Exhibit 1.1
CIT RV OWNER TRUST 1996-A
$ CLASS A % ASSET BACKED NOTES
$ % ASSET BACKED CERTIFICATES
THE CIT GROUP SECURITIZATION CORPORATION II
(SELLER)
, 1996
UNDERWRITING AGREEMENT
XXXXXXX XXXXXXXX INC
as Representative of
the Several Underwriters (the "Representative"),
Seven World Trade Center
New York, New York 10048
Dear Sirs:
1. Introductory. The CIT Group Securitization Corporation II, 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 RV Owner Trust 1996-A (the "Trust") to issue and sell $ ___________
principal amount of its Class A _____ % Asset Backed Notes (the "Notes") and
$___________ principal amount of its ____ % Asset Backed Certificates (the
"Certificates" and, together with the Notes, the "Securities"). The Securities
are registered under the registration statement referred to in Section 2(a). The
assets of the Trust include, among other things, a pool of retail receivables
generated pursuant to motor vehicle retail installment sale contracts (the
"Initial Contracts") secured by new and used recreational vehicles financed
thereby (the "Initial Financed Vehicles"), and certain monies received
thereunder on or after ____________ , 1996, 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 ____________ , 1996
(the "Cash Collateral Agreement") between the Trust, the Owner Trustee, the
Servicer and _______________________________ (the "Cash Collateral Depositor")
and the Sale and Servicing Agreement (as defined below), additional retail
receivables generated pursuant to motor vehicle retail installment sale
contracts (the "Subsequent Contracts"; and together with the Initial Contracts,
the "Contracts") secured by new and used recreational vehicles financed thereby
(the "Subsequent Financed Vehicles;" and together with the Initial Financed
Vehicles, the "Financed Vehicles") to be conveyed to the Trust subsequent to the
date of issuance of the Securities 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 Sale and Servicing
Agreement to be dated as of ____________ , 1996 (the "Sale and Servicing
Agreement") among the Trust, the Seller, and The CIT Group/Sales Financing,
Inc., a wholly-owned subsidiary of CIT, as servicer ("CITSF" or the "Servicer").
The Contracts and other assets of the Trust will be sold by CITSF to the Seller
pursuant to a Purchase Agreement to be dated as of ____________ , 1996 (the
"Purchase Agreement") between CITSF and the Seller, and finally by the Seller to
the Trust pursuant to the Sale and Servicing Agreement. Certain of the Contracts
and other property sold by CITSF to the Seller will first be purchased by CITSF
from The CIT Group/Consumer Finance, Inc. (NY) ("CITCF-NY") pursuant to a
Purchase Agreement to be dated as of ___________ , 1996 (the "CITCF-NY Sale
Agreement") between CITCF-NY and CITSF. The Servicer will service the Contracts
on behalf of the Trust pursuant to the Sale and Servicing Agreement. The Notes
will be issued pursuant to the Indenture to be dated as of ___________ , 1996
(as amended and supplemented from time to time, the "Indenture"), between the
Trust and _________________________ (the "Indenture Trustee"). Pursuant to the
Sale and Servicing Agreement, the Servicer will agree to perform certain
administrative tasks imposed on the Trust under the Indenture. The Certificates,
each representing a fractional undivided interest in the Trust, will be issued
pursuant to a Trust Agreement to be dated as of ___________ , 1996 (the "Trust
Agreement"), between the Seller and __________________________ , as owner
trustee (the "Owner Trustee").
Capitalized terms used herein and not otherwise defined shall have the
meanings given them in the Sale and Servicing Agreement and the Indenture.
The Seller and CITSF hereby agree with the several Underwriters named in
Schedule I hereto (the "Underwriters") as follows:
2. _______ Representations and Warranties of the Seller and CITSF. Each of
the Seller and CITSF, 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 Securities pursuant to Section 3 hereof (the "Closing
Date") that:
(a) A registration statement on Form S-1 (No. 33-___________) relating
to the Securities, including a form of prospectus, has been filed with the
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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 relating to the Securities, as first
filed with the Commission pursuant to and in accordance with Rule 424(b)
("Rule 424(b)") 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 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
Statement conforms, and at the time of filing of the Prospectus pursuant to
Rule 424(b), 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
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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
424(b) 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 CITSF 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(a)).
(c) Each of the Seller and CITSF have been duly organized and are
validly existing as corporations in good standing under the laws of the
State of Delaware. CITCF-NY has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of New York.
The CIT GP Corporation ("CIT GP") has been duly organized and is validly
existing under the laws of the State of Illinois. Each of the Seller,
CITSF, CITCF-NY and CIT GP 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, CITSF, CITCF-NY and CIT GP 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 Sale and Servicing Agreement, the Trust Agreement, the
Indenture, the Cash Collateral Agreement, the CITCF-NY Sale Agreement, the
Purchase Agreement, the Note Depository Agreement and the Certificate
Depository Agreement.
(d) Neither the Seller nor CIT GP is in violation of its certificate
of incorporation or by-laws or in default in the performance or observance
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of any material obligation, agreement, covenant or condition contained in
any contract, 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 CIT GP,
as the case may be, 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.
