purchase by the Licensee of the Aircraft, the Licensee is hereby granted a worldwide and non-exclusive right to use the Airbus Software, for a Permitted Purpose. The Licensor shall remain the owner of all intellectual property rights in the Airbus Software. There shall be one license encompassing all Airbus Software granted in respect of each Aircraft purchased by the Licensee.
Notwithstanding the foregoing, license rights regarding the use of Software Products may be subject to specific commercial conditions and to the payment of specific fees relating to such Software Products.
The Licensee hereby acknowledges that it is aware that certain Airbus Software subject of this Software License may incorporate some third party software or open source software components. The Licensee hereby agrees to be bound by the licensing terms and conditions applicable to such third party software and made available by the Licensor through AirbusWorld.
3 ASSIGNMENT AND DELEGATION
3.1 Assignment
3.1.1 On Board Certified Software
The Licensee may at any time assign or otherwise transfer all or part of its rights pertaining to any On Board Certified Software under this Software License only as part of, and to the extent of, a sale, transfer or lease of each Aircraft on which such On Board Certified Software is installed. The Licensee shall assign as many Software Licenses as the number of sold, transferred or leased Aircraft and shall retain all other Software Licenses attached to any Aircraft that the Licensee continues to operate.
In the event of any such assignment or transfer, the Licensee shall transfer the copies of the Airbus Software attached to the sold, transferred or leased Aircraft (including all component parts, media, any upgrades or backup copies and, if applicable, certificate(s) of authenticity), except as otherwise instructed by the Licensor.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 3 EXHIBIT N 3.1.2 Software Products Save as otherwise set forth in the Agreement, the right to use any Software Product is personal to the Licensee, for its own internal use, and is non- transferable, except with the Licensor's prior written consent, in which case the Licensee shall cause the assignee or sub-licensee to agree to the terms of this Software License.
3.2 Delegation Without prejudice to Article 6 (a) hereof, in the event of the Licensee intending to designate a maintenance and repair organization or a third party to perform the maintenance of the Aircraft or to perform data processing on its behalf (each a "Third Party"), the Licensee shall notify the Licensor of such intention prior to any disclosure of this Software License and/or the Airbus Software Services to such Third Party. The Licensee hereby undertakes to cause such Third Party to agree to be bound by the conditions and restrictions set forth in this Software License with respect to the Airbus Software and shall in particular cause such Third Party to enter into a appropriate licensing conditions and to commit to use the Airbus Software solely for the purpose of maintaining the Aircraft and/or for processing the Licensee's data.
4 COPIES Use of the Airbus Software is limited to the number of copies delivered by the Licensor to the Licensee and to the medium on which the Airbus Software is delivered. No reproduction shall be made without the prior written consent of the Licensor, except that the Licensee is authorized to copy the Airbus Software for back-up and archiving purposes. Any copy the Licensor authorizes the Licensee to make shall be performed under the sole responsibility of the Licensee. The Licensee agrees to reproduce the copyright and other notices as they appear on or within the original media on any copies that the Licensee makes of the Airbus Software.
5 TERM 5.1 On Board Certified Software Subject to the Licensee having complied with the terms of this Software License, the rights under this Software License shall be granted from the date of Delivery of each Aircraft until the earlier of (i) the Aircraft definitively ceasing to be operated, in which case the license rights pertaining to such Aircraft shall be deemed terminated on the date of the last operation thereof by the Licensee or any of its assignees, or (ii) the Agreement, this Software License or any part thereof being terminated for any reason whatsoever, in which case the Licensee shall immediately cease to use the On Board Certified Software.
5.2 Software Products Save as otherwise specified in any applicable commercial conditions relating to any Software Product as set forth in the Agreement and subject to the Licensee having complied with the terms of this Software License, the rights under this Software License shall be granted from the date of first delivery of the Software Product until the earlier of (i) for Software Products that are installed on board the Aircraft, the Licensee ceasing to operate the Aircraft on which such Software Products are installed, or (ii) the Licensee no longer owning or operating any Aircraft, or (iii) the Agreement or this Software License
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 4 EXHIBIT N being terminated for any reason whatsoever, in which case the Licensee shall immediately cease to use the Software Products.
6 CONDITIONS OF USE The Airbus Software shall only be used for the Permitted Purpose. The Licensee shall be solely responsible for, and agrees to be careful in the use of, all outputs and results derived from the operation of the Airbus Software and all consequences, direct and indirect, relating to the use of such output and results. The Licensee agrees to use such outputs and results only once it has verified such outputs and results and has checked the relevance and correctness thereof, in the light of its particular needs. The Licensee expressly acknowledges that it shall take all appropriate precautions for the use of the Airbus Software, including without limitation measures required for its compliance with the User Guide or any information or directive regarding the use of the Supplier Software. Under the present Software License, the Licensee shall:
a) not permit any parent, subsidiary, affiliate, agent or third party to use the Airbus Software in any manner, including, but not limited to, any outsourcing, loan, commercialization of the Airbus Software or commercialization by merging the Airbus Software into another software or adapting the Airbus Software, without the prior written consent from the Licensor;
b) do its utmost to maintain the Airbus Software and the relating documentation in good working condition, in order to ensure the correct operation thereof;
c) use the Airbus Software in accordance with such documentation and the User Guide, and ensure that the personnel using the Airbus Software has received appropriate training;
d) use the Airbus Software exclusively in the technical environment defined in the applicable User Guide, except as otherwise agreed in writing between the parties;
e) except as permitted by applicable law, not alter, reverse engineer, modify, correct, translate, disassemble, decompile or adapt the Airbus Software, nor integrate all or part of the Airbus Software in any manner whatsoever into another software product, nor create a software product derived from the Airbus Software save with the Licensor's prior written approval.
f) should the Licensor have elected to provide the source code to the Licensee, have the right to study and test the Airbus Software, under conditions to be expressly specified by the Licensor, but in no event shall the Licensee have the right to correct, modify or translate the Airbus Software;
g) except with respect to Software Products intended to be used on ground, use the Airbus Software exclusively on the referenced machines and the declared sites;
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 5 EXHIBIT N h) not attempt to discover or re-write the Airbus Software source codes in any manner whatsoever;
i) not delete any identification or declaration relative to the intellectual property rights, trademarks or any other information related to ownership or intellectual property rights in the Airbus Software;
j) not pledge, sell, distribute, grant, sublicense, lease, lend, whether on a free-of- charge basis or against payment, or permit access on a time- sharing basis or any other utilization of the Airbus Software, whether in whole or in part, for the benefit of a third party. With respect to Software Products intended for use on ground, the Licensor shall be entitled, subject to providing reasonable prior written notice thereof to the Licensee, to verify at the Licensee's facilities whether the conditions specified in the present Software License are fulfilled.
7 TRAINING
In addition to the User Guide provided with the Airbus Software, training and other assistance may be provided upon the Licensee's request, subject to the conditions set forth in the Agreement. Such assistance or training shall not operate to relieve the Licensee of its sole responsibility with respect to the use of the Airbus Software under this Software License.
8 PROPRIETARY RIGHTS - RIGHT TO CORRECT AND MODIFY
8.1 The Airbus Software is proprietary to the Licensor or the Licensor has acquired the intellectual property rights necessary to grant this Software License. The copyright and all other proprietary rights in the Airbus Software are and shall remain the property of the Licensor.
8.2 The Licensor reserves the right to correct and modify any Airbus Software at its sole discretion and the Licensee shall not undertake any correction or modification of the Airbus Software without the Licensor's prior written approval. The Licensee shall install any Updates provided by the Licensor, at its own cost, in accordance with the time schedule notified with the provision of such Update(s). In the event of the Licensee failing to install any such Update(s), the Licensor shall be relieved of any warranty or liability of any kind with respect to the conformity or operation of the Airbus Software.
9 COPYRIGHT INDEMNITY
9.1 Indemnity
9.1.1 Subject to the provisions of Article 9.2.3, the Licensor shall defend and indemnify the Licensee from and against any damages, costs and expenses including legal costs (excluding damages, costs, expenses, loss of profits and other liabilities in respect of or resulting from loss of use of the Aircraft) resulting from any infringement, or claim of infringement, by any Airbus Software provided by the Licensor, of any copyright, provided that the Licensor's obligation to indemnify shall be limited to infringements in countries
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 6 EXHIBIT N which, at the time of the infringement or alleged infringement, are members of The Berne Union and recognize computer software as a "work" under the Berne Convention.
9.1.2 In the event that the Licensee is prevented from using the Airbus Software for infringement of a copyright referred to in Article 9.1.1 (whether by a valid judgment of a court of competent jurisdiction or by a settlement arrived at between claimant, Licensor and Licensee), the Licensor shall at its expense either:
(i) procure for the Licensee the right to use the same free of charge to the Licensee; or
(ii) replace the infringing part of the Airbus Software as soon as possible with a non-infringing substitute complying in all other respects with the requirements of this Software License.
