Exhibit 1.1
Form of Underwriting Agreement
FORM OF UNDERWRITING AGREEMENT
[UNDERWRITER]
as Representative of
the Several Underwriters (the "Representative")
[Address]
Dear Sirs:
1. Introductory. The CIT Group Securitization Corporation III, a Delaware
corporation (the "Seller") and a wholly-owned limited-purpose finance subsidiary
of The CIT Group Holdings, Inc., a Delaware corporation ("CIT") proposes to
cause CIT Home Equity Loan Trust 19__-_ (the "Trust") to issue and sell
$_________ principal amount of its ____% Asset Backed Certificates (the
"Certificates"). The Certificates are registered under the registration
statement referred to in Section 2(a). The assets of the Trust include, among
other things, a pool of mortgage loans (the "Initial Mortgage Loans") secured by
residential properties financed thereby (the "Initial Mortgaged Properties"),
and certain monies received thereunder on or after ___________, 199_, amounts
deposited in the Pre-Funding Account and Capitalized Interest Account the right
to receive payments under certain circumstances from funds deposited in the Cash
Collateral Account pursuant to the Cash Collateral Agreement to be dated as of
_______, 199_ (the "Cash Collateral Agreement") between the Trust, the Trustee,
the Master Servicer and [The Dai-Ichi Kangyo Bank, Limited, New York Branch]
(the "Cash Collateral Depositor") and the Pooling and Servicing Agreement (as
defined below), additional mortgage loans (the "Subsequent Mortgage Loans;" and
together with the Initial Mortgage Loans, the "Mortgage Loans") secured by
residential properties financed thereby (the "Subsequent Mortgaged Properties;"
and together with the Initial Mortgaged Properties, the "Mortgaged Properties")
to be conveyed to the Trust subsequent to the date of issuance of the
Certificates and certain monies received thereunder on or after their respective
subsequent cutoff dates, and the other property and the proceeds thereof to be
conveyed to the Trust pursuant to the Pooling and Servicing Agreement to be
dated as of __________, 199_ (the "Pooling and Servicing Agreement") among the
Seller, the Trustee and The CIT Group/Consumer Finance, Inc., a wholly-owned
subsidiary of CIT, as Master Servicer ("CIT Consumer Finance" or the "Master
Servicer"). The Mortgage Loans and other assets of the Trust will be sold by CIT
Consumer Finance to the Seller pursuant to a Mortgage Loan Purchase Agreement to
be dated as of_________, 199_ (the "Purchase Agreement") between CIT Consumer
Finance and the Seller, and finally by the Seller to the Trust pursuant to the
Sale and Servicing Agreement. Certain of the Mortgage Loans and other property
sold by CIT Consumer Finance to the Seller will first be purchased by CIT
Consumer Finance from The CIT Group/Sales Financing, Inc. ("CITSF") pursuant to
a Mortgage Loan Purchase Agreement to be dated as of _________, 199_ (the "CITSF
Purchase Agreement") between CITSF and CIT Consumer Finance. The Master Servicer
will service the Mortgage Loans on behalf of the Trust pursuant to the Pooling
and Servicing Agreement. The Certificates, each representing a fractional
undivided interest in the Trust, will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings given them in the Pooling and Servicing Agreement.
The Seller and CIT Consumer Finance hereby agree with the several
Underwriters named in Schedule I hereto (the "Underwriters") as follows:
2. Representations and Warranties of the Seller and CIT Consumer Finance.
Each of the Seller and CIT Consumer Finance, jointly and severally, represents
and warrants to, and agrees with, the Underwriters, as of the date hereof and as
of the date of the purchase and sale of the Certificates pursuant to Section 3
hereof (the "Closing Date") that:
(a) A registration statement on Form S-3 (No. 333 - ______) relating to the
Certificates, including a form of prospectus and prospectus supplement, has been
filed with the Securities and Exchange Commission (the "Commission") and either
(i) has been declared effective under the Securities Act of 1933, as amended
(the "Act"), and is not proposed to be amended or (ii) is proposed to be amended
by amendment or post-effective amendment. If the Seller does not propose to
amend such registration statement and if any post-effective amendment to such
registration statement has been filed with the Commission prior to the execution
and delivery of this Agreement, the most recent such amendment has been declared
effective by the Commission. For purposes of this Agreement, "Effective Time"
means (i) if the Seller has advised the Representative that it does not propose
to amend such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto (if
any) filed prior to the execution and delivery of this Agreement, was declared
effective by the Commission, or (ii) if the Seller has advised the
Representative that it proposes to file an amendment or post-effective amendment
to such registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. "Effective Date" means the date
of the Effective Time. Such registration statement, as amended at the Effective
Time, including all material incorporated by reference therein and including all
information (if any) deemed to be a part of such registration statement as of
the Effective Time pursuant to Rule 430A(b) under the Act, is hereinafter
referred to as the "Registration Statement," and the form of prospectus and
prospectus supplement relating to the Certificates, as first filed with the
Commission pursuant to and in accordance with Rule 415 ("Rule 415") under the
Act or (if no such filing is required) as included in the Registration
Statement, including all material incorporated by reference in such prospectus
and prospectus supplement is hereinafter referred to as the "Prospectus."
(b) If the Effective Time is prior to the execution and delivery of this
Agreement: (i) on the Effective Date, the Registration Statement conformed in
all respects to the requirements of the Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and the rules and regulations of the
Commission promulgated under the Act and the Trust Indenture Act (the "Rules and
Regulations") and did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and (ii) on the date of this
Agreement, the Registration
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Statement conforms, and at the time of filing of the Prospectus pursuant to Rule
415, the Registration Statement and the Prospectus will conform, in all respects
to the requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading. If the Effective Time is subsequent to the execution and delivery of
this Agreement: (i) on the Effective Date, the Registration Statement and the
Prospectus will conform in all material respects to the requirements of the Act,
the Trust Indenture Act and the Rules and Regulations, (ii) on the Effective
Date, the Registration Statement will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading and (iii) on
the Effective Date, at the time of filing of the Prospectus pursuant to Rule 415
and at the Closing Date, the Prospectus will not include any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The two preceding
sentences do not apply to statements in or omissions from the Registration
Statement or Prospectus based upon written information furnished to the Seller
by any Underwriter through the Representative specifically for use therein. The
Seller and CIT Consumer Finance acknowledge that any information furnished by
any of the Underwriters specifically for use in the Registration Statement, any
preliminary prospectus or the Prospectus is the Underwriters' Information (as
defined in Section 7(b)).
(c) Each of the Seller, CITSF and CIT Consumer Finance have been duly
organized and are validly existing as corporations in good standing under the
laws of the State of Delaware. Each of the Seller, CIT Consumer Finance and
CITSF have corporate power and authority to own, lease and operate their
respective properties and conduct their respective businesses as described in
the Prospectus and to enter into and perform their obligations under each of the
Basic Documents (as defined below) to which it is a party; and each of the
Seller, CIT Consumer Finance and CITSF is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in which the
character of the business transacted by it or properties owned or leased by it
requires such qualification and in which the failure so to qualify would have a
material adverse effect on its respective business, properties, assets, or
condition (financial or other) or on its ability to perform its obligations
under any of the Basic Documents to which it is a party. "Basic Documents" means
this Agreement, the Pooling and Servicing Agreement, the Cash Collateral
Agreement, the CITSF Purchase Agreement, the Purchase Agreement and the
Certificate Depository Agreement.