(e) Neither CITSF nor CITCF-NY 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 CITSF or CITCF-NY 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 each of the Seller and CIT GP 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 CIT GP and duly authorized by all necessary
corporate action on the part of the Seller and CIT GP on and as of the
Closing Date; and neither the issuance and sale of the Securities to the
Underwriters, nor the execution and delivery by each of the Seller and CIT
GP of the Basic Documents to which it is a party, nor the consummation by
the Seller or CIT GP of the transactions therein contemplated, nor
compliance by the Seller or CIT GP with the provisions hereof or thereof,
nor the grant of the security interest in the Collateral to the Indenture
Trustee pursuant to the Indenture, 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 CIT GP or its properties or the certificate
of incorporation or by-laws of the Seller or CIT GP or any of the
provisions of any indenture, mortgage, contract or other instrument to
which the Seller or CIT GP is a party or by which the Seller or CIT GP 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 CITSF and CITCF-NY 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
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corporate power of each of CITSF and CITCF-NY and duly authorized by all
necessary corporate action on the part of each of CITSF and CITCF-NY on and
as of the Closing Date; and neither the issuance and sale of the Securities
to the Underwriters, nor the execution and delivery by CITSF and CITCF-NY
of any of the Basic Documents to which it is a party, nor the consummation
by CITSF and CITSF-NY of the transactions therein contemplated, nor
compliance by CITSF and CITCF-NY with the provisions hereof or thereof, nor
the grant of the security interest in the Collateral to the Indenture
Trustee pursuant to the Indenture, 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 CITSF or CITCF-NY or their respective properties or the
certificate of incorporation or by-laws of CITSF or CITCF-NY, or any of the
provisions of any material indenture, mortgage, contract or other
instrument to which CITSF or CITCF-NY is a party or by which CITSF or
CITCF-NY 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 CITSF, and it constitutes a legal, valid and binding
instrument enforceable against each of the Seller and CITSF 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 Sale and Servicing Agreement when executed and delivered on
the Closing Date will be duly authorized, executed and delivered by each of
the Seller and CITSF, and will constitute a legal, valid and binding
instrument enforceable against each of the Seller and CITSF 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 Trust Agreement when executed and delivered on the Closing
Date will be duly authorized, executed and delivered by each of the Seller
and CIT GP, and will constitute a legal, valid and binding instrument
enforceable against each of the Seller and CIT GP in accordance with its
terms, subject (i) to applicable bankruptcy, reorganization, insolvency,
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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 Cash Collateral Agreement when executed and delivered on the
Closing Date will be duly authorized, executed and delivered by CITSF and
will constitute a legal, valid and binding instrument enforceable against
CITSF 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).
(l) The Certificates, when duly and validly executed by the Owner
Trustee or an agent thereof on behalf of the Trust, authenticated and
delivered in accordance with the Trust Agreement, and delivered to and paid
for pursuant hereto will be validly issued and outstanding and entitled to
the benefits of the Trust Agreement.
(m) The Notes, when duly and validly executed by the Owner Trustee or
an agent thereof on behalf of the Trust, authenticated and delivered in
accordance with the Indenture, and delivered and paid for pursuant hereto
will be validly issued and outstanding and entitled to the benefits of the
Indenture.
(n) 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, CITSF and CIT GP 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.
(o) The Seller, CITSF, CITCF-NY and CIT GP 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 or the Noteholders under the Basic
Documents, and neither the Seller, CITSF, CITCF-NY nor CIT GP 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, CITSF,
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CITCF-NY or CIT GP or their ability to perform their respective obligations
under any of the Basic Documents to which it is a party.
(p) As of the Closing Date, the Initial Contracts and related property
will have been duly and validly assigned to the Owner Trustee in accordance
with the Basic Documents; and when such assignment is effected, a duly and
validly perfected transfer of all such Initial Contracts subject to no
prior lien, mortgage, security interest, pledge, charge or other
encumbrance created by the Seller, CITSF, CITCF-NY or CIT GP will have
occurred. As of the Closing Date, the Trust's grant of a security interest
in the Collateral to the Indenture Trustee pursuant to the Indenture will
vest in the Indenture Trustee, for the benefit of the Noteholders, a first
priority perfected security interest therein, subject to no prior lien,
mortgage, security interest, pledge, charge or other encumbrance created by
the Seller, CITSF, CITCF-NY or CIT GP. As of each Subsequent Transfer Date,
the Subsequent Contracts and related property conveyed to the Trust on such
date will have been duly and validly assigned to the Owner Trustee in
accordance with the Basic Documents; and when such assignment is effected,
the duly and validly perfected transfer of all such Subsequent Contracts
will be subject to no prior lien, mortgage, security interest, pledge,
charge or other encumbrance created by the Seller, CITSF, CITCF-NY or CIT
GP. As of each Subsequent Transfer Date, the Trust's grant of a security
interest in the Collateral sold to the Trust on such Subsequent Transfer
Date pursuant to the Indenture will vest in the Indenture Trustee, for the
benefit of the Noteholders, a first priority perfected security interest
therein, subject to no prior lien, mortgage, security interest, pledge,
charge or other encumbrance created by the Seller, CITSF, CITCF-NY or CIT
GP.
(q) As of the Closing Date, each of the Initial Contracts will meet
the eligibility criteria described in the Prospectus and as of each
Subsequent Transfer Date, each of the Subsequent Contracts being
transferred to the Trust will meet the eligibility criteria described in
the Prospectus.