9.2 Administration of Copyright Indemnity Claims 9.2.1 If the Licensee receives a written claim or a suit is threatened or commenced against the Licensee for infringement of a copyright referred to in Article 9.1 as a result of the use of the Airbus Software, the Licensee shall:
(i) forthwith notify the Licensor giving particulars thereof;
(ii) furnish to the Licensor all data, papers and records within the Licensee's control or possession relating to such claim or suit;
(iii) refrain from admitting any liability or making any payment or assuming any expenses, damages, costs or royalties or otherwise acting in a manner prejudicial to the defense or denial of such suit or claim provided always that nothing in this sub-Article (iii) shall prevent the Licensee from paying such sums as may be required in order to obtain the release of the Aircraft and allow for the normal, intended use of the Aircraft, provided such payment is accompanied by a denial of liability and is made without prejudice, in each case to the extent possible;
(iv) reasonably co-operate with, and render all such reasonable assistance to the Licensor as be may be pertinent to the defense or denial of the suit or claim (the direct and reasonable costs of which shall be borne by Licensor);
(v) act in such way as to reasonably mitigate damages and/or reduce the amount of royalties that may be payable as well as to minimize costs and expenses.
9.2.2 The Licensor shall be entitled, either in its own name or on behalf of the Licensee, to conduct negotiations with the party or parties alleging infringement and may assume and conduct the defense or settlement of any suit or claim in the manner, which it deems proper.
9.2.3 The Licensor's obligations and the Licensee's remedies hereunder shall be conditional upon the strict and timely compliance by the Licensee with the terms of this Clause 9 and of Clauses 6(e), 6(h), 6(i) and 8.2 and are exclusive and in substitution for, and the Licensee hereby waives, releases and renounces all other obligations and liabilities of the Licensor and rights, claims and remedies of the Licensee against the Licensor, express or implied, arising by law or otherwise with respect to any infringement or claim of infringement of any copyright.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 7 EXHIBIT N 10 CONFIDENTIALITY The Airbus Software, this Software License and their contents are designated as confidential. The Licensee undertakes not to disclose the Software License, the Airbus Software or any parts thereof to any third party without the prior written consent of the Licensor, except to the lessee in case of lease of an Aircraft or to the buyer in case of resale of an Aircraft provided that such lessee or buyer agree to maintain the duty of confidentiality as set forth in this Clause 10, without prejudice to any provisions set forth in the Agreement. In so far as it is necessary to disclose aspects of the Airbus Software to the Licensee's employees, such disclosure is permitted solely for the purpose for which the Airbus Software is supplied and only to those employees who need to know the same, save as permitted herein or where otherwise required pursuant to an enforceable court order or any governmental decision or regulatory provision imposed on the Licensee, provided that reasonable prior notice of the intended disclosure is provided to the Licensor. The obligations of the Licensee to maintain confidentiality shall survive the termination of this Software License for a period of five (5) years.
11 ACCEPTANCE On Board Certified Software shall be deemed accepted as part of the Technical Acceptance Process set out in Clause 8 of the Agreement. Software Products shall be deemed accepted upon delivery thereof unless otherwise specifically provided for in the Agreement.
12 WARRANTY 12.1 On Board Certified Software Any On Board Certified Software installed on board an Aircraft at Delivery thereof shall be deemed a Warranted Part for the purposes of Clause 12.1 of the Agreement and the relevant provisions of such Clause 12.1 shall be fully applicable to such On Board Certified Software.
12.2 Software Products The Licensor warrants that Software Products are prepared in accordance with the state of art at the date of their conception and shall perform substantially in accordance with their functional and technical specifications current at the time of their initial delivery. Should the Software Products be found not to conform to their documentation, the Licensee shall notify the Licensor promptly thereof and the sole and exclusive liability of the Licensor under this Software License shall be to provide the Licensee with two (2) months free of charge maintenance services. After these two (2) months, the terms and conditions applicable to maintenance services shall be those specified in the current Customer Services Catalog. For the avoidance of doubt, this Article 12.2 shall not be applicable to Software Product Updates, modifications, enhancements and extensions.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 8 EXHIBIT N 12.3 The Licensor shall be relieved of any obligations under Articles 12.1 and 12.2 in case of:
(i) Airbus Software defects or non-conformities caused by alterations or modifications to the Airbus Software carried out without the prior approval of the Licensor;
(ii) Airbus Software defects or non-conformities caused by negligence of the Licensee or other causes beyond the Licensor's reasonable control;
(iii) Failure of the Licensee to install any Update in accordance with Article 8 hereof;
(iv) Airbus Software defects or non-conformities caused by errors in or modifications of or Updates to operating systems, databases or other software or hardware with which the Airbus Software interfaces, where such elements have not been provided by the Licensor.
The Licensee shall be responsible for the cost and expense of any correction services provided by the Licensor as a result of any of the foregoing exclusions. Such correction services shall be subject to the then applicable commercial conditions.
12.4 Waiver, release and renunciation THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE LICENSOR (AS DEFINED BELOW FOR THE PURPOSES OF THIS CLAUSE) AND REMEDIES OF THE LICENSEE SET FORTH IN THIS ARTICLE 12 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE LICENSEE HEREBY WAIVES, RELEASES AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE LICENSOR AND RIGHTS, CLAIMS AND REMEDIES OF THE LICENSEE AGAINST THE LICENSOR, EXPRESS OR IMPLIED, ARISING BY LAW, CONTRACT OR OTHERWISE WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT OF ANY KIND IN ANY AIRBUS SOFTWARE AND SERVICES DELIVERED UNDER THE AGREEMENT AND/OR THIS SOFTWARE LICENSE, INCLUDING BUT NOT LIMITED TO: (A) ANY WARRANTY AGAINST HIDDEN DEFECTS; (B) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER IN CONTRACT OR IN TORT AND WHETHER OR NOT ARISING FROM THE LICENSOR'S NEGLIGENCE, ACTUAL OR IMPUTED; AND
(E) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE, DATA OR SERVICES DELIVERED UNDER THE AGREEMENT, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
PROVIDED THAT, IN THE EVENT THAT ANY OF THE AFORESAID PROVISIONS SHOULD FOR ANY REASON BE HELD UNLAWFUL OR OTHERWISE INEFFECTIVE, THE REMAINDER OF THIS SOFTWARE LICENSE SHALL REMAIN IN FULL FORCE AND EFFECT.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 9 EXHIBIT N FOR THE PURPOSES OF THIS ARTICLE 12, "THE LICENSOR" SHALL BE UNDERSTOOD TO INCLUDE THE LICENSOR, ANY OF ITS SUPPLIERS AND SUBCONTRACTORS, ITS AFFILIATES AND ANY OF THEIR RESPECTIVE INSURERS. The Licensor shall have no liability for data that is entered into the Airbus Software by the Licensee and/or used for computation purposes.
13 LIABILITY AND INDEMNITY The Airbus Software is supplied under the express condition that the Licensor shall have no liability in contract or in tort arising from or in connection with the use and/or possession by the Licensee of the Airbus Software and that the Licensee shall indemnify and hold the Licensor harmless from and against any liabilities and claims from third parties arising from such use and/or possession.
14 EXCUSABLE DELAYS 14.1 The Licensor shall not be responsible nor be deemed to be in default on account of delays in delivery of any Airbus Software or Update due to causes reasonably beyond the Licensor's or its subcontractors' control including but not limited to: natural disasters, fires, floods, explosions or earthquakes, epidemics or quarantine restrictions, serious accidents, total or constructive total loss, any act of the government of the country of the Licensee or the governments of the countries of Licensor or its subcontractors, war, insurrections or riots, failure of transportation, communications or services, strikes or labor troubles causing cessation, slow down or interruption of services, inability after due and timely diligence to procure materials, accessories, equipment or parts, failure of a subcontractor or supplier to furnish materials, accessories, equipment or parts due to causes reasonably beyond such subcontractor's or supplier's control or failure of the Licensee to comply with its obligations arising out of the present Software License.
14.2 The Licensor shall, as soon as practicable after becoming aware of any delay falling within the provisions of this Article, notify the Licensee of such delay and of the probable extent thereof and shall, subject to the conditions as hereinafter provided and as soon as practicable after the removal of the cause or causes for delay, resume delivery of the delayed Airbus Software or Update.