(d) The Seller is not in violation of its certificate of incorporation or
by-laws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any Mortgage Loan,
indenture, mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it or its properties may be bound, which default might
result in any material adverse change in the financial condition, earnings,
affairs or business of the Seller or, which might materially and adversely
affect the properties or assets thereof or the ability to perform its
obligations under any of the Basic Documents to which it is a party.
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(e) Neither CIT Consumer Finance nor CITSF is in violation of its
certificate of incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which it is a party or by which it or its
respective properties may be bound, which default might result in any material
adverse change in the financial condition, earnings, affairs or business of
either of CIT Consumer Finance or CITSF or which might materially and adversely
affect the properties or assets thereof or their ability to perform its
obligations under any of the Basic Documents to which it is a party.
(f) The execution and delivery by the Seller on the Closing Date of the
Basic Documents to which it is a party and the performance of its obligations
thereunder will be within its corporate power of the Seller and duly authorized
by all necessary corporate action on the part of the Seller on and as of the
Closing Date; and neither the issuance and sale of the Certificates to the
Underwriters, nor the execution and delivery by the Seller of the Basic
Documents to which it is a party, nor the consummation by the Seller of the
transactions therein contemplated, nor compliance by the Seller with the
provisions hereof or thereof, will materially conflict with or result in a
material breach of, or constitute a material default under, any of the
provisions of any law, governmental rule, regulation, judgment, decree or order
binding on the Seller or its properties or the certificate of incorporation or
by-laws of the Seller or any of the provisions of any indenture, mortgage,
contract or other instrument to which the Seller is a party or by which the
Seller is bound or result in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument.
(g) The execution and delivery by each of CIT Consumer Finance and CITSF on
and as of the Closing Date of any of the Basic Documents to which it is a party
and the performance of its obligations thereunder, will be within the corporate
power of each of CIT Consumer Finance and CITSF and duly authorized by all
necessary corporate action on the part of each of CIT Consumer Finance and CITSF
on and as of the Closing Date; and neither the issuance and sale of the
Certificates to the Underwriters, nor the execution and delivery by CIT Consumer
Finance and CITSF of any of the Basic Documents to which it is a party, nor the
consummation by CIT Consumer Finance and CITSF of the transactions therein
contemplated, nor compliance by CIT Consumer Finance and CITSF with the
provisions hereof or thereof, will materially conflict with or result in a
material breach of, or constitute a material default under, any of the
provisions of any law, governmental rule, regulation, judgment, decree or order
binding on CIT Consumer Finance or CITSF or their respective properties or the
certificate of incorporation or by-laws of CIT Consumer Finance or CITSF, or any
of the provisions of any material indenture, mortgage, contract or other
instrument to which CIT Consumer Finance or CITSF is a party or by which CIT
Consumer Finance or CITSF is bound or result in the creation or imposition of
any lien, charge or encumbrance upon any of their respective property pursuant
to the terms of any such material indenture, mortgage, contract or other
instrument.
(h) This Agreement has been duly authorized, executed and delivered by each
of the Seller and CIT Consumer Finance, and it constitutes a legal, valid and
binding instrument
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enforceable against each of the Seller and CIT Consumer Finance in accordance
with its terms, subject (i) to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors' rights
generally, (ii) as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law) and (iii) as to enforceability with respect to rights of indemnity
thereunder, to limitations of public policy under applicable securities laws.
(i) The Pooling and Servicing Agreement when executed and delivered on the
Closing Date will be duly authorized, executed and delivered by each of the
Seller and CIT Consumer Finance, and will constitute a legal, valid and binding
instrument enforceable against each of the Seller and CIT Consumer Finance in
accordance with its terms, subject (i) to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors' rights
generally and (ii) as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
(j) The Cash Collateral Agreement when executed and delivered on the
Closing Date will be duly authorized, executed and delivered by CIT Consumer
Finance and will constitute a legal, valid and binding instrument enforceable
against CIT Consumer Finance in accordance with its terms, subject (i) to
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally, and (ii) as to enforceability, to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(k) The Certificates, when duly and validly executed by the Trustee or an
agent thereof on behalf of the Trust, authenticated and delivered in accordance
with the Sale and Servicing Agreement, and delivered to and paid for pursuant
hereto will be validly issued and outstanding and entitled to the benefits of
the Pooling and Servicing Agreement.
(l) No filing or registration with, notice to or consent, approval,
authorization or order of any court or governmental authority or agency is
required for the consummation by any of the Seller and CIT Consumer Finance of
the transactions contemplated by any of the Basic Documents to which it is a
party, except such as may be required under the Act, the Rules and Regulations,
or state securities or Blue Sky laws or such other filings, registrations,
notices, consents, approvals, authorizations, orders or permits as have been
obtained.
(m) The Seller, CITSF and CIT Consumer Finance each possess all material
licenses, certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
businesses now operated by them and as described in the Prospectus, other than
such licenses, certificates, authorities or permits the failure of which to
possess would not have a material adverse effect on the interests of the
Certificateholders under the Basic Documents, and neither the Seller, CIT
Consumer Finance nor CITSF have received any notice of proceedings relating to
the revocation or modification of any such license, certificate, authority or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the conduct
of the business, operations, financial condition or income of any of the Seller,
CIT Consumer Finance
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or CITSF or their ability to perform their respective obligations under any of
the Basic Documents to which it is a party.
(n) As of the Closing Date, the Initial Mortgage Loans and related property
will have been duly and validly assigned to the Trustee in accordance with the
Basic Documents; and when such assignment is effected, a duly and validly
perfected transfer of all such Initial Mortgage Loans subject to no prior lien,
mortgage, security interest, pledge, charge or other encumbrance created by the
Seller, CIT Consumer Finance or CITSF will have occurred. As of each Subsequent
Transfer Date, the Subsequent Mortgage Loans and related property conveyed to
the Trust on such date will have been duly and validly assigned to the Trustee
in accordance with the Basic Documents; and when such assignment is effected,
the duly and validly perfected transfer of all such Subsequent Mortgage Loans
will be subject to no prior lien, mortgage, security interest, pledge, charge or
other encumbrance created by the Seller, CIT Consumer Finance or CITSF.
(o) As of the Closing Date, each of the Initial Mortgage Loans will meet
the eligibility criteria described in the Prospectus and as of each Subsequent
Transfer Date, each of the Subsequent Mortgage Loans being transferred to the
Trust will meet the eligibility criteria described in the Prospectus.
(p) The chief executive office of each of the Seller, CIT Consumer Finance
and CITSF is listed opposite its name on Schedule II hereto, which office is the
place where it is "located" for the purposes of Section 9-103(3)(d) of the
Uniform Commercial Code as in effect in the State of New York, and the offices
of each of the Seller, CIT Consumer Finance and CITSF where it keeps its
respective records concerning the Mortgage Loans are also listed in said
Schedule opposite its name and there have been no other such locations during
the four months preceding the Closing Date.
(q) Neither the Seller, CIT Consumer Finance nor the Trust Fund created by
the Sale and Servicing Agreement will be subject to registration as an
"investment company" under the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(r) In connection with the offering of the Certificates in the State of
Florida, the Seller hereby certifies that they have complied with all provisions
of Section 5.17.075 of the Florida Securities and Investor Protection Act.