(r) The chief executive office of each of the Seller, CITSF and
CITCF-NY 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, CITSF and CITCF-NY where it keeps its
respective records concerning the Contracts 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.
(s) Neither the Seller, CITSF, CIT GP nor the Trust Fund created by
the Sale and Servicing Agreement will be subject to registration as an
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"investment company" under the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(t) In connection with the offering of the Securities 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.
(u) As of the Closing Date, each of the respective representations and
warranties of the Seller, CITSF, CITCF-NY and CIT GP 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 Securities. 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 the Notes 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 Class A Rate from , 1996 to (but excluding) the Closing Date,
and the principal balance of 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 IV hereto plus accrued interest at the
Pass-Through Rate from , 1996 to (but excluding) the Closing Date.
The Seller will deliver the Securities 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, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on _____________ , 1996 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 Securities to be so delivered will
be initially represented by one or more Notes and 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 Securities will be
represented by book entries on the records of DTC and participating members
thereof. One Certificate in definitive form in the principal amount of
$________ will be registered in the name of CIT GP (the "GP Certificate").
Definitive Notes and Definitive Certificates (other than the GP Certificate)
will be available only under the limited circumstances set forth in the
Indenture and Trust Agreement. The notes and certificates evidencing the Notes
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and Certificates will be made available for checking and packaging at the
offices of Xxxxxxx Xxxx & Xxxxx 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 Securities
for sale to the public (which may include selected dealers), on the terms set
forth in the Prospectus.
5. Covenants of the Seller and CITSF. Each of the Seller and CITSF, 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, subparagraph
(4)) of Rule 424(b) 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 424(b).
(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.
(c) The Seller will arrange for the qualification of the Securities
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 Securities, 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.
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(d) If, at any time when a prospectus relating to the Securities 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 Noteholders and 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 Securities are outstanding, the Seller or
CITSF, 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 Noteholders and/or 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
CITSF (relating to the Contracts, the servicing thereof or the ability of
CITSF to act as Servicer), the Notes, the Certificates or the Trust as the
Representative may reasonably request from time to time.
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(h) Whether or not the transactions contemplated by this Agreement are
consummated, the Seller, CITSF and CIT GP 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 Securities, (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 Securities, (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, CITSF and CIT GP and the independent public
accountants of the Seller, (v) the fees and disbursements of the Indenture
Trustee and its counsel, (vi) the fees and disbursement of the Owner
Trustee and its counsel, (vii) the fees of DTC in connection with the
book-entry registration of the Securities, (viii) the reasonable expenses
of the Representative including the reasonable fees and disbursements of
its counsel, in connection with the initial qualification of the Securities
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 (ix) 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 Securities 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, CITSF and CITCF-NY
shall cause each of their respective books and records (including any
computer records) relating to the Initial Contracts to be marked to show
the absolute ownership by the Owner Trustee in accordance with Section
3.01B(d) of the Sale and Servicing Agreement, on behalf of the Trust, of
the Initial Contracts, and from and after the Closing Date neither the
Seller, CITSF, as Servicer, nor CITCF-NY shall take any action inconsistent
with the ownership by the Owner Trustee on behalf of the Trust of the
Initial Contracts, other than as permitted by the Basic Documents.
(j) On or before each Subsequent Transfer Date, the Seller, CITSF and
CITCF-NY shall cause each of their respective books and records (including
-12-
any computer records) relating to the Subsequent Contracts to be sold on
such Subsequent Transfer Date to be marked to show the absolute ownership
by the Owner Trustee in accordance with Section 3.01B(d) of the Sale and
Servicing Agreement, on behalf of the Trust, of such Subsequent Contracts,
and from and after such Subsequent Transfer Date neither the Seller, CITSF,
as Servicer, nor CITCF-NY shall take any action inconsistent with the
ownership by the Owner Trustee on behalf of the Trust of such Subsequent
Contracts, other than as permitted by the Basic Documents.
(k) Until the retirement of the Securities, or until such time as the
Underwriters shall cease to maintain a secondary market in the Securities,
whichever occurs first, the Seller or CITSF will deliver to the
Representative the certified public accountants' annual statements of
compliance furnished to the Indenture Trustee or the Owner Trustee pursuant
to the Indenture and the Sale and Servicing Agreement, as soon as such
statements are furnished to the Indenture Trustee or the Owner Trustee.
(l) To the extent, if any, that either of the ratings provided with
respect to the Securities by either Rating Agency is conditional upon the
furnishing of documents or the taking of any other actions by the Seller,
CITSF, CITCF-NY or CIT GP, the Seller, CITSF, CITCF-NY or CIT GP, 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 Securities will be subject
to the accuracy of the representations and warranties on the part of the Seller
and CITSF, and contained or incorporated herein, to the accuracy of the
statements of officers of the Seller and CITSF made pursuant to the provisions
hereof, to the performance by the Seller and CITSF of its obligations hereunder
and to the following additional conditions precedent:
(a) On the date of this Agreement, the Representative and the Seller
shall have received 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 CITSF 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.
(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
-13-
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.
