Exhibit 10.1
PURCHASE AGREEMENT
This Purchase Agreement dated as of ____________, ____ (the
"Agreement"), is between THE CIT GROUP SECURITIZATION CORPORATION II, as
purchaser (the "Purchaser"), and THE CIT GROUP/SALES FINANCING, INC., as seller
(the "Seller").
Subject to the terms hereof, the Seller agrees to sell, and the
Purchaser agrees to purchase, the marine installment sales contracts set forth
on Exhibit A (collectively, the "Contracts"), having an aggregate outstanding
principal balance as of ____________, ____ (the "Initial Cut-off Date") of
approximately $___________.
It is the intention of the Seller and the Purchaser that the Purchaser
shall sell the Contracts to CIT Marine Trust ____-_ and shall enter into a Sale
and Servicing Agreement, dated as of the date hereof, with CIT Marine Trust
____-_ and the Seller, pursuant to which _____% Asset Backed Certificates (the
"Certificates"), evidencing ownership interests in the Contracts and Class A
_____% Asset Backed Notes secured by the Contracts, will be issued.
The Purchaser and the Seller wish to prescribe the terms and conditions
of the purchase by the Purchaser of the Contracts and the servicing and
administration of the Contracts.
In consideration of the premises and the mutual agreements hereinafter
set forth, the Purchaser and the Seller agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Certain capitalized terms used in this
Agreement shall have the respective meanings assigned to them in the Sale and
Servicing Agreement. All references in this Purchase Agreement to Articles,
Sections, subsections and exhibits are to the same contained in or attached to
this Purchase Agreement unless otherwise specified.
ARTICLE II
SALE AND CONVEYANCE OF CONTRACTS; CONTRACT FILES
SECTION 2.01. Sale and Conveyance of Contracts. On the Closing Date,
subject to the terms and conditions hereof, the Seller shall sell, transfer,
assign absolutely, set over and otherwise convey to the Purchaser (i) all the
right, title and interest of the Seller in and to the Initial Contracts and all
the rights, benefits, and obligations arising from and in connection with each
Initial Contract, (ii) the security interests in the Initial Financed Boats
granted by the Obligors pursuant to the Initial Contracts, (iii) all payments
received by the Seller on or with
respect to the Initial Contracts on or after the Initial Cut-off Date (exclusive
of payments with respect to Post Cut-off Date Insurance Add-Ons), (iv) the
interest of the Seller in any Initial Financed Boat (including any right to
receive future Net Liquidation Proceeds) that secures the Initial Contracts and
that shall have been repossessed by the Servicer by or on behalf of the Trust;
(v) all rights of the Seller to proceeds of Insurance Policies covering the
Obligors and the Initial Contracts, (vi) the proceeds from any Servicer's Errors
and Omissions Protection Policy, any fidelity bond and any blanket hazard
policy, to the extent such proceeds relate to any Initial Financed Boat, (vii)
all rights of recourse against any cosigner or under any personal guarantee with
respect to the Initial Contracts (other than any right as against a Dealer under
a Dealer Agreement), (viii) all amounts held for the Trust in the Collection
Account, (ix) all amounts held for the Trust in the Pre-Funding Account, (x) all
amounts held for the Trust in the Capitalized Interest Account, (xi) all
proceeds in any way derived from any of the foregoing items, and (xii) all
documents contained or required to be contained in the Contract Files relating
to the Initial Contracts. The parties intend and agree that the conveyance of
the Seller's right, title and interest in and to the Initial Contracts pursuant
to this Agreement shall constitute an absolute sale.
The Seller hereby declares and covenants that it shall at no time have
any legal, equitable or beneficial interest in, or any right, including without
limitation any reversionary or offset right, to the Collection Account, the
Pre-Funding Account, the Capitalized Interest Account and the Cash Collateral
Account, and that, in the event it receives any of the same, it shall hold same
in trust for the benefit of the Trust on behalf of the Securityholders and shall
immediately endorse over to the Trust any such amount it receives.
SECTION 2.02. Purchase Price; Payments on the Contracts.
(a) The purchase price for the Contracts shall be an amount
equal to $___________. Such purchase price shall be payable in
immediately available funds on the Closing Date.
(b) The Purchaser shall be entitled to all payments of
principal and interest received on or after the Initial Cut-off Date.
All payments of principal and interest received before the Initial
Cut-off Date shall belong to the Seller. The Seller shall hold in trust
for the Purchaser and shall promptly remit to the Purchaser any
payments on the Contracts received by the Seller that belong to the
Purchaser under the terms of this Agreement.
SECTION 2.03. Conditions to Sale of Contracts. The Purchaser's
obligations hereunder are subject to the following conditions:
(a) The Purchaser shall have received (i) the Sale and
Servicing Agreement executed by all the parties thereto, (ii) all
documents required by the Sale and Servicing Agreement and (iii) such
other opinions and documents as the Purchaser may reasonably require in
connection with the purchase of the Contracts hereunder or the sale of
the Notes and Certificates;
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(b) The representations and warranties of the Seller and the
Servicer made in the Sale and Servicing Agreement shall be true and
correct on the Closing Date; and
(c) The Purchaser shall have received from counsel to the
Seller a letter stating that the Purchaser may rely on such counsel's
opinion delivered pursuant to the Sale and Servicing Agreement and such
counsel's opinions to Xxxxx'x Investors Service, Inc. and Standard and
Poor's Corporation in respect of the sale of the Contracts to the
Purchaser by the Seller, or such opinions may be addressed and
delivered to the Purchaser.