(s) As of the Closing Date, each of the respective representations and
warranties of the Seller, CIT Consumer Finance and CITSF set forth in the Basic
Documents will be true and correct, and the Underwriters may rely on such
representations and warranties as if they were set forth herein in full.
3. Purchase, Sale and Delivery of Certificates. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Seller agrees to cause the Trust to
sell to the Underwriters, and the Underwriters agree, severally and not jointly,
to purchase from the Trust, the principal amount of
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the Certificates set forth opposite the name of such Underwriter in Schedule
I hereto at a purchase price equal to the Total Price to Seller specified in
Schedule III hereto plus accrued interest at the Pass-Through Rate from
__________, 199_ to (but excluding) the Closing Date. The Seller will deliver
the Certificates to the Representative, for the account of the Underwriters,
against payment of the purchase price by wire transfer of immediately available
funds to the Seller, or to such bank as may be designated by the Seller, at the
office of Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
on __________, 199_ at 10:00 a.m., New York City time, or at such other time not
later than seven full business days thereafter as the Representative and the
Seller determine, such time being herein referred to as the "Closing Date." The
Certificates to be so delivered be initially represented by one or more
Certificates registered in the name of Cede & Co., the nominee of The Depository
Trust Company ("DTC"). The interests of beneficial owners of the Certificates
will be represented by book entries on the records of DTC and participating
members thereof. Definitive Certificates will be available only under the
limited circumstances set forth in the Pooling and Servicing Agreement. The
certificates evidencing the Certificates will be made available for checking and
packaging at the offices of Xxxxxxx Xxxx & Xxxxx LLP at least 24 hours prior to
the Closing Date.
4. Offering by Underwriters. It is understood that, after the Registration
Statement becomes effective, the Underwriters propose to offer the Certificates
for sale to the public (which may include selected dealers), on the terms set
forth in the Prospectus.
5. Covenants of the Seller and CIT Consumer Finance. Each of the Seller and
CIT Consumer Finance, jointly and severally, covenants and agrees with the
several Underwriters that:
(a) If the Effective Time is prior to the execution and delivery of this
Agreement, the Seller will file the Prospectus, properly completed, with the
Commission pursuant to and in accordance with subparagraph (1) (or, if
applicable and if consented to by the Representative which consent shall not be
unreasonably withheld, subparagraph (4)) of Rule 415 not later than the earlier
of (i) the second business day following the execution and delivery of this
Agreement or (ii) the fifth business day after the Effective Date. The Seller
will advise the Representative promptly of any such filing pursuant to Rule 415.
(b) The Seller will advise the Representative promptly of any proposal to
amend or supplement the registration statement as filed or the related
prospectus or the Registration Statement or the Prospectus, and will not effect
any such amendment or supplementation without the Representative's consent which
consent shall not be unreasonably withheld; and the Seller will also advise the
Representative promptly of the effectiveness of the Registration Statement (if
the Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of the Registration Statement
or the Prospectus and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement and will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
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(c) The Seller will arrange for the qualification of the Certificates for
offering and sale under the securities laws of such jurisdictions in the United
States as the Representative may reasonably designate and will continue such
qualifications in effect so long as necessary under such laws for the
distribution of such Certificates, provided that in connection therewith the
Seller shall not be required to qualify as a foreign corporation to do business
nor become subject to service of process generally, but only to the extent
required for such qualification, in any jurisdiction in which it is not
currently so qualified.
(d) If, at any time when a prospectus relating to the Certificates is
required to be delivered by law in connection with sales by any Underwriter or
dealer, either (i) any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or (ii) for any other reason it shall be necessary to
amend or supplement the Prospectus to comply with the Act, the Seller will
promptly notify the Representative and will promptly prepare and file with the
Commission, at their own expense, an amendment or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance. Neither
the consent of the Representative to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 6 hereof.
(e) As soon as practicable, but not later than the Availability Date (as
defined below), the Seller will cause the Trust to make generally available to
Certificateholders an earnings statement of the Trust covering a period of at
least 12 months beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the applicable Rules and
Regulations thereunder. For the purpose of the preceding sentence, "Availability
Date" means the 45th day after the end of the fourth fiscal quarter following
the fiscal quarter that includes the Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Trust's fiscal year, "Availability
Date" means the 90th day after the end of such fourth fiscal quarter.
(f) The Seller will furnish to each of the Underwriters copies of the
Registration Statement (two of which will be signed and include all exhibits),
each related preliminary prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as the Representative may from time to time reasonably request.
(g) So long as any of the Certificates are outstanding, the Seller or CIT
Consumer Finance, as the case may be, will furnish to the Representative copies
of all written reports or other written communications (financial or otherwise)
furnished or made available to Certificateholders, and deliver to the
Representative during such same period, (i) as soon as they are available,
copies of any reports and financial statements filed by or on behalf of the
Trust by the Seller with the Commission pursuant to the Exchange Act and (ii)
such additional information concerning the Seller or CIT Consumer Finance
(relating to the Mortgage Loans, the
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servicing thereof or the ability of CIT Consumer Finance to act as Master
Servicer), the Certificates or the Trust as the Representative may reasonably
request from time to time.
(h) Whether or not the transactions contemplated by this Agreement are
consummated, the Seller and CIT Consumer Finance will pay or cause to be paid
all costs and expenses incident to the performance of their respective
obligations hereunder, including (i) the preparation, issuance and delivery of
the Certificates, (ii) any fees charged by Xxxxx'x Investors Service, Inc.
("Moody's") and Standard & Poor's Structured Ratings Group, a Division of The
XxXxxx-Xxxx Companies, Inc. ("S&P" and, together with Moody's, the "Rating
Agencies"), for the rating of the Certificates, (iii) the expenses incurred in
printing, reproducing and distributing the registration statement as filed, the
Registration Statement, preliminary prospectuses and the Prospectus (including
any amendments and supplements thereto required pursuant to Section 5(d)
hereof), (iv) the fees and disbursements of counsel to the Seller and CIT
Consumer Finance and the independent public accountants of the Seller, (v) the
fees and disbursement of the Trustee and its counsel, (vi) the fees of DTC in
connection with the book-entry registration of the Certificates, (vii) the
reasonable expenses of the Representative including the reasonable fees and
disbursements of its counsel, in connection with the initial qualification of
the Certificates for sale in the jurisdictions that the Representative may
designate pursuant to Section 5(c) hereof and in connection with the preparation
of any blue sky survey and legal investment survey and (viii) the printing and
delivery to the Underwriters, in such quantities as the Underwriters may
reasonably request, of copies of the Basic Documents. Subject to Section 8
hereof, the Underwriters shall be responsible for their own costs and expenses,
including the fees and expenses of their counsel (other than the reasonable
expenses of the Representative including the reasonable fees and disbursements
of its counsel, in connection with the initial qualification of the Certificates
for sale in the jurisdictions that the Representative may designate pursuant to
Section 5(c) hereof and in connection with the preparation of any blue sky
survey and legal investment survey).
(i) On or before the Closing Date, the Seller, CIT Consumer Finance and
CITSF shall cause each of their respective books and records (including any
computer records) relating to the Initial Mortgage Loans to be marked to show
the absolute ownership by the Trustee in accordance with Section ________ of the
Pooling and Servicing Agreement, on behalf of the Trust, of the Initial Mortgage
Loans, and from and after the Closing Date neither the Seller, CIT Consumer
Finance, as Master Servicer, nor CITSF shall take any action inconsistent with
the ownership by the Trustee on behalf of the Trust of the Initial Mortgage
Loans, other than as permitted by the Basic Documents.