15 TERMINATION In the event of breach of an obligation set forth in this Software License by either the Licensor or the Licensee or failure to comply with the commercial conditions applicable to Airbus Software as set forth in the Agreement, which is not cured within 30 days from the date of receipt of a written notice notifying the breach, the non-breaching party shall be entitled to terminate this Software License. In the event of termination for any cause, the Licensee shall no longer have any right to use the Airbus Software and shall return to the Licensor all copies of the Airbus Software and any relating documentation together with an affidavit to that effect. In case of breach by the Licensee, the Licensor shall be entitled to retain any amount paid for the ongoing year. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 10 EXHIBIT N 16 General Provisions
16.1 This Software License is an Exhibit to the Agreement and integrally forms part thereof. As a result, any non-conflicting terms of the Agreement are deemed incorporated herein to the extent they are relevant in the context of this Software License.
16.2 In the event of any inconsistency or discrepancy between any term of this Software License and any term of the Agreement (including any other Exhibit or Appendices thereto), the terms of this Software License shall take precedence over the conflicting terms of the Agreement to the extent necessary to resolve such inconsistency or discrepancy.
16.3 This Software License is subject to and construed and the performance thereof shall be determined in accordance with the laws in effect in the State of New York without regard to conflict of laws principles that could result in the application of the laws of any other jurisdiction. All disputes arising in connection with this Software License shall be submitted to the competent courts of New York, and the parties hereby agree to submit to the jurisdiction of those courts.
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C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 21 EXHIBIT N PART 3 END-USER SUBLICENSE AGREEMENT FOR SUPPLIER SOFTWARE 1 DEFINITIONS For the purposes of this end-user sublicense agreement for Supplier Software (the "Software Sublicense") the following definitions shall apply: "Agreement" means the Purchase Agreement of even date herewith covering the purchase and sale of the Aircraft subject thereof. "Aircraft" means, individually or collectively, the Aircraft subject of the Agreement. "Composite Work" means the package composed of various elements, such as database(s), software or data, and which necessitates the use of the Supplier Software. "Permitted Purpose" means use of the Supplier Software by the Sublicensee for its own internal business needs, solely in conjunction with the Aircraft and in particular pertaining to (i) operation of the Aircraft; (ii) on ground operational support of the Aircraft; or (iii) related authorized customization of software. "Sublicensee" means the Buyer under the Agreement. "Sublicensor" means the Seller under the Agreement as authorized by the Supplier to sublicense the Supplier Software to the operators of Airbus aircraft. "Supplier" means each of the Sublicensor's suppliers owning the intellectual property rights in the corresponding Supplier Software (or holding the right to authorize the Sublicensor to sublicense such Supplier Software) and having granted to the Sublicensor the right to sublicense such Supplier Software. "Supplier Product Support Agreement" shall have the meaning set forth in Clause 12.3.1.3 of the Agreement. "Supplier Software" means each of the Supplier's proprietary products including Composite Work, configurations, processes, rules (together with any related documentation) as well as any modifications, enhancements or extensions thereto, as may be provided by the Supplier or the Sublicensor from time to time and the supply of which to the Sublicensee is governed by a Supplier Product Support Agreement. The Supplier Software shall be supplied in machine-readable code form only, for use in connection with the Aircraft or operations related to the Aircraft. For the avoidance of doubt, this Software Sublicense does not apply to (i) any software embedded in any component, furnishing or equipment installed on the Aircraft and itself bearing a partnumber (ii) third party software not provided under a Supplier Product Support Agreement, including but not limited to any standard, "off the shelf" software (Components Off The Shelf/COTS) and (iii) open source software contained in the Supplier Software, if any, and it is hereby acknowledged and agreed by both parties hereto that such open source software is independently distributed on an "as is" basis under the respective license terms therefor, and that the Sublicensor disclaims any liability in relation to such open source software.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 22 EXHIBIT N "Update(s)" means any update(s) or replacement(s) to the Supplier Software licensed hereunder, which the Sublicensor or the Supplier, at their discretion, make generally available to the Sublicensee. "User Guide" means the documentation, which may be in electronic format, designed to assist the Sublicensee in using the Supplier Software. Capitalized terms used herein and not otherwise defined in this Software Sublicense shall have the meaning assigned thereto in the Agreement.
2 LICENSE
In consideration of the purchase by the Sublicensee of the Aircraft, the Sublicensee is hereby granted a free of charge, worldwide and non-exclusive right to use the Supplier Software, for a Permitted Purpose. Each Supplier shall remain the owner of all intellectual property rights in the Supplier Software. There shall be one Software Sublicense granted in respect of each Aircraft purchased by the Sublicensee.
The Sublicensee hereby acknowledges that it is aware that certain Supplier Software subject of this Software Sublicense may incorporate some third party software or open source software components. The Sublicensee hereby agrees to be bound by the licensing terms and conditions applicable to such third party software and made available by the Sublicensor through AirbusWorld.
3 ASSIGNMENT AND DELEGATION
3.1 Assignment
The Sublicensee may, at any time, assign or otherwise transfer all or part of its rights under this Software Sublicense only as part of, and to the extent of, a sale, transfer or lease of any or all of the Aircraft to which the Supplier Software are related provided that the Sublicensee causes the assignee to agree to the terms of this Software Sublicense.
The Sublicensee shall assign a Software Sublicense for all Supplier Software installed on the sold, transferred or leased Aircraft and shall retain all other Software Sublicenses attached to any Aircraft that the Sublicensee continues to operate.
In the event of any such assignment or transfer, the Sublicensee shall transfer the copies of the Supplier Software attached to the sold, transferred or leased Aircraft (including all component parts, media, any upgrades or backup copies, this Software Sublicense, and if applicable, certificate(s) of authenticity), except as otherwise instructed by the Sublicensor.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 23 EXHIBIT N 3.2 Delegation Without prejudice to Article 10 hereof, in the event of the Sublicensee intending to designate a maintenance and repair organization or a third party to perform the maintenance of the Aircraft or to perform data processing on its behalf (each a "Third Party"), the Sublicensee shall notify the Sublicensor of such intention prior to any disclosure of this Software Sublicense and/or the Supplier Software to such Third Party. The Sublicensee hereby undertakes to cause such Third Party to enter into appropriate licensing conditions with the corresponding Supplier and to commit to use the Supplier Software solely for the purpose of maintaining the Sublicensee's Aircraft and/or processing the Sublicensee's data.
4 COPIES Use of the Supplier Software is limited to the number of copies delivered by the Sublicensor to the Sublicensee and to the medium on which the Supplier Software is delivered. No reproduction shall be made without the written consent of the Sublicensor, except that the Sublicensee is authorized to copy the Supplier Software for back-up and archiving purposes. Any copy the Sublicensor authorizes the Sublicensee to make shall be performed under the sole responsibility of the Sublicensee. The Sublicensee agrees to reproduce the copyright and other notices as they appear on or within the original media on any copies that the Sublicensee makes of the Supplier Software.
5 TERM Subject to the Sublicensee having complied with the terms of this Software Sublicense, the rights under this Software Sublicense shall be granted from the date of Delivery of each Aircraft until the earlier of (i) the Aircraft ceasing to be operated, in which case the license rights pertaining to such Aircraft shall be deemed terminated for such Aircraft on the date of the last operation thereof by the Sublicensee or any of its assignees, or (ii) the Agreement, this Software Sublicense or any part thereof, being terminated for any reason whatsoever, in which case the Sublicensee shall immediately cease to use the affected Supplier Software upon the effective termination date.
6 CONDITIONS OF USE The Supplier Software shall only be used for the Permitted Purpose. The Sublicensee shall be solely responsible for, and agrees to be careful in the use of, all outputs and results derived from the operation of the Supplier Software and all consequences, direct and indirect, relating to the use of such output and results. The Sublicensee agrees to use such outputs and results only once it has verified such outputs and results and has checked the relevance and correctness thereof, in the light of its particular needs. The Sublicensee expressly acknowledges that it will take all appropriate precautions for the use of the Supplier Software, including without limitation measures required for its compliance with the User Guide or any information or directive regarding the use of the Supplier Software. Under the present Software Sublicense, the Sublicensee shall:
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 24 EXHIBIT N a) not permit any parent, subsidiary, affiliate, agent or other third party to use the Supplier Software in any manner, including, but not limited to, any outsourcing, loan, commercialization of the Supplier Software or commercialization by merging the Supplier Software into another software or adapting the Supplier Software, without the prior written consent from the Supplier;
b) do its utmost to maintain the Supplier Software and the relating documentation in good working condition, in order to ensure the correct operation thereof;
c) use the Supplier Software in accordance with such documentation and the User Guide, and ensure that the personnel using the Supplier Software has received appropriate training;
d) use the Supplier Software exclusively in the technical environment defined in the applicable User Guide, except as otherwise agreed in writing between the parties;
e) except as permitted by applicable law, not alter, reverse engineer, modify, correct, translate, disassemble, decompile or adapt the Supplier Software, nor integrate all or part of the Supplier Software in any manner whatsoever into another software product; nor create a software product derived from the Supplier Software save with the Supplier's prior written approval;
f) should the Sublicensor or the Supplier have elected to provide the source code to the Sublicensee, have the right to study and test the Supplier Software, under conditions to be expressly specified by the Sublicensor, but in no event shall the Sublicensee have the right to correct, modify or translate the Supplier Software;
g) not attempt to discover or re-write the Supplier Software source codes in any manner whatsoever;
h) not delete any identification or declaration relative to the intellectual property rights, trademarks or any other information related to ownership or intellectual property rights in the Supplier Software;
i) not pledge, sell, distribute, grant, sublicense, lease, lend, whether on a free-of- charge basis or against payment, or permit access on a time- sharing basis or any other utilization of the Supplier Software, whether in whole or in part, for the benefit of a third party;
7 TRAINING In addition to the User Guide provided with the Supplier Software, training and other assistance shall be provided upon the Sublicensee's request, subject to conditions set forth in the Agreement. Such assistance or training shall not operate to relieve the Sublicensee of its sole responsibility with respect to the use of the Supplier Software under this Software Sublicense. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 25 EXHIBIT N 8 PROPRIETARY RIGHTS - RIGHT TO CORRECT AND MODIFY 8.1 The Supplier Software is proprietary to the Supplier and the Sublicensor represents and warrants that it has been granted the intellectual property rights necessary to grant this Software Sublicense. The copyright and all other proprietary rights in the Supplier Software are and shall remain the property of the Supplier.