SECTION 2.04. Examination of Files. The Seller will make the Contract
Files with respect to the Initial Contracts available to the Purchaser or its
agent for examination at the Trust's offices or such other location as otherwise
shall be agreed upon by the Purchaser and the Seller.
SECTION 2.05. Transfer of Contracts. Pursuant to the Sale and Servicing
Agreement, the Purchaser will assign all of its right, title and interest in and
to the Contracts to the Trust for the benefit of the Securityholders. The
Purchaser has the right to assign its interest under this Agreement as may be
required to effect the purposes of the Sale and Servicing Agreement, by written
notice to the Seller and without the consent of the Seller, and the assignee
shall succeed to the rights and obligations hereunder of the Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER;
REPURCHASE OF CONTRACTS
SECTION 3.01. Representations and Warranties of the Seller.
(a) The representations and warranties of the Seller contained
in the Sale and Servicing Agreement are incorporated herein, and are
made to the Purchaser on the date hereof, as if set forth herein and as
if made to the Purchaser on the date hereof. The Seller will make such
representations and warranties in the Sale and Servicing Agreement
directly to the Trust and will become obligated in respect of such
representations and warranties pursuant to the Sale and Servicing
Agreement. On the Closing Date, the Seller shall deliver to the
Purchaser an Officers' Certificate, dated the Closing Date, to the
effect that the representations and warranties made in the Sale and
Servicing Agreement by the Seller are true and correct as of the
Closing Date.
(b) It is understood and agreed that the representations and
warranties incorporated by reference in this Agreement by Section
3.01(a) hereof shall remain operative and in full force and effect,
shall survive the transfer and conveyance of the Contracts by the
Seller to the Purchaser and by the Purchaser to the Trust, and shall
inure to the benefit of the Purchaser, the Trust and their successors
and permitted assignees.
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(c) The Seller shall indemnify the Purchaser and the Servicer
and hold the Purchaser and the Servicer harmless against any loss,
penalties, fines, forfeitures, legal fees and related costs, judgments
and other costs and expenses resulting from any claim, demand, defense
or assertion based on or grounded upon, or resulting from, a breach of
the Seller's representations and warranties contained or incorporated
by reference in this Agreement. It is understood and agreed that the
obligation of the Seller set forth in this Section 3.01 to indemnify
the Purchaser and the Servicer as provided in this Section 3.01
constitutes the sole remedy of the Purchaser and the Servicer
respecting a breach of the foregoing representations and warranties.
The Trust shall also have the remedies provided in the Sale and
Servicing Agreement.
(d) Each indemnified party shall give prompt notice to the
Seller of any action commenced against it with respect to which
indemnity may be sought hereunder but failure to so notify an
indemnifying party shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement, unless the
failure to notify materially prejudices the rights and condition of the
Seller. The Seller shall be entitled to participate in any such action,
and to assume the defense thereof, and after notice from the Seller to
an indemnified party of its election to assume the defense thereof, the
Seller will not be liable to such indemnified party under this Section
for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof.
(e) Any cause of action against the Seller or relating to or
arising out of the breach of any representations and warranties made or
incorporated by reference in this Section 3.01 shall accrue as to any
Contract upon (i) discovery of such breach by the Purchaser or the
Servicer or notice thereof by the Seller to the Purchaser and the
Servicer, (ii) failure by the Seller to cure such breach and (iii)
demand upon the Seller by the Purchaser for all amounts payable in
respect of such Contract.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. Amendment. This Agreement may be amended from time to
time by the Seller and the Purchaser by written agreement signed by the Seller
and the Purchaser.
SECTION 4.02. Counterparts. For the purpose of facilitating the
execution of this Agreement as herein provided and for other purposes, this
Agreement may be executed simultaneously in any number of counterparts, each of
which counterparts shall be deemed to be an original, and such counterparts
shall constitute but one and the same instrument.
SECTION 4.03. Termination. The Seller's obligations under this
Agreement shall survive the sale of the Contracts to the Purchaser.
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SECTION 4.04. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
SECTION 4.05. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed by first class mail, postage prepaid, to (i) in the case of the Seller,
The CIT Group/Sales Financing, Inc., 000 XXX Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, Attention: President, or such other address as may hereafter be furnished
to Purchaser in writing by the Seller or (ii) in the case of the Purchaser, The
CIT Group Securitization Corporation II, 000 XXX Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, Attention: President, or such other address as may hereafter be furnished
to the Seller by the Purchaser.
SECTION 4.06. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
SECTION 4.07. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Seller and the Purchaser and their respective
successors and assigns, as may be permitted hereunder.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
THE CIT GROUP SECURITIZATION
CORPORATION II,
as Purchaser
By: ___________________________________
Name:
Title:
THE CIT GROUP/SALES FINANCING, INC.,
as Seller
By: ___________________________________
Name:
Title:
EXHIBIT A
List of Contracts