(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) CITSF in which such officers shall state that,
to the best of each such officer's knowledge after reasonable
investigation, the representations and warranties of CITSF in this
Agreement and the other Basic Documents to which it is a party are true and
correct and that CITSF 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) 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 CIT GP
in which such officers shall state that, to the best of each such officer's
knowledge after reasonable investigation, (i) the representations and
warranties of CIT GP in the Trust Agreement are true and correct and (ii)
that CIT GP has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied under the Trust Agreement at or
prior to the Closing Date. Such certificate shall have attached thereto a
true and correct photocopy of the demand note furnished to CIT GP by CIT.
(e) 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
-14-
of the Trust, the Seller, CITSF, CITCF-NY or CIT GP which, in the judgment
of a majority in interest of the Underwriters (including the
Representative), materially impairs the investment quality of the
Securities or makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Securities; (ii) any
downgrading in the rating of any debt securities of CIT or CITSF 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
Securities.
(f) The Representative shall have received a written opinion of
in-house General Counsel of the Seller, CITSF and CITCF-NY, 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:
(i) The Seller and CITSF have each been duly organized and are
validly existing as corporations in good standing under the laws of
the State of Delaware. CITCF-NY has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of New York.
(ii) The Seller, CITSF and CITCF-NY 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.
-15-
(iii) The Seller, CITSF and CITCF-NY 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, CITSF and CITCF-NY
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, CITSF or CITCF-NY,
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 CITSF, and is a valid and binding
obligation of each of the Seller and CITSF enforceable against each of
the Seller 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, (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, CITSF or
CITCF-NY is a party have been duly authorized, executed and delivered
by each of the Seller, CITSF and CITCF-NY, and each constitutes a
valid and binding obligation of, each of the Seller, CITSF and
CITCF-NY, enforceable against each of the Seller, CITSF and CITCF-NY
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).
-16-
(vi) The execution and delivery by each of the Seller, CITSF and
CITCF-NY 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, CITSF and CITCF-NY, as applicable, and have been
duly authorized by all necessary corporate action on the part of the
Seller, CITSF and CITCF-NY, as applicable; and neither the issue and
sale of the Securities, nor the consummation of the transactions
contemplated by the Basic Documents nor the fulfillment of the terms
thereof, nor the grant of the security interest in the Collateral to
the Indenture Trustee pursuant to the Indenture 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, CITSF
or CITCF-NY pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument, if any, to which the
Seller, CITSF or CITCF-NY is a party or by which either may be bound
or to which the property or assets of the Seller, CITSF or CITCF-NY
are subject (which contracts, indentures, mortgages, loan agreements,
notes, leases and other such instruments, if any, have been identified
by the Seller, CITSF or CITCF-NY 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, CITSF or CITCF-NY 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, CITSF or CITCF-NY.
(vii) The Seller has duly authorized, executed and delivered the
written order to the Owner Trustee to execute and deliver the Issuer
Order to the Indenture Trustee.
(viii) The Seller has duly authorized, executed and delivered the
written order to the Owner Trustee to execute and deliver the
Certificates.
(ix) 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,
CITSF or CITCF-NY of the transactions contemplated by this Agreement,
-17-
except such as may be required under the Act or the Rules and
Regulations, or state securities or Blue Sky laws.
(x) There are no legal or governmental proceedings pending to
which the Seller, CITSF or CITCF-NY is a party or of which any
property of the Seller, CITSF or CITCF-NY 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 or (B)(1)
asserting the invalidity of all or part of any of the Basic Documents,
(2) seeking to prevent the issuance of the Notes or the Certificates,
(3) that could materially and adversely affect the Seller's, CITSF's
or CITCF-NY's obligations under any of the Basic Documents or (4)
seeking to affect adversely the federal or state income tax attributes
of the Securities.
(xi) Such counsel is familiar with CITSF's and CITCF-NY's
standard operating procedures relating to CITSF's and CITCF-NY's
acquisition of a perfected first priority security interest in the
vehicles financed by CITSF and CITCF-NY's pursuant to motor vehicle
retail installment sale contracts and motor vehicle installment loan
contracts in the ordinary course of CITSF's and CITCF-NY's business.
Other than with respect to mechanic's and materialmen's liens,
assuming that CITSF's standard procedures are followed with respect to
the perfection of security interests in the Financed Vehicles (and
such counsel has no reason to believe that either CITSF or CITCF-NY
has not or will not continue to follow its standard procedures in
connection with the perfection of security interests in the Financed
Vehicles), CITSF and CITCF-NY have acquired or will acquire a
perfected first priority security interest in the Financed Vehicles.
(xii) The Contracts are chattel paper, as defined in the UCC in
the State of New Jersey.
(xiii) The form of assignment to be executed and delivered by
CITSF to the Seller pursuant to the Purchase Agreement is sufficient
in form and substance to convey to the Seller all of CITSF's right,
title and interest in and to the Contracts and any security interests
securing the Contracts. 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
-18-
delivered to the Seller by CITSF, and the purchase price has been
paid to CITSF by the Seller in the manner specified in the Purchase
Agreement, all of CITSF's right, title and interest in and to the
Contracts and any security interests securing the Contracts will have
been conveyed to the Seller and the Seller will be the holder of a
valid, binding and enforceable security interest in the Contracts.