8.2 The Supplier may correct or modify its Supplier Software from time to time at its sole discretion and the Sublicensee shall not undertake any correction or modification of the Supplier Software without the Sublicensor's prior written approval.The Sublicensee shall install any Updates provided either by the Supplier or the Sublicensor in accordance with the time schedule notified with the provision of such Update(s). In the event of the Sublicensee failing to install any such Update(s), both the Sublicensor and the Supplier shall be relieved of any warranty or liability of any kind with respect to the conformity or operation of the Supplier Software.
9 COPYRIGHT INDEMNITY The Sublicensee hereby accepts the transfer to its benefit of all transferable and enforceable copyright indemnity conditions related to the corresponding Supplier Software and contained in the applicable Supplier Product Support Agreement.
10 CONFIDENTIALITY The Supplier Software, this Software Sub-license and their contents are designated as confidential. The Sublicensee undertakes not to disclose the Software Sub-license, the Supplier Software or any parts thereof to any third party without the prior written consent of the Sublicensor, except to the lessee in case of lease of an Aircraft or to the buyer in case of resale of the Aircraft provided that such lessee or buyer agree to maintain the duty of confidentiality as set forth in this Clause 10, without prejudice to any provisions set forth in the Agreement. In so far as it is necessary to disclose aspects of the Supplier Software to the Sublicensee's employees, such disclosure is permitted solely for the purpose for which the Supplier Software is supplied and only to those employees who need to know the same, save as permitted herein or where otherwise required pursuant to an enforceable court order or any governmental decision or regulatory provision imposed on the Sublicensee, provided that reasonable prior notice of the intended disclosure is provided to the Sublicensor. The obligations of the Sublicensee to maintain confidentiality shall survive the termination of this Software Sublicense for a period of five (5) years.
11 ACCEPTANCE Supplier Software shall be deemed accepted as part of the Technical Acceptance Process set out in Clause 8 of the Agreement. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 26 EXHIBIT N 12 WARRANTY The Sublicensee hereby accepts the transfer to its benefit of all transferable and enforceable warranties related to the corresponding Supplier Software and contained in the applicable Supplier Product Support Agreement. As a result, THE SUBLICENSEE acknowledges that the transferable and enforceable warranties, OBLIGATIONS and LIABILITIES contained in the Supplier Product Support Agreement shall constitute the sole and exclusive remedy available in the event of any defect or non-conformity of the Supplier Software. Neither the Supplier nor the Sublicensor shall have any liability for data that is entered into the Supplier Software by the Sublicensee and/or used for computation purposes.
13 LIABILITY AND INDEMNITY The Supplier Software is supplied under the express condition that neither the Supplier nor the Sublicensor shall have any liability in contract or in tort arising from or in connection with the use and/or possession by the Sublicensee of the Supplier Software and that the Sublicensee shall indemnify and hold the Sublicensor and the Supplier harmless from and against any liabilities and claims from third parties arising from such use and/or possession.
14 EXCUSABLE DELAYS 14.1 Neither the Sublicensor nor the Supplier(s) shall be responsible nor be deemed to be in default on account of delays in delivery of any Supplier Software or Updates due to causes reasonably beyond Sublicensor's or its suppliers' or subcontractors' (including the Supplier) control including but not limited to: natural disasters, fires, floods, explosions or earthquakes, epidemics or quarantine restrictions, serious accidents, total or constructive total loss, any act of the government of the country of the Sublicensee or the governments of the countries of Sublicensor or its subcontractors or its suppliers (including the Supplier), war, insurrections or riots, failure of transportation, communications or services, strikes or labor troubles causing cessation, slow down or interruption of services, inability after due and timely diligence to procure materials, accessories, equipment or parts, failure of a subcontractor or supplier (including the Supplier) to furnish materials, accessories, equipment or parts due to causes reasonably beyond such subcontractor's or suppliers (including the Supplier) control or failure of the Sublicensee or the Supplier to comply with its obligations arising out of the present Software Sublicense.
14.2 The Sublicensor shall, and/or shall cause the Supplier to, as soon as practicable after becoming aware of any delay falling within the provisions of this Article, notify the Sublicensee of such delay and of the probable extent thereof and shall, subject to the conditions as hereinafter provided and as soon as practicable after the removal of the cause or causes for delay, resume delivery of the delayed Supplier Software or Update.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 27 EXHIBIT N 15 TERMINATION In the event of breach of an obligation set forth in this Software Sublicense by either the Sublicensor or the Sublicensee, which is not cured within 30 days from the date of receipt of a written notice notifying the breach, the non-breaching party shall be entitled to terminate this Software Sublicense. In the event of termination for any cause, the Sublicensee shall no longer have any right to use the Supplier Software and shall return to the Supplier all copies of the Supplier Software and any relating documentation together with an affidavit to that effect.
16 GENERAL PROVISIONS 16.1 This Software Sublicense is an Exhibit to the Agreement and integrally forms part thereof. As a result, any non-conflicting terms of the Agreement are deemed incorporated herein to the extent they are relevant in the context of this Software Sublicense.
16.2 In the event of any inconsistency or discrepancy between any term of this Software Sublicense and any term of the Agreement (including any Appendix or other Exhibits thereto), the terms of this Software Sublicense shall take precedence over the conflicting terms of the Agreement to the extent necessary to resolve such inconsistency or discrepancy.
16.3 The Sublicensee acknowledges that the Supplier Software covered under the present Sub-license Agreement is also subject to the conditions relative to each Supplier Software set forth in the corresponding Supplier Product Support Agreement. In the event of any inconsistency between the terms of this Sub-license Agreement and the terms contained in the corresponding Supplier Product Support Agreement, the latter shall prevail to the extent of such inconsistency.
16.4 This Software Sublicense is subject to and construed and the performance thereof shall be determined in accordance with the laws in effect in the State of New York without regard to conflict of laws principles that could result in the application of the laws of any other jurisdiction. All disputes arising in connection with this Software Sublicense shall be submitted to the competent courts of New York, and the parties hereby agree to submit to the jurisdiction of those courts. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement – Exhibit N July 2011 28 EXHIBIT O E X H I B I T O M A T E R I A L S U P P L Y AND S E R V I C E S C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit O July 2011 1 EXHIBIT O 1. GENERAL
1.1 Scope
1.1.1 This Exhibit O sets forth the terms and conditions for the support and services offered by the Seller to the Buyer with respect to Material (as defined below).
1.1.2 References made to Articles will be deemed to refer to articles of this Exhibit O unless otherwise specified.
1.1.3 For purposes of this Exhibit O:
1.1.4 the term "Supplier" will mean any supplier providing any of the Material listed in Article 1.2.1 and the term "Supplier Part" will mean an individual item of Material.
1.1.5 The term "SPEC 2000" means the "E-Business Specification for Materiels Management" document published by the Air Transport Association of America.
1.2 Material Categories 1.2.1 Each of the following constitutes "Material" for purposes of this Exhibit O:
(i) Seller parts;
(ii) Supplier Parts classified as Repairable Line Maintenance Parts (as defined in SPEC 2000);
(iii) Supplier Parts classified as Expendable Line Maintenance Parts (as defined in SPEC 2000);
(iv) Seller and Supplier ground support equipment and specific-to-type tools
where "Seller Parts" means Seller's proprietary parts bearing a part number of the Seller or for which the Seller has the exclusive sales rights.
1.2.2 Propulsion Systems, engine exchange kits, their accessories and parts for any of the foregoing, are not covered under this Exhibit O.