(j) On or before each Subsequent Transfer Date, the Seller, CIT Consumer
Finance and CITSF shall cause each of their respective books and records
(including any computer records) relating to the Subsequent Mortgage Loans to be
sold on such Subsequent Transfer Date to be marked to show the absolute
ownership by the Trustee in accordance with Section ______ of the Pooling and
Servicing Agreement, on behalf of the Trust, of such Subsequent Mortgage Loans,
and from and after such Subsequent Transfer Date neither the Seller, CIT
Consumer Finance, as Master Servicer, nor CITSF shall take any action
inconsistent
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with the ownership by the Trustee on behalf of the Trust of such Subsequent
Mortgage Loans, other than as permitted by the Basic Documents.
(k) Until the retirement of the Certificates, or until such time as the
Underwriters shall cease to maintain a secondary market in the Certificates,
whichever occurs first, the Seller or CIT Consumer Finance will deliver to the
Representative the certified public accountants' annual statements of compliance
furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as
soon as such statements are furnished to the Trustee.
(l) To the extent, if any, that either of the ratings provided with respect
to the Certificates by either Rating Agency is conditional upon the furnishing
of documents or the taking of any other actions by the Seller, CIT Consumer
Finance or CITSF, the Seller, CIT Consumer Finance or CITSF, as the case may be,
shall furnish such documents and take any such other actions as may be required
to satisfy such conditions. A copy of any such document shall be provided to the
Representative at the time it is delivered to the Rating Agencies.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Certificates will be
subject to the accuracy of the representations and warranties on the part of the
Seller and CIT Consumer Finance, and contained or incorporated herein, to the
accuracy of the statements of officers of the Seller and CIT Consumer Finance
made pursuant to the provisions hereof, to the performance by the Seller and CIT
Consumer Finance of its obligations hereunder and to the following additional
conditions precedent:
(a) (i) On the date of this Agreement, the Representative and the Seller
shall have received a draft of a letter, dated the date of delivery thereof, of
KPMG Peat Marwick LLP confirming that they are independent public accountants
with respect to the Seller and CIT Consumer Finance within the meaning of the
Act and the Rules and Regulations, substantially in the form of the draft to
which the Representative has previously agreed and otherwise in form and
substance satisfactory to the Representative and counsel for the Underwriters
and (ii) on the Closing Date, a letter, dated the date of delivery thereof, of
KPMG Peat Marwick LLP confirming that they are independent public accountants
with respect to the Seller and CIT Consumer Finance within the meaning of the
Act and the Rules and Regulations, consistent with the letter delivered pursuant
to clause (i) above and otherwise in form and substance satisfactory to the
Representative and counsel for the Underwriters.
(b) If the Effective Time is not prior to the execution and delivery of
this Agreement, the Effective Time shall have occurred not later than 10:00
p.m., New York City time, on the date of this Agreement or such later date as
shall have been consented to by the Representative. If the Effective Time is
prior to the execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and Regulations and
Section 5(a) hereof. On or prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Seller, shall be contemplated by the Commission.
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(c) The Representative shall have received a certificate, dated the Closing
Date, executed by any two of the President, any Vice President, the principal
financial officer or the principal accounting officer of (i) the Seller
representing and warranting that, as of the Closing Date, to the best of each
such officer's knowledge after reasonable investigation, the representations and
warranties of the Seller in this Agreement and the other Basic Documents to
which it is a party are true and correct, that the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
hereunder or thereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or, to the best of their
knowledge, are contemplated by the Commission and (ii) CIT Consumer Finance in
which such officers shall state that, to the best of each such officer's
knowledge after reasonable investigation, the representations and warranties of
CIT Consumer Finance in this Agreement and the other Basic Documents to which it
is a party are true and correct and that CIT Consumer Finance has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder or thereunder at or prior to the Closing Date.
(d) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the Trust,
the Seller, CIT Consumer Finance or CITSF which, in the judgment of a majority
in interest of the Underwriters (including the Representative), materially
impairs the investment quality of the Certificates or makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Certificates; (ii) any downgrading in the rating of any debt securities of CIT
or CIT Consumer Finance or any of their direct or indirect subsidiaries by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any such debt
securities (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating); (iii)
any suspension or limitation of trading in securities generally on the New York
Stock Exchange or any setting of minimum prices for trading on such exchange;
(iv) any banking moratorium declared by Federal, New Jersey or New York
authorities; or (v) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the judgment
of a majority in interest of the Underwriters (including the Representative),
the effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the sale of
and payment for the Certificates.
(e) The Representative shall have received a written opinion of in-house
General Counsel of the Seller, CIT Consumer Finance and CITSF, or other counsel
satisfactory to the Representative in its reasonable judgment, dated the Closing
Date, in substantially the form set forth below, with such changes therein as
the Representative and counsel for the Underwriters shall reasonably agree:
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(i) The Seller, CITSF and CIT Consumer Finance have each been duly
organized and are validly existing as corporations in good standing under the
laws of the State of Delaware.
(ii) The Seller, CIT Consumer Finance and CITSF each have the
corporate power and corporate authority to carry on their respective businesses
as described in the Prospectus and to own and operate their respective
properties in connection therewith.
(iii) The Seller, CIT Consumer Finance and CITSF are each corporations
duly organized, validly existing and in good standing under the laws of the
jurisdiction of their organization and each has the corporate power to own its
assets and to transact the business in which it is currently engaged and to
perform their respective obligations under each of the Basic Documents to which
it is a party. The Seller, CIT Consumer Finance and CITSF are each qualified to
do business as a foreign corporation and each is in good standing in each
jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the Seller, CIT
Consumer Finance or CITSF, respectively or on their ability to perform their
respective obligations under the Basic Documents.
(iv) This Agreement has been duly authorized, executed and delivered
by each of the Seller and CIT Consumer Finance, and is a valid and binding
obligation of each of the Seller and CIT Consumer Finance enforceable against
each of the Seller and CIT Consumer Finance in accordance with its terms, except
that (A) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (B) such enforcement may be limited by
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (C) the enforceability as to rights to
indemnity thereunder may be limited under applicable law.
(v) Each of the Basic Documents to which the Seller, CIT Consumer
Finance or CITSF is a party have been duly authorized, executed and delivered by
each of the Seller, CIT Consumer Finance and CITSF, and each constitutes a valid
and binding obligation of, each of the Seller, CIT Consumer Finance and CITSF,
enforceable against each of the Seller, CIT Consumer Finance and CITSF in
accordance with its terms, except that (A) such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (B) such
enforcement may be limited by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
(vi) The execution and delivery by each of the Seller, CIT Consumer
Finance and CITSF of each of the Basic Documents to which it is a party, the
performance of their respective obligations thereunder and the signing of the
Registration Statement by the Seller are within the corporate power of the
Seller, CIT Consumer Finance and CITSF, as applicable, and have been duly
authorized by all necessary corporate action on the part of the Seller, CIT
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Consumer Finance and CITSF, as applicable; and neither the issue and sale of the
Certificates, nor the consummation of the transactions contemplated by the Basic
Documents nor the fulfillment of the terms thereof, will, to the best of such
counsel's knowledge, conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or asset of the Seller, CIT Consumer Finance or CITSF pursuant to,
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument, if any, to which the Seller, CIT Consumer Finance or CITSF is a
party or by which either may be bound or to which the property or assets of the
Seller, CIT Consumer Finance or CITSF are subject (which contracts, indentures,
mortgages, loan agreements, notes, leases and other such instruments, if any,
have been identified by the Seller, CIT Consumer Finance or CITSF to such
counsel), nor will such action result in any violation of the provisions of the
certificate of incorporation or by-laws of the Seller, CIT Consumer Finance or
CITSF or, to the best of such counsel's knowledge, any law, administrative
regulation or administrative or court decree of any state or federal courts,
regulatory bodies, other body, governmental entity or arbitrator having
jurisdiction over the Seller, CIT Consumer Finance or CITSF.