(xiv) The form of assignment to be executed and delivered by the
Seller to the Owner Trustee pursuant to the Sale and Servicing
Agreement is sufficient in form and substance to convey to the Owner
Trustee all of the Seller's right, title and interest in and to the
Contracts and any security interests securing the Contracts. When the
Basic Documents have each been duly executed and delivered by all
parties thereto, the assignment described in the Sale 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 Notes and the Certificates have been duly executed and duly
authenticated and delivered by the Owner Trustee or the Indenture
Trustee, as applicable, to or upon the order of the Seller in
accordance with the Sale and Servicing Agreement, the Indenture and
the Trust Agreement, all of the Seller's right, title and interest in
and to the Contracts and any security interests securing the Contracts
will have been conveyed to the Trust and the Trust will be the holder
of a valid and binding security interest in the Contracts.
(g) The Representative shall have received a written opinion of
in-house General Counsel to CIT GP, dated the Closing Date, in
substantially the form set forth below, with such changes therein as
counsel for the Underwriters shall reasonably agree:
(i) CIT GP is duly qualified and licensed and in good standing in
each jurisdiction where its business requires such qualification or
licensing.
(ii) The performance by CIT GP of its obligations under the Trust
Agreement will not, 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 CIT GP pursuant to, any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which CIT GP is a party or by which it may be bound or to which the
-19-
property or assets of CIT GP are subject (which material contracts,
indentures, mortgages, loan agreements, notes, leases and other such
instruments have been identified by CIT GP to such counsel), nor will
such action result in any violation of the provisions of the
certificate of incorporation or by-laws of CIT GP 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 CIT GP.
(iii) To the best of such counsel's knowledge, no filing or
registration with or notice to or consent, approval, authorization or
order of any Illinois or federal court or governmental authority or
agency is required for the consummation by CIT GP of the transactions
contemplated by the Trust Agreement, except such as may be required
under the Act or the Rules and Regulations, or state securities or
Blue Sky laws.
(iv) There are no legal or governmental proceedings pending to
which CIT GP is a party or of which any property of CIT GP 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 or (B)(1) asserting the invalidity of all or part of the
Trust Agreement, (2) that could materially and adversely affect CIT
GP's obligations under the Trust Agreement or (3) seeking to affect
adversely the federal or state income tax attributes of the
Securities.
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.
(h) The Representative shall have received a written opinion of
Xxxxxxxx, Xxxxxx, Xxxxxxxxxxx & Xxxxxx, special Illinois Counsel to CIT GP,
dated the Closing Date, in form and substance satisfactory to the
Representative and counsel for the Underwriters, to the effect that:
(i) CIT GP has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Illinois,
with the corporate power and corporate authority to perform its
obligations under the Trust Agreement.
-20-
(ii) The Trust Agreement has been duly authorized, executed and
delivered by CIT GP.
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.
(i) The Representative shall have received a written opinion of
Xxxxxxxxxx, Xxxxxxx, Xxxx, Xxxxxx and Xxxxxx, special local New Jersey
counsel for the Seller and CITSF, 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 Contracts 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 Contracts and the proceeds thereof under
Section 9-103 of the New Jersey UCC, when the financing statements
executed by CITSF 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 Contracts 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") 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
Contracts 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 Contracts and the Trust is the holder of valid,
binding and enforceable security interests in the Contracts; (b) the
Contracts constitute "chattel paper," as such term is defined in
Section 9-105 of the New Jersey UCC; (c) the New Jersey UCC governs
the perfection of the security interest in
-21-
the Contracts, the priority of those security interests and the
classification of the Contracts; (d) 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; (e) neither CITSF, the Seller
nor the Trust has assigned, nor will assign, any Contract to a buyer
who takes possession of it in the ordinary course of its business and
who acts without knowledge that such Contract is subject to a security
interest; (f) the Contracts exist and each of CITSF and the Seller,
respectively, has rights in the Contracts; (g) (i) no lien creditor
has executed on or attached to the Contracts prior to the perfection
of the security interests of the Seller or the Trust in the Contracts
and the proceeds thereof; and (ii) the Contracts 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); (h) no Contract, or the proceeds thereof, constitutes proceeds
of any property subject to the security interest of a third party; (i)
none of the proceeds of the Contracts 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; (j) the Seller, the Indenture Trustee and the
Owner Trustee have and will maintain a list describing the Contracts
for inspection during normal business hours by interested parties; (k)
the underlying facts in the officer certificates to be received by
such counsel are correct; (l) all financing statements or other notice
of liens, other than the financing statements, in which CITSF, 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 CITSF and the Seller and that no filings or
notices covering CITSF 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 (m) from and after the date
hereof CITSF, acting in a capacity as servicer and custodian for the
Trustee, will have taken, and will maintain, exclusive possession of
the Contracts; 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
Contracts with respect to which such government or agency is
obligated; (b) on the perfection of any security interests in the
collateral described in the
-22-
Contracts; (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); 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 Contracts 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; and (iv) Section 552 of the Bankruptcy Code with respect
to any Contracts acquired by the Seller or the Trust subsequent to the
commencement of a case by or against CITSF, the Seller or the Trust
under the Bankruptcy Code; (4) such counsel's opinions may be
inapplicable to any Subsequent Contracts unless, upon the proper
filing of New Jersey UCC financing statements describing the
Subsequent Contracts, (i) the assumptions, qualifications and
limitations in this letter shall be true as to conditions then
existing and as to the Subsequent Contracts, (ii) there are no changes
in law, and (iii) all searches have been updated and reveal no liens
against any of the Subsequent Contracts; 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 Contracts and the proceeds thereof
by CITSF to the Seller constitute true sales of such Contracts and,
assuming a court reached that conclusion, in such a case a court would
conclude that the Contracts and the proceeds would not be considered
-23-
property of the estate of CITSF pursuant to Section 541 of the
Bankruptcy Code, and the Contracts 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 Contracts 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
Contracts unless, upon the proper filing of UCC financing statements
describing the Subsequent Contracts, (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 Contracts.