1.3 Term During a period commencing on the date hereof and continuing as long as at least five (5) aircraft of the model of the Aircraft are operated in commercial air transport service (the "Term"), the Seller will maintain, or cause to be maintained, a reasonable stock of Seller Parts. The Seller will use reasonable efforts to obtain a similar service from all Suppliers of Supplier Parts originally installed on an Aircraft at Delivery.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit O July 2011 2 EXHIBIT O 1.4 Airbus Material Store 1.4.1 AACS Spares Center The Seller has established and will maintain or cause to be maintained, during the Term, a US store ("US Spares Center"). The US Spares Center will be operated twenty-four (24) hours per day, seven (7) days per week, for the handling of AOG and critical orders for Seller Parts The Seller will make reasonable efforts to deliver Seller Parts to the Buyer from the US Spares Center.
1.4.2 Material Support Center, Germany The Seller has established its material headquarters in Hamburg, Germany (the "Airbus Material Center") and will, during the Term, maintain, or have maintained on its behalf, a central store of Seller Parts. The Airbus Material Center will be operated twenty-four (24) hours per day, seven (7) days per week.
1.4.3 Other Points of Shipment 1.4.3.1 In addition to the AACS Spares Center and the Airbus Material Center, the Seller and its Affiliates operate a global network of regional satellite stores (The "Regional Satellite Stores"). A list of such stores will be provided to the Buyer upon the Buyer's request.
1.4.3.2 The Seller reserves the right to effect deliveries from distribution centers other than the US Spares Center or the Airbus Material Center, which may include the Regional Satellite Stores or any other production or Supplier's facilities.
1.5 Customer Order Desk The Seller operates a "Customer Order Desk", the main functions of which are:
Management of order entries for all priorities, including Aircraft On Ground (i) ("AOG");
(ii) Management of order changes and cancellations;
(iii) Administration of Buyer's routing instructions;
(iv) Management of Material returns;
(v) Clarification of delivery discrepancies;
(vi) Issuance of credit and debt notes.
The Buyer hereby agrees to communicate its orders for Material to the Customer Order Desk either in electronic format (SPEC 2000) or via the Internet.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit O July 2011 3 EXHIBIT O 1.7 Commitments of the Buyer
1.7.1 During the Term, the Buyer agrees to purchase from
(a) the Seller, AACS or the Seller's licensee(s) the Seller Parts required for the Buyer's own needs; or
operators or purchase Seller Parts from said operators or from distributors, provided said Seller Parts were originally designed by the Seller and (b) manufactured by the Seller or its licensees.
1.7.2 Subject to the express further agreement of the Seller in relation to Article 1.7.2 (ii) below, the Buyer may manufacture, exclusively for its own use parts, equivalent to Seller Parts, provided, however, that it may only do so in one of the following circumstances:
(i) after expiration of the Term, the concerned Seller Parts are out of stock;
(ii) Seller Parts are needed to perform confirmed AOG repairs upon any Aircraft delivered under the Agreement and are not available from the Seller, its licensees or other approved sources within a lead time shorter than or equal to the time in which the Buyer can manufacture such parts;
(iii) when a Seller Part is identified as "Local Manufacture" in the Illustrated Parts Catalog.
1.7.3.1 The rights granted to the Buyer in Article 1.7.2 will not in any way be construed as a license, nor will they in any way obligate the Buyer to pay any license fee or royalty, nor will they in any way be construed to affect the rights of third parties.
1.7.3.2 If the Buyer manufactures any parts pursuant to Article 1.7.2, the Buyer will be solely responsible for such manufacturing and any use made of the manufactured parts, and the confirmation given by the Seller under Article 1.7.2 will not be construed as express or implicit approval either of the Buyer in its capacity as manufacturer of such parts or of the manufactured parts. The Buyer will also be solely responsible to ensure that such manufacturing is performed in accordance with the relevant procedures and Aviation Authority requirements. THE SELLER WILL NOT BE LIABLE FOR, AND THE BUYER WILL INDEMNIFY THE SELLER AGAINST, ANY CLAIMS FROM ANY THIRD PARTIES FOR LOSSES DUE TO ANY DEFECT OR NON-CONFORMITY OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH ANY MANUFACTURING OF ANY PART UNDERTAKEN BY THE BUYER UNDER ARTICLE 1.7.2 OR ANY OTHER ACTIONS UNDERTAKEN BY THE BUYER UNDER THIS EXHIBIT O WHETHER SUCH CLAIM IS ASSERTED IN CONTRACT OR IN TORT, OR IS PREMISED ON ALLEGED, ACTUAL, IMPUTED, ORDINARY OR INTENTIONAL ACTS OR OMISSIONS OF THE BUYER.
1.7.3.3 The Buyer will allocate its own part number to any part manufactured in accordance with Article 1.7.2. The Buyer will under no circumstances be allowed to use the Airbus part number of the Seller Part to which such manufactured part is intended to be equivalent. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit O July 2011 4 EXHIBIT O 1.7.3.4 The Buyer will not be entitled to sell or lend any part manufactured under the provisions of Article 1.7.3 to any third party.
2. INITIAL PROVISIONING 2.1 Period The initial provisioning period commences with the Pre-Provisioning Meeting, as defined in Article 2.2.1, and expires on the ninetieth (90th) day after Delivery of the last Aircraft firmly ordered under the Agreement as of the date hereof ("Initial Provisioning Period").
2.2 Pre-Provisioning Meeting 2.2.1 The Seller will organize a pre-provisioning meeting at AACS Spares Center or at the Airbus Material Center, or at any other agreed location, for the purpose of setting an acceptable schedule and working procedure for the preparation of the initial issue of the Provisioning Data and the Initial Provisioning Conference referred to in Articles 2.3 and 2.4 below (the "Pre-Provisioning Meeting"). During the Pre-Provisioning Meeting, the Seller will familiarize the Buyer with the provisioning processes, methods and formulae of calculation and documentation.
2.2.2 The Pre-Provisioning Meeting will take place on an agreed date that is no later than nine (9) months prior to Scheduled Delivery Month of the first Aircraft, allowing a minimum preparation time of eight (8) weeks for the Initial Provisioning Conference.
2.3 Initial Provisioning Conference The Seller will organize an initial provisioning conference at the AACS Spares Center or at the Airbus Material Center (the "Initial Provisioning Conference"), the purpose of which will be to agree the material scope and working procedures to accomplish the initial provisioning of Material (the "Initial Provisioning"). The Initial Provisioning Conference will take place at the earliest eight (8) weeks after Aircraft Manufacturer Serial Number allocation or Contractual Definition Freeze, whichever occurs last and latest six (6) months before the Scheduled Delivery Month of the first applicable Aircraft to be delivered to such Operator.
2.4 Provisioning Data 2.4.1 Provisioning data generally in accordance with SPEC 2000, Chapter 1, for Material described in Articles 1.2.1 (i) through 1.2.1 (iii) ("Provisioning Data") will be supplied by the Seller to the Buyer in the English language, in a format and timeframe to be agreed during the Pre- Provisioning Meeting.
2.4.1.1 Unless a longer revision cycle has been agreed, the Provisioning Data will be revised every ninety (90) days up to the end of the Initial Provisioning Period.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit O July 2011 5 EXHIBIT O 2.4.1.2 The Seller will ensure that Provisioning Data is provided to the Buyer in time to permit the Buyer to perform any necessary evaluation and to place orders in a timely manner.
2.4.1.3 Provisioning Data generated by the Seller will comply with the configuration of the Aircraft as documented three (3) months before the date of issue.
This provision will not cover:
(i) Buyer modifications not known to the Seller,
(ii) other modifications not approved by the Seller's Aviation Authorities.
2.4.2 Supplier-Supplied Data Provisioning Data relating to each Supplier Part (both initial issue and revisions) will be produced by Supplier thereof and may be delivered to the Buyer either by the Seller or such Supplier. It is agreed and understood by the Buyer that the Seller will not be responsible for the substance, accuracy or quality of such data. Such Provisioning Data will be provided in either SPEC 2000 format or any other agreed format.
2.4.3 Supplementary Data The Seller will provide the Buyer with data supplementary to the Provisioning Data, comprising local manufacture tables, ground support equipment, specific-to-type tools and a pool item candidate list.
2.5 Commercial Offer Upon the Buyer's request, the Seller will submit a commercial offer for Initial Provisioning Material.
2.6 Delivery of Initial Provisioning Material 2.6.1 During the Initial Provisioning Period, Initial Provisioning Material will conform to the latest known configuration standard of the Aircraft for which such Material is intended as reflected in the Provisioning Data transmitted by the Seller.
2.6.2 The delivery of Initial Provisioning Material will take place according to the conditions specified in the commercial offer mentioned in Article 2.5.