(vii) The Seller has duly authorized and executed the written order to
the Trustee to execute and deliver the Certificates.
(viii) To the best of such counsel's knowledge, no filing or
registration with or notice to or consent, approval, authorization or order of
any New Jersey, New York or federal court or governmental authority or agency is
required for the consummation by the Seller, CIT Consumer Finance or CITSF of
the transactions contemplated by this Agreement, except such as may be required
under the Act or the Rules and Regulations, or state securities or Blue Sky laws
or such other filings, registrations, notices, consents, approvals,
authorizations, orders or permits as have been obtained.
(ix) There are no legal or governmental proceedings pending to which
the Seller, CIT Consumer Finance or CITSF is a party or of which any property of
the Seller, CIT Consumer Finance or CITSF is the subject, and no such
proceedings are known by such counsel to be threatened or contemplated by
governmental authorities or threatened by others, (A) that are required to be
disclosed in the Registration Statement and are not disclosed therein or (B)(1)
asserting the invalidity of all or part of any of the Basic Documents, (2)
seeking to prevent the issuance of the Certificates, (3) that could materially
and adversely affect the Seller's, CIT Consumer Finance's or CITSF's obligations
under any of the Basic Documents or (4) seeking to affect adversely the federal
or state income tax attributes of the Certificates.
(x) Such counsel is familiar with CIT Consumer Finance's and CITSF's
standard operating procedures relating to CIT Consumer Finance's and CITSF's
acquisition of a perfected first priority security interest in the properties
financed by CIT Consumer Finance and CITSF's pursuant to mortgage loans. Other
than with respect to mechanic's and materialmen's liens, assuming that CIT
Consumer Finance's standard procedures are followed with respect to the
perfection of security interests in the Mortgaged Properties (and such counsel
has no reason to believe that either CIT Consumer Finance or CITSF has not or
will not continue to follow its standard procedures in connection with the
perfection of security
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interests in the Mortgaged Properties), CIT Consumer Finance and CITSF have
acquired or will acquire a perfected first priority security interest in the
Mortgaged Properties.
(xi) The form of assignment to be executed and delivered by CIT
Consumer Finance to the Seller pursuant to the Purchase Agreement is sufficient
in form and substance to convey to the Seller all of CIT Consumer Finance's
right, title and interest in and to the Mortgage Loans and any security
interests securing the Mortgage Loans. When the Purchase Agreement has been duly
executed and delivered by all parties thereto, the assignment described in the
Purchase Agreement has been duly executed and delivered to the Seller by CIT
Consumer Finance, and the purchase price has been paid to CIT Consumer Finance
by the Seller in the manner specified in the Purchase Agreement, all of CIT
Consumer Finance's right, title and interest in and to the Mortgage Loans and
any security interests securing the Mortgage Loans will have been conveyed to
the Seller and the Seller will be the holder of a valid, binding and enforceable
security interest in the Mortgage Loans against CIT Consumer Finance.
(xii) The form of assignment to be executed and delivered by the
Seller to the Trustee pursuant to the Pooling and Servicing Agreement is
sufficient in form and substance to convey to the Trustee all of the Seller's
right, title and interest in and to the Mortgage Loans and any security
interests securing the Mortgage Loans. When the Basic Documents have each been
duly executed and delivered by all parties thereto, the assignment described in
the Pooling and Servicing Agreement has been duly executed and delivered to the
Trust by the Seller, the purchase price therefor has been paid to the Seller by
the Trust in the manner specified in the Sale and Servicing Agreement, and the
Certificates have been duly executed and duly authenticated and delivered by the
Trustee, to or upon the order of the Seller in accordance with the Pooling and
Servicing Agreement, all of the Seller's right, title and interest in and to the
Mortgage Loans and any security interests securing the Mortgage Loans will have
been conveyed to the Trust and the Trust will be the holder of a valid and
binding security interest in the Mortgage Loans against the Seller.
(f) The Representative shall have received a written opinion of [New Jersey
Counsel], special local New Jersey counsel for the Seller and CIT Consumer
Finance, dated the Closing Date, in form and substance satisfactory to the
Representative and counsel for the Underwriters, to the effect that:
(i) (A) If the transfer of the Mortgage Loans is deemed to be the
grant of a security interest, and not a true sale, (1) to the extent that the
Uniform Commercial Code as in effect in the State of New Jersey (the "New Jersey
UCC") applies to the perfection of the Seller's security interests in the
Mortgage Loans and the proceeds thereof under Section 9-103 of the New Jersey
UCC, when the financing statements executed by CIT Consumer Finance as debtor
(the "First Step Financing Statements") have been duly executed and delivered
and filed or recorded, as appropriate, in the office of the Secretary of State
of New Jersey, such security interests will be perfected and (2) to the extent
that the New Jersey UCC applies to the perfection of the Trust's security
interests in the Mortgage Loans and the proceeds thereof under Section 9-103 of
the New Jersey UCC, when the First Step Financing Statements and the financing
statements executed by the Seller as "debtor" ("Second Step Financing
Statements")
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have been duly executed and delivered and filed or recorded, as appropriate, in
the office of the Secretary of State of New Jersey, such security interests will
be perfected and (B) based solely on such counsel's review of those Financing
Statements, officer certificates and specified New Jersey UCC search reports,
the security interests of the Trust in the Mortgage Loans are subject to no
equal or prior security interest under the New Jersey UCC; provided, however
that (1) for purposes of its opinions in this paragraph, such counsel may assume
that: (a) the Seller is the holder of valid, binding and enforceable security
interests in the Mortgage Loans and the Trust is the holder of valid, binding
and enforceable security interests in the Mortgage Loans; (b) the New Jersey UCC
governs the perfection of the security interest in the Mortgage Loans, the
priority of those security interests and the classification of the Mortgage
Loans; (c) the chief executive office of each of the Company and the Seller is,
and during the past four months has been, in the State of New Jersey; (d)
neither CIT Consumer Finance, the Seller nor the Trust has assigned, nor will
assign, any Mortgage Loan to a buyer who takes possession of it in the ordinary
course of its business and who acts without knowledge that such Mortgage Loan is
subject to a security interest; (e) the Mortgage Loans exist and each of CIT
Consumer Finance and the Seller, respectively, has rights in the Mortgage Loans;
(f) (i) no lien creditor has executed on or attached to the Mortgage Loans prior
to the perfection of the security interests of the Seller or the Trust in the
Mortgage Loans and the proceeds thereof; and (ii) the Mortgage Loans are not
subject to the rights of the holder of a perfected "purchase money security
interest" (as such term is defined in Section 9-107 of the New Jersey UCC); (g)
no Mortgage Loan, or the proceeds thereof, constitutes proceeds of any property
subject to the security interest of a third party; (h) none of the proceeds of
the Mortgage Loans which constitute "securities" under Article 8 of the New
Jersey UCC are transferred to a bona fide purchaser (other than the Indenture
Trustee) under Section 8-302 of the New Jersey UCC; (i) the Seller and the
Trustee have and will maintain a list describing the Mortgage Loans for
inspection during normal business hours by interested parties; (j) the