(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 Contracts and the proceeds thereof
by the Seller to the Trust constitute true sales of such Contracts
and, assuming a court reached that conclusion, in such a case a court
would conclude that the Contracts and the proceeds would not be
considered property of the estate of the Seller pursuant to Section
541 of the Bankruptcy Code, and the Contracts 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 Contracts 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
Contracts unless, upon the proper filing of UCC financing statements
describing the Subsequent Contracts, (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 Contracts.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to
-24-
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.
(j) The Representative shall have received a written opinion of
Xxxxxxx Xxxx & Xxxxx, special counsel to the Seller, CITSF and CITCF-NY,
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) When the Notes have been duly executed, delivered and
authenticated in accordance with the Indenture and delivered and paid
for pursuant to this Agreement, the Notes will be validly issued,
outstanding and entitled to the benefits of the Indenture, except that
(A) 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) enforcement may
be limited by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(ii) The Registration Statement became effective under the Act as
of August 23, 1995 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.
(iii) The form of the Indenture has been qualified under the
Trust Indenture Act.
(iv) Neither the Trust Agreement nor the Sale and Servicing
Agreement 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
Securities as contemplated in the Prospectus and in this Agreement
become, required to register as an "investment company" under the
Investment Company Act.
(v) The statements in the Prospectus under the caption "The
Notes," "The Certificates" and "The Purchase Agreements and The Trust
Documents" insofar as such statements purport to summarize certain
terms of the Notes, the Certificates and the Basic Documents, present
a fair summary of such documents.
-25-
(vi) To the best of such counsel's knowledge, there are no
contracts 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.
(vii) The statements in the Prospectus under the headings
"Certain Federal Income Tax Consequences" and "ERISA Considerations,"
to the extent that they constitute matters of law or legal conclusions
with respect thereto are correct in all material respects.
(viii) The registration statement on Form S-1 (No. 33-94856)
relating to the Securities 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-1 (No. 33-94856)
relating to the Securities, 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, CITSF, Counsel to CITSF 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-1 (No. 33-94856) relating to the Securities, the
Registration Statement or Prospectus (except as stated in Sections 6(j)(v)
and 6(j)(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, CITSF and
CIT GP), no facts have come to their attention that leads such counsel to
believe that the registration statement on Form S-1 (No. 33-94856) relating
to the Securities, 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
-26-
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, 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.
(k) The Representative shall have received, in form and substance
satisfactory to the Representative and counsel for the Underwriters an
opinion of Xxxxxxx Xxxx & Xxxxx, special counsel to the Trust, dated the
Closing Date, regarding the creation of a security interest in the
Collateral in favor of the Indenture Trustee on behalf of the Noteholders
to the extent that a security interest in such Collateral can be created
under Article 9 of the UCC as currently in effect in the State of New York.
Such opinion may contain such assumptions, qualifications and limitations
as are customary in opinions of this type and as 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 York.
(l) The Representative shall have received an opinion of Xxxxxxx &
Xxxxxxx & Xxxxx, counsel for the Underwriters, dated the Closing Date, with
respect to the validity of the Securities 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.
(m) The Representative shall have received an opinion of 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:
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(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).
(n) The Representative shall have received an opinion of ,
counsel to the Indenture Trustee, dated the Closing Date, in form and
substance satisfactory to the Representative and counsel for the
Underwriters, to the effect that:
(i) The Indenture constitutes a legal, valid and binding
agreement of the Indenture Trustee, enforceable against the Indenture
Trustee 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 Indenture Trustee generally, as such laws
would apply in the event of bankruptcy, insolvency, liquidation,
receivership, or reorganization or any moratorium or similar
occurrence affecting the Indenture Trustee, and the application of
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or law).
(ii) The Notes have been duly authenticated and delivered by the
Indenture Trustee in accordance with the terms of the Indenture.
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(iii) The Indenture Trustee is a banking corporation validly
existing under the laws of the state of and has full power
and authority to enter into, and to take all action required of it,
under the Indenture.
(iv) The Indenture has been duly authorized, executed and
delivered by the Indenture Trustee.
(o) The Representative shall have received an opinion of , counsel to
the Owner Trustee, dated the Closing Date, in form and substance
satisfactory to the Representative and counsel for the Underwriters, to the
effect that:
(i) The Owner Trustee is a banking corporation duly incorporated
and validly existing under the laws of the State of .
(ii) The Owner Trustee has the full power and authority to accept
the office of owner trustee under the Trust Agreement and to enter
into and perform its obligations under the Trust Agreement and the
transactions contemplated thereby.
(iii) The execution and delivery of the Trust Agreement by the
Owner Trustee and the performance by the Owner Trustee of its
obligations under the Trust Agreement have been duly authorized by all
necessary action of the Owner Trustee and the Trust Agreement has been
duly executed and delivered by the Owner Trustee.