2.6.3 All Initial Provisioning Material will be packaged in accordance with ATA 300 Specification.
2.7 Buy-Back Period and Buy-Back of Initial Provisioning Surplus Material
a) The "Buy-Back Period" is defined as the period starting one (1) year after and ending four (4) years after Delivery of the first Aircraft to the Buyer.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit O July 2011 6 EXHIBIT O b) At any time during the Buy-Back Period, the Buyer will have the right to return to the Seller solely Seller Parts as per Article 1.2.1 (i) or Supplier Parts as per Article 1.2.1 (ii), subject to the Buyer providing sufficient evidence that such Material fulfils the conditions defined hereunder.
c) Material as set forth in Article b) above will be eligible for Buy-Back provided:
i) The Material is unused and undamaged and is accompanied by the Seller's original documentation (tag, certificates);
ii) The Seller provided the Buyer with an Initial Provisioning recommendation for such Material at the time of the Initial Provisioning Conference based upon a maximum protection level of ninety-six percent (96 %) and a maximum transit time of twenty (20) days;
iii) The quantity procured by the Buyer was not in excess of the provisioning quantities recommended by the Seller;
iv) The Material was purchased for Initial Provisioning purposes by the Buyer directly from the Seller;
v) The Material ordered by the Buyer is identified as an Initial Provisioning order and was placed on routine, and not expedite, basis;
vi) The Material and its components have at least ninety percent (90 %) shelf life remaining when returned;
vii) The Material is returned to the Seller by the Buyer and has effectively been received and accepted by the Seller before the end of the Buy-Back Period.
d) If any Material is accepted for Buy-Back, the Seller will credit the Buyer as follows:
- For Seller Parts as per Article 1.2.1 (i) the Seller will credit the Buyer one hundred percent (100%) of the price originally paid;
- For Supplier Parts as per Article 1.2.1 (ii) the Seller will credit the Buyer one hundred percent (100 %) of the original Supplier list price valid at the time of order placement.
e) In the event of the Buyer electing to procure Material in excess of the Seller's recommendation, the Buyer will notify the Seller thereof in writing, with due reference to the present Article 2.7. The Seller's acknowledgement and agreement in writing will be necessary before any Material in excess of the Seller's Initial Provisioning recommendation will be considered for Buy-Back.
f) It is expressly understood and agreed that all credits described in Article 2.7 (d) will be provided by the Seller to the Buyer exclusively by means of credit notes to the Buyer's Material account with the Seller.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit O July 2011 7 EXHIBIT O g) Transportation costs for the agreed return of Material under this Article 2.7 will be borne by the Buyer.
3. OTHER MATERIAL SUPPORT 3.1 As of the date hereof, the Seller currently offers various types of parts support through the Customer Services Catalog on the terms and conditions set forth therein from time to time, including, but not limited to the lease of certain Seller Parts, the repair of Seller Parts and the sale or lease of ground support equipment and specific-to-type tools.
4 WARRANTIES
4.1 Seller Parts Subject to the limitations and conditions as hereinafter provided, the Seller warrants to the Buyer that all Seller Parts, sold under this Exhibit O will at delivery to the Buyer:
(i) be free from defects in material.
be free from defects in workmanship, including without limitation processes of (ii) manufacture.
be free from defects arising from failure to conform to the applicable (iii) specification for such part.
4.1.1 Warranty Period 4.1.1.1 The warranty period for Seller Parts is thirty six (36) months for new Seller Parts and twelve (12) months for used Seller Parts from delivery of such parts to the Buyer.
4.1.1.2 Whenever any Seller Part that contains a defect for which the Seller is liable under Article 4.1 has been corrected, replaced or repaired pursuant to the terms of this Article 4.1, the period of the Seller's warranty with respect to such corrected, repaired or replacement Seller Part, as the case may be, will be the remaining portion of the original warranty period or twelve (12) months, whichever is longer.
4.1.2 Buyer's Remedy and Seller's Obligation The Buyer's remedy and Seller's obligation and liability under this Article 4.1 are limited to the repair, replacement or correction, at the Seller's expense and option, of any Seller Part that is defective. The Seller may alternatively furnish to the Buyer's account with the Seller a credit equal to the price such Seller Part. The provisions of Clauses 12.1.5 through 12.1.10 of the Agreement will apply to claims made pursuant to this Article 4.1.
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit O July 2011 8 EXHIBIT O 4.2 Supplier Parts With respect to Supplier Parts to be delivered to the Buyer under this Exhibit O, the Seller agrees to transfer to the Buyer the benefit of any warranties, which the Seller may have obtained from the corresponding Suppliers and the Buyer hereby agrees that it will accept the same.
4.3 Waiver, Release and Renunciation THIS ARTICLE 4 (INCLUDING ITS SUBPARTS) SETS FORTH THE EXCLUSIVE WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF THE SELLER, AND THE EXCLUSIVE REMEDIES AVAILABLE TO THE BUYER, WHETHER UNDER THIS AGREEMENT OR OTHERWISE, ARISING FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY SELLER PART, MATERIAL, LEASED PART, OR SERVICES DELIVERED BY THE SELLER UNDER THIS AGREEMENT. THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND REMEDIES IN THIS ARTICLE 4 ARE ADEQUATE AND SUFFICIENT TO PROTECT THE BUYER FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN THE SELLER PARTS, MATERIALS, LEASED PARTS, OR SERVICES SUPPLIED UNDER THIS AGREEMENT. THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS, GUARANTEES AND LIABILITIES OF THE SELLER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER AND ITS SUPPLIERS, WHETHER EXPRESS OR IMPLIED BY CONTRACT, TORT, OR STATUTORY LAW OR OTHERWISE, WITH RESPECT TO ANY NONCONFORMITY OR DEFECT OR PROBLEM OF ANY KIND IN ANY SELLER PART, MATERIAL, LEASED PART, OR SERVICES DELIVERED BY THE SELLER UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO:
(1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR ANY GENERAL OR PARTICULAR PURPOSE;
(2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO, ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE, INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY OR FAILURE TO WARN;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE;
C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit O July 2011 9 EXHIBIT O (6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR LOCAL STATUTE OR AGENCY;
(7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THE AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THE AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
THE WARRANTIES PROVIDED BY THIS AGREEMENT WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY THE SELLER AND THE BUYER. IN THE EVENT THAT ANY PROVISION OF THIS ARTICLE 4 SHOULD FOR ANY REASON BE HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS ARTICLE 4 WILL REMAIN IN FULL FORCE AND EFFECT. FOR THE PURPOSES OF THIS ARTICLE 4, THE "SELLER" WILL BE UNDERSTOOD TO INCLUDE THE SELLER, ANY OF ITS SUPPLIERS, SUBCONTRACTORS, AND AFFILIATES AND ANY OF THEIR RESPECTIVE INSURERS.
4.4 Duplicate Remedies The remedies provided to the Buyer under this Article 4 as to any part thereof are mutually exclusive and not cumulative. The Buyer will be entitled to the remedy that provides the maximum benefit to it, as the Buyer may elect, pursuant to the terms and conditions of this Article 4 for any particular defect for which remedies are provided under this Article 4; provided, however, that the Buyer will not be entitled to elect a remedy under one part of this Article 4that constitutes a duplication of any remedy elected by it under any other part hereof for the same defect. The Buyer's rights and remedies herein for the nonperformance of any obligations or liabilities of the Seller arising under these warranties will be in monetary damages limited to the amount the Buyer expends in procuring a correction or replacement for any covered part subject to a defect or nonperformance covered by this Article 4, and the Buyer will not have any right to require specific performance by the Seller.
5. COMMERCIAL CONDITIONS
5.1 Delivery Terms C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit O July 2011 10 EXHIBIT O All Material prices are quoted on the basis of Free Carrier (FCA) delivery terms, without regard to the place from which such Material is shipped. The term "Free Carrier (FCA)" is as defined by publication n°560 of the International Chamber of Commerce, published in January 2000.
5.2 Payment Procedures and Conditions All payments under this Exhibit O will be made in accordance with the terms and conditions set forth in the then current Customer Services e- Catalog.
5.3 Title Title to any Material purchased under this Exhibit O will remain with the Seller until full payment of the invoices and interest thereon, if any, has been received by the Seller. The Buyer hereby undertakes that Material title to which has not passed to the Buyer, will be kept free from any debenture or mortgage or any similar charge or claim in favour of any third party.
5.4 Cessation of Deliveries The Seller has the right to restrict, stop or otherwise suspend deliveries if the Buyer fails to meet its obligations set forth in this Exhibit O.
6. EXCUSABLE DELAY Clauses 10.1 and 10.2 of the Agreement will apply, mutatis mutandis, to all Material support and services provided under this Exhibit O.