underlying facts in the officer certificates to be received by such counsel are
correct; (k) all financing statements or other notice of liens, other than the
financing statements, in which CIT Consumer Finance, the Seller or the Trust is
named as debtor were properly filed and indexed, that the New Jersey UCC search
reports have revealed all recorded liens against CIT Consumer Finance and the
Seller and that no filings or notices covering CIT Consumer Finance or the
Seller were made between the dates last searched and reported on in the New
Jersey UCC search reports and the time of such financing statements, and (1)
from and after the date hereof CIT Consumer Finance, acting in a capacity as
Master Servicer and custodian for the Trustee, will have taken, and will
maintain, exclusive possession of the Mortgage Loans; and (2) such counsel need
express no opinion: (a) regarding perfection as to any government or
governmental agency (including without limitation the United States of America
or any State thereof or any agency or department of the United States of America
or any State thereof) of any security interest in any Mortgage Loans with
respect to which such government or agency is obligated; (b) on the perfection
of any security interests in the collateral described in the Mortgage Loans; (c)
as to the priority of any perfected security interests under the New Jersey UCC
of any liens, claims or other interests that do not require filing or similar
action to attach or that arise by operation of law against any claim or lien in
favor of the United States or any State or any agency or instrumentality of the
United States or any State (including, without limitation, liens arising under
the federal tax laws or the Employment Retirement Income Security Act of 1974,
as amended) or against the rights of a "lien creditor" (as defined in the New
Jersey UCC);
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and (d) as to the effect of the laws of any other state that may govern the
perfection or priority of the security interest in the Mortgage Loans by
possession or other than by filing a financing statement under the UCC; (3) such
opinions may be subject to the effect of (i) the limitations on the existence
and perfection of security interests in proceeds resulting from the operation of
Section 9-306 of the New Jersey UCC; (ii) the limitations with respect to
documents and instruments imposed by Section 9-309 of the New Jersey UCC; (iii)
bankers' liens, rights of set-off and other rights of persons in possession of
money, instruments and proceeds constituting certificated or uncertificated
securities; (iv) the priority of any security interests perfected by possession;
(v) the priority of security interests which may be perfected by any means other
than by filing a financing statement under the New Jersey UCC and (and such
counsel may note that CIT Consumer Finance, the Seller and the Trust have
respectively represented that no such security interests exist) and (vi) Section
552 of the Bankruptcy Code with respect to any Mortgage Loans acquired by the
Seller or the Trust subsequent to the commencement of a case by or against CIT
Consumer Finance, the Seller or the Trust under the Bankruptcy Code; (4) such
counsel's opinions may be inapplicable to any Subsequent Mortgage Loans unless,
upon the proper filing of New Jersey UCC financing statements describing the
Subsequent Mortgage Loans, (i) the assumptions, qualifications and limitations
in this letter shall be true as to conditions then existing and as to the
Subsequent Mortgage Loans, (ii) there are no changes in law, and (iii) all
searches have been updated and reveal no liens against any of the Subsequent
Mortgage Loans; and (5) such counsel's opinion may be further subject to the
effect of general principles of equity, regardless of whether such principles
are considered in a proceeding in equity or at law, as the same may be applied
in a proceeding seeking to enforce any obligation.
(ii) Solely insofar as the present laws of the State of New Jersey and
the Federal law of the United States of America are concerned, in a properly
presented and decided case, a court would conclude that the transfer of the
Mortgage Loans and the proceeds thereof by CIT Consumer Finance to the Seller
constitute true sales of such Mortgage Loans and, assuming a court reached that
conclusion, in such a case a court would conclude that the Mortgage Loans and
the proceeds would not be considered property of the estate of CIT Consumer
Finance pursuant to Section 541 of the Bankruptcy Code, and the Mortgage Loans
and the proceeds thereof would not be subject to the automatic stay pursuant to
Section 362 of the Bankruptcy Code; provided, however, such counsel need express
no opinion (A) with respect to how long the Seller could be denied possession of
the Mortgage Loans before the issues discussed in this paragraph are finally
decided on appeal or other review, (B) with respect to the availability of a
preliminary injunction or temporary restraining order pursuant to the broad
equitable powers granted to a bankruptcy court and (C) as to the conveyance of
any Subsequent Mortgage Loans unless, upon the proper filing of UCC financing
statements describing the Subsequent Mortgage Loans, (1) the assumptions,
qualifications and limitations in such opinion shall be true as to conditions
then existing and (2) all searches have been updated and reveal no liens against
any of the Subsequent Mortgage Loans.
(iii) Solely insofar as the present laws of the State of New Jersey
and the Federal law of the United States of America are concerned, in a properly
presented and decided case, a court would conclude that the transfer of the
Mortgage Loans and the proceeds thereof by the Seller to the Trust constitute
true sales of such Mortgage Loans and, assuming a
-16-
court reached that conclusion, in such a case a court would conclude that the
Mortgage Loans and the proceeds would not be considered property of the estate
of the Seller pursuant to Section 541 of the Bankruptcy Code, and the Mortgage
Loans and the proceeds thereof would not be subject to the automatic stay
pursuant to Section 362 of the Bankruptcy Code; provided, however, such counsel
need express no opinion (A) with respect to how long the Trust could be denied
possession of the Mortgage Loans before the issues discussed in this paragraph
are finally decided on appeal or other review, (B) with respect to the
availability of a preliminary injunction or temporary restraining order pursuant
to the broad equitable powers granted to a bankruptcy court and (C) as to the
conveyance of any Subsequent Mortgage Loans unless, upon the proper filing of
UCC financing statements describing the Subsequent Mortgage Loans, (1) the
assumptions, qualifications and limitations in such opinion shall be true as to
conditions then existing and (2) all searches have been updated and reveal no
liens against any of the Subsequent Mortgage Loans. Such opinion may contain
such assumptions, qualifications and limitations as are customary in opinions of
this type and are reasonably acceptable to counsel to the Underwriters. In
rendering such opinion, such counsel may state that they express no opinion as
to the laws of any jurisdiction other than the Federal law of the United States
of America and the laws of the State of New Jersey.
(i) The Representative shall have received a written opinion of
Xxxxxxx Xxxx & Xxxxx LLP, special counsel to the Seller, CIT Consumer Finance
and CITSF, dated the Closing Date, in substantially the form set forth below,
with such changes therein as the Representative and counsel for the Underwriters
shall reasonably agree:
(i) The Registration Statement became effective under the Act as
of __________, 199_ and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement or any part thereof
or any amendment thereto has been issued under the Act and no proceeding for
that purpose has been instituted or threatened by the Commission.
(ii) The Sale and Servicing Agreement does not need to be
qualified under the Trust Indenture Act. The Trust is not, and will not as a
result of the offer and sale of the Certificates as contemplated in the
Prospectus and in this Agreement become, required to register as an "investment
company" under the Investment Company Act.