(iv) The Trust Agreement constitutes valid and binding
obligations of the Owner Trustee enforceable against the Owner 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 Owner 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.
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(vi) Neither the consummation by the Owner Trustee of the
transactions contemplated in the Trust Agreement, nor the fulfillment
of the terms thereof by the Owner 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 Owner
Trustee
(p) The Representative shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, special Delaware counsel for the Trust, dated the Closing
Date, in form and substance satisfactory to the Representative and counsel
for the Underwriters, to the effect that:
(i) The Trust Agreement is the legal, valid and binding agreement
of the Owner Trustee, CIT GP and the Seller, enforceable against the
Owner Trustee, CIT GP and the Seller in accordance with its terms
subject to (i) applicable bankruptcy, insolvency, moratorium,
receivership, reorganization, fraudulent conveyance and similar laws
relating to and affecting the rights and remedies of creditors
generally, (ii) principles of equity (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the effect
of applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
(ii) The Certificate of Trust has been duly filed with the
Secretary of State of the State of Delaware. The Trust has been duly
formed and is validly existing as a business trust under the Delaware
Business Trust Act.
(iii) The Trust has the power and authority under the Trust
Agreement and the Delaware Business Trust Act to execute, deliver and
perform its obligations under the Trust Agreement, the Indenture, the
Cash Collateral Agreement, the Sale and Servicing Agreement, the Notes
and the Certificates, and to issue the Notes and the Certificates.
(iv) The Trust has duly authorized and executed the Trust
Agreement, the Indenture, the Cash Collateral Agreement, the Sale and
Servicing Agreement, the Notes and the Certificates.
(v) The Trust has the power under the Trust Agreement and the
Delaware Business Trust Act to pledge the Trust Estate to the
Indenture Trustee as security for the Notes.
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(vi) The Certificates have been executed, authenticated and
delivered by the Owner Trustee upon the order of the Seller in
accordance with the Trust Agreement and when delivered to and paid for
pursuant to this Agreement, the Certificates will be validly issued
and outstanding, and the holder of record of any such Certificates
will be entitled to the benefits accorded by the Trust Agreement
subject to (i) applicable bankruptcy, insolvency, moratorium,
receivership, reorganization, fraudulent conveyance and similar laws
relating to and affecting the rights and remedies of creditors
generally, (ii) principles of equity (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the effect
of applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
(vii) The Notes have been executed, authorized and delivered by
the Owner Trustee upon the order of the Seller in accordance with the
Trust Agreement and the Indenture.
(viii) To the extent that Article 9 of the Uniform Commercial
Code as in effect in the State of Delaware (the "Delaware UCC") is
applicable (without regard to conflicts of laws principles), and
assuming that the security interest created by the Indenture in the
Collateral has been duly created and has attached, upon the filing of
a UCC-1 financing statement with the Secretary of State of the State
of Delaware, the Indenture Trustee will have a perfected security
interest in such Collateral and the proceeds thereof; and such
security interest will be prior to any other security interest granted
by the Trust that is perfected solely by the filing of financing
statements under the Delaware UCC, excluding purchase money security
interests under ss. 9-312 of the Delaware UCC and temporarily
perfected security interests in proceeds under ss. 9-306 of the
Delaware UCC.
(ix) No re-filing or other action is necessary under the Delaware
UCC in the State of Delaware in order to maintain the perfection of
the security interest referenced above except for the filing of
continuation statements at five-year intervals.
(x) Under ss. 3805(b) of the Delaware Business Trust Act, no
creditor of any Certificateholder shall have any right to obtain
possession of, or otherwise exercise legal or equitable remedies with
respect to, the property of the Trust except in accordance with the
terms of the Trust Agreement subject to (i) applicable bankruptcy,
insolvency, moratorium,
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receivership, reorganization, fraudulent conveyance and similar laws
relating to and affecting the rights and remedies of creditors
generally, (ii) principles of equity (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the effect
of applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
(xi) Under ss. 3805(c) of the Delaware Business Trust Act, and
assuming that the Sale and Servicing Agreement conveys good title to
the Contracts to the Trust as a true sale and not as a security
arrangement, the Trust, rather than the Certificateholders, is the
owner of the Contracts subject to (i) applicable bankruptcy,
insolvency, moratorium, receivership, reorganization, fraudulent
conveyance and similar laws relating to and affecting the rights and
remedies of creditors generally, (ii) principles of equity (regardless
of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
(xii) The execution and delivery by the Owner Trustee of the
Trust Agreement and, on behalf of the Trust, of the Indenture and the
Sale and Servicing Agreement do not require any consent, approval or
authorization of, or any registration or filing with, any governmental
authority of the State of Delaware, except for the filing of the
Certificate of Trust with the Secretary of State.
(xiii) Neither the consummation by the Owner Trustee of the
transactions contemplated by the Trust Agreement or, on behalf of the
Trust, the transactions contemplated by the Trust Agreement, Indenture
and the Sale and Servicing Agreement nor the fulfillment of the terms
thereof by the Owner Trustee will conflict with or result in a breach
or violation of any law of the State of Delaware.
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 Delaware.
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(q) The Notes shall have been rated "Aaa" by Xxxxx'x and "AAA" by S&P,
and the Certificates shall have been rated at least "A2" by Xxxxx'x and "A"
by S&P.
(r) 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.