7. TERMINATION OF MATERIAL PROCUREMENT COMMITMENTS 7.1 If the Agreement is terminated with respect to any Aircraft, then the rights and obligations of the parties with respect to undelivered spare parts, services, data or other items to be purchased hereunder and which are applicable to those Aircraft for which the Agreement has been terminated will also be terminated. Unused Material in excess of the Buyer's requirements due to such termination may be repurchased by the Seller, at the Seller's option, as provided in Article 2.7.
8. INCONSISTENCY In the event of any inconsistency between this Exhibit O and the Customer Services Catalog or any order placed by the Buyer, this Exhibit O will prevail to the extent of such inconsistency. C.I.T. Leasing Corporation A320 NEO Family Purchase Agreement - Exhibit O July 2011 11 Letter Agreement n°1 LETTER AGREEMENT NO. 1 As of July 28, 2011 C.I.T. Leasing Corporation
11 West 42nd Street
12th floor
New York, New York 10036
USA Re: *** Dear Sirs C.I.T. Leasing Corporation, Inc., (the "Buyer"), and AIRBUS, S.A.S. (the "Seller"), have entered into an Airbus A320 NEO Family Aircraft Purchase Agreement dated as of even date herewith (the "Agreement"), which covers, among other things, the sale by the Seller and the purchase by the Buyer of certain Aircraft. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 1 (the "Letter Agreement") certain additional terms and conditions regarding the sale of the Aircraft. The terms "herein," "hereof" and "hereunder" and words of similar import refer to this Letter Agreement. Capitalized terms used herein and not otherwise defined in this Letter Agreement shall have the meanings assigned thereto in the Agreement. Except as provided by sub-Clause 22.5 of the Agreement, both parties agree that this Letter Agreement shall constitute an integral, nonseverable part of the Agreement, that the provisions of the Agreement are hereby incorporated herein by reference, and that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement shall govern. C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 1July 2011 1 Letter Agreement n°1 CONTENT: ***
4. ASSIGNMENT Except as permitted by Clause 19 of the Agreement, this Letter Agreement and the rights and obligations of the parties hereunder shall not be assigned or transferred by either party in any manner without the prior written consent of the other party, and any attempted assignment or transfer in contravention of the provisions of this Clause 4 shall be void and of no force or effect. C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 1July 2011 2 Letter Agreement n°1 If the foregoing correctly sets forth our understanding, please execute the original and one (1) copy hereof in the space provided below and return a copy to the Seller. Very truly yours,
AIRBUS, S.A.S.
By:
Its:
Date: Accepted and Agreed,
C.I.T. Leasing Corporation
By:
Its: C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 1July 2011 3 Letter Agreement n°1 SCHEDULE A: ***
C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 1July 2011 4 Letter Agreement n°2 LETTER AGREEMENT NO. 2 As of July 28, 2011 C.I.T. Leasing Corporation
11 West 42nd Street
12th floor
New York, New York 10036
USA Re: *** Dear Sirs C.I.T. Leasing Corporation, Inc., (the "Buyer"), and AIRBUS S.A.S. (the "Seller"), have entered into an Airbus A320 NEO Family Aircraft Purchase Agreement dated as of even date herewith (the "Agreement"), which covers, among other things, the sale by the Seller and the purchase by the Buyer of certain Aircraft. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 2 (the "Letter Agreement") certain additional terms and conditions regarding the sale of the Aircraft. The terms "herein," "hereof" and "hereunder" and words of similar import refer to this Letter Agreement. Capitalized terms used herein and not otherwise defined in this Letter Agreement shall have the meanings assigned thereto in the Agreement. Except as provided by sub-Clause 22.5 of the Agreement, both parties agree that this Letter Agreement shall constitute an integral, non-severable part of the Agreement, that the provisions of the Agreement are hereby incorporated herein by reference, and that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement shall govern. C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 2 July 2011 1 Letter Agreement n°2 CONTENT: ***
3. ASSIGNMENT Except as permitted by Clause 19 of the Agreement, this Letter Agreement and the rights and obligations of the parties hereunder shall not be assigned or transferred by either party in any manner without the prior written consent of the other party, and any attempted assignment or transfer in contravention of the provisions of this Clause 3 shall be void and of no force or effect. C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 2 July 2011 2 Letter Agreement n°2 If the foregoing correctly sets forth our understanding, please execute the original and one (1) copy hereof in the space provided below and return a copy to the Seller. Very truly yours,
AIRBUS S.A.S
By:
Its:
Date: Accepted and Agreed,
C.I.T. Leasing Corporation
By:
Its: C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 2 July 2011 3 Letter Agreement n°3 LETTER AGREEMENT NO. 3 As of July 28, 2011 C.I.T. Leasing Corporation
11 West 42nd Street
12th floor
New York, New York 10036
USA Re: ***
Dear Sir: C.I.T. Leasing Corporation, Inc. (the "Buyer"), and AIRBUS, S.A.S. (the "Seller"), have entered into an A320 NEO Family Aircraft Purchase Agreement dated as of even date herewith (the "Agreement"), which covers, among other things, the sale by the Seller and the purchase by the Buyer of certain Aircraft. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 3 (the "Letter Agreement") certain additional terms and conditions regarding the sale of the Aircraft. The terms "herein," "hereof" and "hereunder" and words of similar import refer to this Letter Agreement. Capitalized terms used herein and not otherwise defined in this Letter Agreement shall have the meanings assigned thereto in the Agreement. Except as provided by sub-Clause 22.5 of the Agreement, both parties agree that this Letter Agreement shall constitute an integral, nonseverable part of the Agreement, that the provisions of the Agreement are hereby incorporated herein by reference, and that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement shall govern. C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 3 July 2011 1 Letter Agreement n°3 *** 13. ASSIGNMENT Except as permitted by Clause 19 of the Agreement, this Letter Agreement and the rights and obligations of the parties hereunder shall not be assigned or transferred by either party in any manner without the prior written consent of the other party, and any attempted assignment or transfer in contravention of the provisions of this Clause 13 shall be void and of no force or effect. C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 3 July 2011 2 Letter Agreement n°3 If the foregoing correctly sets forth our understanding, please execute the original and one (1) copy hereof in the space provided below and return a copy to the Seller. Very truly yours,
AIRBUS S.A.S
By:
Its:
Date: Accepted and Agreed,
C.I.T. Leasing Corporation
By:
Its: C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 3 July 2011 3 LETTER AGREEMENT NO. 4 As of July 28, 2011 C.I.T. Leasing Corporation
11 West 42nd Street
12th floor
New York, New York 10036
USA Re: ***
Dear Sir: C.I.T. Leasing Corporation, Inc. (the "Buyer"), and AIRBUS S.A.S (the "Seller"), have entered into an A320 NEO Family Aircraft Purchase Agreement dated as of even date herewith (the "Agreement"), which covers, among other things, the sale by the Seller and the purchase by the Buyer of certain Aircraft. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 4 (the "Letter Agreement") certain additional terms and conditions regarding the sale of the Aircraft. The terms "herein," "hereof" and "hereunder" and words of similar import refer to this Letter Agreement. Capitalized terms used herein and not otherwise defined in this Letter Agreement shall have the meanings assigned thereto in the Agreement. Except as provided by sub-Clause 22.5 of the Agreement, both parties agree that this Letter Agreement shall constitute an integral, nonseverable part of the Agreement, that the provisions of the Agreement are hereby incorporated herein by reference, and that, except if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement shall govern. C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 4 July 2011 1 *** C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 4 July 2011 2 If the foregoing correctly sets forth our understanding, please execute the original and one (1) copy hereof in the space provided below and return a copy to the Seller. Very truly yours,
AIRBUS S.A.S
By:
Its:
Date: Accepted and Agreed,
C.I.T. Leasing Corporation
By:
Its: C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 4 July 2011 3 LETTER AGREEMENT NO. 5 As of July 28, 2011 C.I.T. Leasing Corporation
11 West 42nd Street
12th floor
New York, New York 10036
USA Re: ***
Dear Sir: C.I.T Leasing Corporation, Inc. (the "Buyer"), and AIRBUS S.A.SL. (the "Seller"), have entered into an A320 NEO Family Aircraft Purchase Agreement dated as of even date herewith (the "Agreement"), which covers, among other things, the sale by the Seller and the purchase by the Buyer of certain Aircraft. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 5 (the "Letter Agreement") certain additional terms and conditions regarding the sale of the Aircraft. The terms "herein," "hereof" and "hereunder" and words of similar import refer to this Letter Agreement. Capitalized terms used herein and not otherwise defined in this Letter Agreement shall have the meanings assigned thereto in the Agreement. Except as provided by sub-Clause 22.5 of the Agreement, both parties agree that this Letter Agreement shall constitute an integral, nonseverable part of the Agreement, that the provisions of the Agreement are hereby incorporated herein by reference, and that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement shall govern. C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 5 July 2011 1 Letter Agreement n°5 *** 6. ASSIGNMENT Except as permitted by Clause 19 of the Agreement, this Letter Agreement and the rights and obligations of the parties hereunder shall not be assigned or transferred by either party in any manner without the prior written consent of the other party, and any attempted assignment or transfer in contravention of the provisions of this Clause 5 shall be void and of no force or effect. C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 5 July 2011 2 Letter Agreement n°5 If the foregoing correctly sets forth our understanding, please execute the original and one (1) copy hereof in the space provided below and return a copy to the Seller. Very truly yours,