(iii) The statements in the Prospectus under the caption "The
Certificates" and "The Purchase Agreements" insofar as such statements purport
to summarize certain terms of the Certificates and the Basic Documents, present
a fair summary of the terms of such documents.
(iv) To the best of such counsel's knowledge, there are no
Mortgage Loans or documents of the Seller which are required to be filed as
exhibits to the Registration Statement pursuant to the Act or the Rules or
Regulations which have not been so filed.
(v) The statements in the Prospectus under the headings "Certain
Federal Income Tax Consequences" and "ERISA Considerations," to the extent that
they
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constitute matters of law or legal conclusions with respect thereto are correct
in all material respects.
(vi) The registration statement on Form S-3 (No. 333-_________)
relating to the Certificates as of the Effective Date, the Registration
Statement and the Prospectus as of the date of this Agreement, and any amendment
or supplement thereto, as of its date, complied as to form in all material
respects with the requirements of the Act and the applicable Rules and
Regulations. Such counsel need express no opinion with respect to the financial
statements, the exhibits, annexes and other financial, statistical, numerical or
portfolio data, economic conditions or financial condition of the portfolio
information included in the registration statement on Form S-3 (No. 333 -
______) relating to the Certificates, the Registration Statement, the Prospectus
or any amendment or supplement thereto.
Such counsel shall state that it has participated in conferences with officers
and representatives of the Seller, CIT Consumer Finance, Counsel to CIT Consumer
Finance and officers and representatives of the Underwriters, at which
conferences certain of the contents of the Registration Statement and the
Prospectus were discussed and, although such counsel is not passing upon and
does not assume any responsibility whatsoever for, the factual accuracy,
completeness or fairness of the statements contained in the registration
statement on Form S-3 (No. 333 - ______) relating to the Certificates, the
Registration Statement or Prospectus (except as stated in Sections 6(i)(v) and
6(i)(vii) above) and has made no independent check or verification thereof for
the purpose of rendering this opinion, on the basis of the foregoing (relying as
to materiality to a large extent upon the certificates of officers and other
representatives of the Seller and CIT Consumer Finance), no facts have come to
their attention that leads such counsel to believe that the registration
statement on Form S-3 (No. 333 - _____) relating to the Certificates, as of the
Effective Date, the Registration Statement, when it became effective, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus on its date contained or on the Closing Date
contains, any untrue statement of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that such counsel need express no view with respect
to the financial statements, tables, schedules, exhibits, annexes and other
financial, statistical, numerical or portfolio data, or information on economic
conditions or financial condition of the portfolio included in or incorporated
by reference into, the Registration Statement or Prospectus. Said counsel may
state that they are admitted to practice only in the State of New York, that
they are not admitted to the Bar in any other State and are not experts in the
law of any other State and to the extent that the foregoing opinions concern the
laws of any other State such counsel may rely upon the opinion of counsel
satisfactory to the Underwriters and admitted to practice in such jurisdiction.
Any opinions relied upon by such counsel as aforesaid shall be addressed to the
Underwriters and shall be delivered together with the opinion of such counsel,
which shall state that such counsel believes that their reliance thereon is
justified.
(j) The Representative shall have received an opinion of [Underwriter's
Counsel], counsel for the Underwriters, dated the Closing Date, with respect to
the validity of the
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Certificates and such other related matters as the Representative shall require
and the Seller shall have furnished or caused to be furnished to such counsel
such documents as they may reasonably request for the purpose of enabling them
to pass upon such matters.
(k) The Representative shall have received an opinion of [Cash Collateral
Depositor's Counsel], counsel to the Cash Collateral Depositor, dated the
Closing Date, in form and substance satisfactory to the Representative and
counsel for the Underwriters, to the effect that:
(i) The Cash Collateral Depositor is licensed to maintain a branch in
the State of New York and has full power and authority to enter into, and to
take all action required of it, under the Cash Collateral Agreement.
(ii) The Cash Collateral Agreement has been duly authorized, executed
and delivered by the Cash Collateral Depositor.
(iii) The Cash Collateral Agreement constitutes a legal, valid and
binding agreement of the Cash Collateral Depositor, enforceable against the Cash
Collateral Depositor in accordance with its terms, except as enforceability
thereof may be limited by bankruptcy, insolvency, liquidation, reorganization,
moratorium or other similar laws affecting the enforcement of rights of
creditors against the Cash Collateral Depositor generally, as such laws would
apply in the event of bankruptcy, insolvency, liquidation, receivership, or
reorganization or any moratorium or similar occurrence affecting the Cash
Collateral Depositor, and the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or law).
(l) The Representative shall have received an opinion of [Japanese
Counsel], Japanese counsel to the Cash Collateral Depositor, in form and
substance satisfactory to the Representative and counsel for the Underwriters,
to the effect that the Cash Collateral Depositor is a banking corporation
validly existing under the laws of Japan.
(m) The Representative shall have received an opinion of [Trustee Counsel],
counsel to the Trustee, dated the Closing Date, in form and substance
satisfactory to the Representative and counsel for the Underwriters, to the
effect that:
(i) The Trustee is a ______________ duly incorporated and validly
existing under the laws of the state of _________.
(ii) The Trustee has the full power and authority to accept the office
of owner trustee under the Pooling and Servicing Agreement and to enter into and
perform its obligations under the Pooling and Servicing Agreement and the
transactions contemplated thereby.
(iii) The execution and delivery of the Pooling and Servicing
Agreement by the Trustee and the performance by the Trustee of its obligations
under the
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Pooling and Servicing Agreement have been duly authorized by all necessary
action of the Trustee and the Pooling and Servicing Agreement has been duly
executed and delivered by the Trustee.
(iv) The Pooling and Servicing Agreement constitutes valid and binding
obligations of the Trustee enforceable against the Trustee in accordance with
its terms, except as the enforceability thereof may be (a) limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation or other similar
laws affecting the rights of creditors generally, and (b) subject to general
principals of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(v) The execution and delivery by the Trustee of the Trust Agreement
and the transactions contemplated thereby do not require any consent, approval
or authorization of, or any registration or filing with, any applicable
governmental authority of the State of Delaware which has not been obtained or
done.
(vi) Neither the consummation by the Trustee of the transactions
contemplated in the Pooling and Servicing Agreement, nor the fulfillment of the
terms thereof by the Trustee will conflict with, result in a breach or violation
of, or constitute a default under the Article of Association, By-Laws or other
organizational documents of the Trustee
(n) The Certificates shall have been rated [at least "A2" by Xxxxx'x and
"A" by S&P].
(o) The Representative shall have received copies of each opinion of
counsel delivered to either Rating Agency or the Cash Collateral Depositor,
together with a letter addressed to the Representative, dated the Closing Date,
to the effect that each Underwriter may rely on each such opinion to the same
extent as though such opinion was addressed to each as of its date.
(p) The Representative shall have received evidence satisfactory to it and
counsel for the Underwriters that, on or before the Closing Date, UCC-1
financing statements shall have been submitted to the Trustee for filing in the
appropriate filing offices reflecting the transfer of the interest in the
Mortgage Loans and the proceeds thereof (A) from CITSF to CIT Consumer Finance,
to the extent such Mortgage Loans have been transferred to CIT Consumer Finance
from CITSF, (B) from CIT Consumer Finance to the Seller, (C) from the Seller to
the Trustee, on behalf of the Trust, or the Trust, as the case may be.