(s) 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 (1) the transfer of the interest
in the Contracts and the proceeds thereof (A) from CITCF-NY to CITSF, to
the extent such Contracts have been transferred to CITSF from CITCF-NY, (B)
from CITSF to the Seller, (C) from the Seller to the Owner Trustee, on
behalf of the Trust, or the Trust, as the case may be, and (2) the grant of
the security interest by the Trust in the Contracts and the proceeds
thereof to the Indenture Trustee.
(t) 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
Securities 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 Securities as herein contemplated shall be in form and
substance satisfactory to the Representative and counsel for the
Underwriters.
7. Indemnification and Contribution. (a) CITSF 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
omission 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,
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damage, liability or action as such expenses are incurred; provided, however,
that (i) CITSF 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 CITSF 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 and (ii) CITSF 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 CITSF against any losses, claims, damages or liabilities
to which the Seller or CITSF 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 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 CITSF by such
Underwriter through the Representative specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Seller or CITSF
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
CITSF, which firm shall be designated in accordance with Section 7(c) hereof.
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(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
CITSF on the one hand and the Underwriters on the other from the offering of the
Securities but also the relative fault of the Seller and CITSF on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as any
other relevant equitable considerations. The relative benefits received by the
Seller and CITSF 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 Securities (before deducting expenses) received by the Seller and CITSF
bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by
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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, CITSF 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 Securities 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 CITSF under this Section shall be in addition to any
liability which the Seller or CITSF 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 CITSF, to each officer of the
Seller or CITSF who has signed the Registration Statement and to each person, if
any, who controls the Seller or CITSF 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 CITSF 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, CITSF or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 9 or if for any reason the purchase of the
Securities by the Underwriters is not consummated, the Seller, CITSF and
CITCF-NY shall remain responsible for the expenses to be paid or
-36-
reimbursed by it pursuant to Section 5 hereof and the respective obligations of
the Seller, CITSF and the Underwriters pursuant to Section 7 hereof shall remain
in effect. If the purchase of the Securities 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 CITSF 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 Securities.
9. Failure to Purchase the Securities. If any Underwriter or Underwriters
default in their obligations to purchase the principal amount of the Notes
and/or the Certificates opposite such Underwriter's name on Schedule I hereto
and the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of the Securities, the Representative may make
arrangements satisfactory to the Seller and CITSF for the purchase of such Notes
or 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 Notes and/or 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 Notes and/or the
Certificates with respect to such default or defaults exceeds 10% of the total
principal amount of the Securities and arrangements satisfactory to the
Representative, the Seller and CITSF for the purchase of such Notes and/or
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 CITSF, 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 Seven World Trade
Center, New York, NY 10048, Attention: Legal Department (facsimile number (212)
783-4009); if sent to the Seller, will be mailed, delivered or sent by facsimile
transmission and confirmed to it at The CIT Group Securitization Corporation II,
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,
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Attention: Xxxxxx X. Xxxxxx, Executive Vice President and Chief Financial
Officer (facsimile number (000) 000-0000); and if sent to CITSF, will be mailed,
delivered or sent by facsimile transmission and confirmed to it at The CIT
Group/Sales Financing, 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, the Trust or CIT GP any bankruptcy,
reorganization, arrangement, 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 CITSF 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.
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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, CITSF and the several
Underwriters in accordance with its terms.
Very truly yours,
THE CIT GROUP SECURITIZATION CORPORATION II
By:________________________________________
Name:
Title:
THE CIT GROUP/SALES FINANCING, INC.
By:_______________________________________
Name:
Title:
The foregoing Underwriting
Agreement is hereby confirmed and
accepted as of the date first above
written:
SALOMON BROTHERS INC
By:____________________________
Name:
Title:
Acting on behalf of itself and as the
Representative of the several
Underwriters.
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SCHEDULE I
Initial Principal
Amount of
Underwriter Notes
----------- -----------------
Salomon Brothers Inc . . . . . . . . . . . $
. . . . . . . ------------
Total $
============
Initial Principal
Balance of
Underwriter Certificates
----------- -----------------
Salomon Brothers Inc . . . . . . . . . . . $
. . . . . . . ------------
Total $
============
SCHEDULE II
Locations of Chief Executive Offices and Principal Places of Business
The CIT Group Securitization
Corporation II 000 XXX Xxxxx
Xxxxxxxxxx, XX 00000-0000
The CIT Group/Sales Financing, Inc. 000 XXX Xxxxx
Xxxxxxxxxx, XX 00000-0000
The CIT Group/Consumer Finance,
Inc. (NY) 000 XXX Xxxxx
Xxxxxxxxxx, XX 00000-0491
Locations of Records
The CIT Group Securitization
Corporation II 000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0000
The CIT Group/Sales Financing, Inc. 000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0000
The CIT Group/Consumer Finance,
Inc. (NY) 000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0610
SCHEDULE III
Original
Principal Class A
Security Amount $ Price % Price $ Rate%
-------- --------- ------- ------- -------
Notes
Total Price to Public: $
Total Price to Seller: -------------
Underwriting Discounts
and Commissions: $
SCHEDULE IV
Original Pass-
Principal Through
Security Balance $ Price % Price $ Rate%
-------- ---------- ------- ------- --------
Certificates
Total Price to Public: $
Total Price to Seller: -------------
Underwriting Discounts
and Commissions: $