AIRBUS S.A.S
By:
Its:
Date: Accepted and Agreed,
C.I.T. Leasing Corporation
By:
Its: C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 5 July 2011 3 LETTER AGREEMENT NO. 6 As of July 28, 2011 C.I.T. Leasing Corporation
11 West 42nd Street
12th floor
New York, New York 10036
USA Re: ***
Dear Sir: C.I.T. Leasing Corporation, Inc. (the "Buyer"), and AIRBUS S.A.S (the "Seller"), have entered into an AirbusA320 Family and A350 Aircraft Purchase Agreement dated as of even date herewith (the "Agreement"), which covers, among other things, the sale by the Seller and the purchase by the Buyer of certain Aircraft. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 6 (the "Letter Agreement") certain additional terms and conditions regarding the sale of the Aircraft. The terms "herein," "hereof" and "hereunder" and words of similar import refer to this Letter Agreement. Capitalized terms used herein and not otherwise defined in this Letter Agreement shall have the meanings assigned thereto in the Agreement. Except as provided by sub-Clause 22.5 of the Agreement, both parties agree that this Letter Agreement shall constitute an integral, nonseverable part of the Agreement, that the provisions of the Agreement are hereby incorporated herein by reference, and that if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement shall govern. C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 6 July 2011 1 Letter Agreement n°6 *** 4. ASSIGNMENT Except as permitted by Clause 19 of the Agreement, this Letter Agreement and the rights and obligations of the parties hereunder shall not be assigned or transferred by either party in any manner without the prior written consent of the other party, and any attempted assignment or transfer in contravention of the provisions of this Clause 4 shall be void and of no force or effect. C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 6 July 2011 2 Letter Agreement n°6 If the foregoing correctly sets forth our understanding, please execute the original and one (1) copy hereof in the space provided below and return a copy to the Seller. Very truly yours,
AIRBUS S.A.S
By:
Its:
Date: Accepted and Agreed,
C.I.T. Leasing Corporation
By:
Its: C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 6 July 2011 3 Letter Agreement n°7 LETTER AGREEMENT NO. 7 As of July 28, 2011 C.I.T. Leasing Corporation
11 West 42nd Street
12th floor
New York, New York 10036
USA Re: ***
Dear Sir: C.I.T. Leasing Corporation, Inc. (the "Buyer"), and AIRBUS S.A.S (the "Seller"), have entered into an A320 NEO Family Aircraft Purchase Agreement dated as of even date herewith (the "Agreement"), which covers, among other things, the sale by the Seller and the purchase by the Buyer of certain Aircraft. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 7 (the "Letter Agreement") certain additional terms and conditions regarding the sale of the Aircraft. The terms "herein," "hereof" and "hereunder" and words of similar import refer to this Letter Agreement. Capitalized terms used herein and not otherwise defined in this Letter Agreement shall have the meanings assigned thereto in the Agreement. Except as provided by sub-Clause 22.5 of the Agreement, both parties agree that this Letter Agreement shall constitute an integral, nonseverable part of the Agreement, that the provisions of the Agreement are hereby incorporated herein by reference, and that, except if the Agreement and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement shall govern. C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 7 July 2011 1 Letter Agreement n°7 *** 6. ASSIGNMENT Except as permitted by Clause 19 of the Agreement, this Letter Agreement and the rights and obligations of the parties hereunder shall not be assigned or transferred by either party in any manner without the prior written consent of the other party, and any attempted assignment or transfer in contravention of the provisions of this Clause 6 shall be void and of no force or effect. C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 7 July 2011 2 Letter Agreement n°7 If the foregoing correctly sets forth our understanding, please execute the original and one (1) copy hereof in the space provided below and return a copy to the Seller. Very truly yours,
AIRBUS S.A.S
By:
Its:
Date: Accepted and Agreed,
C.I.T. Leasing Corporation
By:
Its: C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 7 July 2011 3 Letter Agreement n°8 LETTER AGREEMENT NO. 8 As of July 28, 2011 C.I.T. Leasing Corporation
11 West 42nd Street
12th floor
New York, New York 10036
USA Re: ***
Gentlemen, The CIT Group/Capital Finance Inc. ("the Buyer"), and AIRBUS S.A.S. ("the Seller"), have entered into an Airbus A320 NEO Family Aircraft Purchase Agreement, dated as of even date herewith (the "Agreement"), which covers, among other things, the sale by the Seller and the purchase by the Buyer of certain Aircraft, under the terms and conditions set forth in said Agreement. The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 9 (the "Letter Agreement") certain additional terms and conditions regarding the sale of the Aircraft. Capitalized terms used herein and not otherwise defined in this Letter Agreement will have the meanings assigned thereto in the Agreement. The terms "herein", "hereof" and "hereunder" and words of similar import refer to this Letter Agreement. Both parties agree that this Letter Agreement will constitute an integral, nonseverable part of said Agreement, that the provisions of said Agreement are hereby incorporated herein by reference, and that this Letter Agreement will be governed by the provisions of said Agreement, except that if the Agreement and this Letter Agreement have specific provisions that are inconsistent, the specific provisions contained in this Letter Agreement will govern. C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 8 July 2011 1 Letter Agreement n°8 *** 1 ASSIGNMENT The terms and conditions of this Letter Agreement shall be assignable to the Buyer's operators. The Buyer shall consult the Seller in advance of any such assignment. In consideration of the assignment and subrogation by the Seller of this Letter Agreement in favour of the Buyer in respect of the Seller's rights against and obligations to the Manufacturer under the provisions quoted above, the Buyer hereby accepts such assignment and subrogation and agrees to be bound by all of the terms, conditions and limitations therein contained. The Buyer and Seller recognize and agree that all the provisions of Clause 12 of the Agreement, including without limitation the Waiver, Release and Renunciation and Duplicate Remedies provisions therein contained, shall apply to the foregoing Guarantees, except that if such Clause 12 and this Letter Agreement have specific provisions that are inconsistent, the specific provisions contained in this Letter Agreement will govern.
C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 8 July 2011 2 Letter Agreement n°8 If the foregoing terms and conditions are satisfactory, please indicate your acceptance thereof by signing in the place indicated below. Very truly yours,
AIRBUS S.A.S
By:______
Its:______Agreed and Accepted
C.I.T. Leasing Corporation
By: ______
Its: ______
Date:______C.I.T Leasing Corporation A320 NEO Family Purchase Agreement – LA 8 July 2011 3 EXHIBIT 31.1
CERTIFICATIONS I, John A. Thain, certify that: 1. I have reviewed this quarterly report on Form 10-Q of CIT Group Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: (a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: August 9, 2011
/s/ John A. Thain
John A. Thain Chairman and Chief Executive Officer CIT Group Inc.
EXHIBIT 31.2
CERTIFICATIONS I, Scott T. Parker, certify that: 1. I have reviewed this quarterly report on Form 10-Q of CIT Group Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: (a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: August 9, 2011
/s/ Scott T. Parker
Scott T. Parker Executive Vice President and Chief Financial Officer CIT Group Inc.
EXHIBIT 32.1
Certification Pursuant to Section 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report of CIT Group Inc. ("CIT") on Form 10-Q for the quarter ended June 30, 2011, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, John A. Thain, the Chief Executive Officer of CIT, certify, pursuant to 18 U.S.C. ss.1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that; (i) The Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934; and (ii) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of CIT. Dated: August 9, 2011
/s/ John A. Thain
John A. Thain Chairman and Chief Executive Officer CIT Group Inc. The foregoing certification is being furnished solely pursuant to 18 U.S.C. § 1350 and is not being filed as part of the Report or as a separate disclosure document.
EXHIBIT 32.2
Certification Pursuant to Section 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report of CIT Group Inc. ("CIT") on Form 10-Q for the quarter ended June 30, 2011, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Scott T. Parker, the Chief Financial Officer of CIT, certify, pursuant to 18 U.S.C. ss.1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that; (i) The Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934; and (ii) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of CIT. Dated: August 9, 2011
/s/ Scott T. Parker
Scott T. Parker Executive Vice President and Chief Financial Officer CIT Group Inc. The foregoing certification is being furnished solely pursuant to 18 U.S.C. § 1350 and is not being filed as part of the Report or as a separate disclosure document.