(q) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they reasonably may require for
the purpose of enabling them to pass upon the issuance and sale of the
Certificates as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Seller in connection with the issuance and sale of
the Certificates as
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herein contemplated shall be in form and substance satisfactory to the
Representative and counsel for the Underwriters.
7. Indemnification and Contribution. (a) CIT Consumer Finance will
indemnify and hold each Underwriter harmless against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or arise out of or are based upon
the omission or alleged or mission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that (i) CIT Consumer Finance will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Seller or CIT Consumer
Finance by any Underwriter through the Representative specifically for use
therein it being understood and agreed that the only such information furnished
by any Underwriter consists of the Underwriters' Information (ii) such indemnity
with regard to any related preliminary prospectus shall not inure to the benefit
of each Underwriter (or any person controlling each Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Certificates which are the subject thereof if such person did not receive a copy
of the Prospectus (or, in the event it is amended or supplemented, such
Prospectus as amended or supplemented) at or prior to the confirmation of the
sale of such Certificates to such person if such Prospectus (or, in the event it
is amended or supplemented, such Prospectus as amended or supplemented) was
timely forwarded to each Underwriter as required by this Agreement and the
untrue statement or omission of a material fact contained in such related
preliminary prospectus was corrected in the Prospectus (or, in the event it is
amended or supplemented, such Prospectus as amended or supplemented) and (iii)
CIT Consumer Finance shall not, in connection with any one such action or
separate but substantially similar or related transactions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys for all such Underwriters, which firm shall be designated in
accordance with Section 7(c) hereof.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Seller and CIT Consumer Finance against any losses, claims, damages
or liabilities to which the Seller or CIT Consumer Finance may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus or arise out of or are based upon
the omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such
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untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Seller or CIT Consumer Finance by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Seller or CIT Consumer Finance in
connection with investigating or defending any such action or claim as such
expenses are incurred, it being understood and agreed that (i) the only such
information furnished by any Underwriter consists of the following information
contained in the Prospectus: (a) the last paragraph at the bottom of the cover
page concerning the terms of the offering by the Underwriters, (b) the legend
concerning over-allotments and (c) the information contained under the caption
"Underwriting" (the "Underwriters' Information") and (ii) the Underwriters shall
not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for each of the Seller and
CIT Consumer Finance, which firm shall be designated in accordance with Section
7(c) hereof.
(c) Promptly after receipt by an indemnified party under this Section of
written notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and after acceptance by the indemnified party of counsel, the
indemnifying party 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 other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above in such proportion as is
appropriate to reflect not only the relative benefits received by the Seller and
CIT Consumer Finance on the one hand and the Underwriters on the other from the
offering of the Certificate but also the relative fault of the Seller and CIT
Consumer Finance on the one hand and the Underwriters on the other in connection
with the statements or omissions which
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resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Seller
and CIT Consumer Finance on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Certificate (before deducting expenses) received by the Seller
and CIT Consumer Finance bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Seller, CIT Consumer
Finance or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Certificate underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of CIT Consumer Finance under this Section shall be in
addition to any liability which the Seller or CIT Consumer Finance may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Seller or CIT
Consumer Finance, to each officer of the Seller or CIT Consumer Finance who has
signed the Registration Statement and to each person, if any, who controls the
Seller or CIT Consumer Finance within the meaning of the Act.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Seller and CIT Consumer Finance or their respective officers and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation or statement as to the results
thereof, made by or on behalf of any Underwriter, the Seller, CIT Consumer
Finance or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the
Certificate. If this Agreement is terminated pursuant to Section 9 or if for any
reason the purchase of the Certificates by the Underwriters is not consummated,
the Seller, CIT Consumer Finance and CITSF shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 hereof and the
respective obligations of the Seller, CIT Consumer Finance and the
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Underwriters pursuant to Section 7 hereof shall remain in effect. If the
purchase of the Certificate by the Underwriters is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 9 or the occurrence of any event specified in clauses (iii), (iv) or
(v) of Section 6(e) hereof, the Seller and CIT Consumer Finance will reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Certificate.
9. Failure to Purchase the Certificates. If any Underwriter or Underwriters
default in their obligations to purchase the principal amount of the
Certificates opposite such Underwriter's name on Schedule I hereto and the
aggregate principal amount of the Certificates that such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of the Certificates, the Representative may make arrangements
satisfactory to the Seller and CIT Consumer Finance for the purchase of such
Certificates by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments hereunder,
to purchase the Certificates that such defaulting Underwriters agreed but failed
to purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount of the Certificates with respect to such default or defaults
exceeds 10% of the total principal amount of the Certificates and arrangements
satisfactory to the Representative, the Seller and CIT Consumer Finance for the
purchase of such Certificates by other persons are not made within 36 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter, the Seller or CIT Consumer Finance, except as
provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter or Underwriters from liability for
its default.
10. Notices. All communications hereunder will be in writing and, if sent
to the Representative or the Underwriters, will be mailed, delivered or sent by
facsimile transmission and confirmed to the Representative at [Address],
Attention: ______________ (facsimile number (___) ________); if sent to the
Seller, will be mailed, delivered or sent by facsimile transmission and
confirmed to it at The CIT Group Securitization Corporation III, 000 XXX Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxx X. Xxxx, Xx., President
(facsimile number (000) 000-0000); if sent to CIT, will be mailed, delivered or
sent by facsimile transmission and confirmed to it by The CIT Group Holdings,
Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
X. Xxxxx, Executive Vice President and Chief Financial Officer (facsimile number
(000) 000-0000); and if sent to CIT Consumer Finance, will be mailed, delivered
or sent by facsimile transmission and confirmed to it at The CIT Group/Consumer
Finance, Inc., 000 XXX Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxx X.
Xxxx, Xx., President (facsimile number (000) 000-0000).
11. No Bankruptcy Petition. Each Underwriter agrees that, prior to the date
which is one year and one day after the payment in full of all securities issued
by the Seller or by a trust for which the Seller was the depositor or by the
Trust, which securities were rated by any nationally recognized statistical
rating organization, it will not institute against, or join any other person in
instituting against, the Seller or the Trust any bankruptcy, reorganization,
arrangement,
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insolvency or liquidation proceedings or other proceedings under any Federal or
state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the Underwriters, the Seller, CIT and CIT Consumer Finance and their
respective successors and the officers and directors and controlling persons
referred to in Section 7, and no other person will have any right or obligations
hereunder.
13. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with the transactions described in this
Agreement, and any action taken by Representative under this Agreement will be
binding upon all the Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts each of which shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Agreement.
15. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
If the foregoing is in accordance with the Representative's understanding
of our agreement, kindly sign and return to us a counterpart hereof, whereupon
it will become a binding agreement among the Seller, CIT Consumer Finance and
the several Underwriters in accordance with its terms.
Very truly yours,
THE CIT GROUP SECURITIZATION
CORPORATION III
By: _______________________________
Name:
Title:
THE CIT GROUP/CONSUMER FINANCE, INC.
By: _______________________________
Name:
Title:
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The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written:
[UNDERWRITER]
By: _____________________________
Name:
Title:
Acting on behalf of itself
and as the Representative
of the several Underwriters.
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