CIT RV OWNER TRUST 1996-A
$236,250,000 CLASS A 5.40% ASSET BACKED NOTES
$13,750,000 5.85% ASSET BACKED CERTIFICATES
THE CIT GROUP SECURITIZATION CORPORATION II
(SELLER)
February 15, 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 $236,250,000
principal amount of its Class A 5.40% Asset Backed Notes (the "Notes") and
$13,750,000 principal amount of its 5.85% 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 February 1, 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 February 1, 1996
(the "Cash Collateral Agreement") between the Trust, the Owner Trustee, the
Servicer and The Dai-Ichi Kangyo Bank, Limited, New York Branch (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 February 1, 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
February 1, 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 February 1, 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
February 1, 1996 (as amended and supplemented from time to time, the
"Indenture"), between the Trust and Xxxxxx Trust and Savings Bank (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 February 1, 1996 (the "Trust Agreement"), between the Seller and The Bank
of New York (Delaware) 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:
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(a) A registration statement on Form S-1 (No. 33- 65057) relating to the
Securities, including a form of prospectus, has been filed with the Securities
and Exchange Commission (the "Commission") and either (i) has been declared
effective under the Securities Act of 1933, as amended (the "Act"), and is not
proposed to be amended or (ii) is proposed to be amended by amendment or
post-effective amendment. If the Seller does not propose to amend such
registration statement and if any post-effective amendment to such registration
statement has been filed with the Commission prior to the execution and delivery
of this Agreement, the most recent such amendment has been declared effective by
the Commission. For purposes of this Agreement, "Effective Time" means (i) if
the Seller has advised the Representative that it does not propose to amend such
registration statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared effective by
the Commission, or (ii) if the Seller has advised the Representative that it
proposes to file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement, as amended
by such amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. "Effective Date" means the date of the Effective
Time. Such registration statement, as amended at the Effective Time, including
all material incorporated by reference therein and including all information (if
any) deemed to be a part of such registration statement as of the Effective Time
pursuant to Rule 430A(b) under the Act, is hereinafter referred to as the
"Registration Statement," and the form of prospectus 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
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will omit, to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. If the Effective Time is
subsequent to the execution and delivery of this Agreement: (i) on the Effective
Date, the Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act, the Trust Indenture Act and the Rules
and Regulations, (ii) on the Effective Date, the Registration Statement will not
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading and (iii) on the Effective Date, at the time of filing of
the Prospectus pursuant to Rule 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, CITSF and The CIT GP Corporation II ("CIT GP") 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. 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.
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(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 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.
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(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 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
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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, 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 or such other filings, registrations, notices,
consents, approvals, authorizations, orders or permits as have been obtained.
(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
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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, 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
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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 "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 February 15, 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 February 15, 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 February 22, 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
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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 $150,000
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 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 which consent shall not be
unreasonably withheld, 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.
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(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.
(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.
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(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.
(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).
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(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 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
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hereof, to the performance by the Seller and CITSF of its obligations hereunder
and to the following additional conditions precedent:
(a) (i) On the date of this Agreement, the Representative and the Seller
shall have received a draft of a letter, dated the date of delivery thereof, of
KPMG Peat Marwick LLP confirming that they are independent public accountants
with respect to the Seller and 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 and (ii) on
the Closing Date, a letter, dated the date of delivery thereof, of KPMG Peat
Marwick LLP confirming that they are independent public accountants with respect
to the Seller and CITSF within the meaning of the Act and the Rules and
Regulations, consistent with the letter delivered pursuant to clause (i) above
and otherwise in form and substance satisfactory to the Representative and
counsel for the Underwriters.
(b) If the Effective Time is not prior to the execution and delivery of
this Agreement, the Effective Time shall have occurred not later than 10:00
p.m., New York City time, on the date of this Agreement or such later date as
shall have been consented to by the Representative. If the Effective Time is
prior to the execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and Regulations and
Section 5(a) hereof. On or prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Seller, shall be contemplated by the Commission.
(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
- 14 -
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 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.
- 15 -
(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.
(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
- 16 -
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).
(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
- 17 -
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 and executed the written order to
the Owner Trustee to execute and deliver the Issuer Order to the Indenture
Trustee.
(viii) The Seller has duly authorized and executed 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, except such as may be
required under the Act or the Rules and Regulations, or state securities or
Blue Sky laws or such other filings, registrations, notices, consents,
approvals, authorizations, orders or permits as have been obtained.
(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 and are not disclosed therein or (B)(1)
asserting the invalidity of all or part of any of the Basic Documents, (2)
seeking to prevent the issuance of the 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
- 18 -
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 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 against CITSF.
(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
- 19 -
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 against the Seller.
(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 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 Delaware 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 or such other
filings, registrations, notices, consents, approvals, authorizations,
orders or permits as have been obtained.
- 20 -
(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 and are not disclosed therein
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.
(v) CIT GP has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
the corporate power and corporate authority to perform its obligations
under the Trust Agreement.
(vi) 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.
(h) 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
- 21 -
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 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
- 22 -
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 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; (iv) the priority of any
security interests perfected by possession; (v) the priority of security
interests which may be perfected by any means other than by filing a
financing statement under the New Jersey UCC and (and such counsel may note
that CITSF, the Seller and the Trust have respectively represented that no
- 23 -
such security interests exist) and (vi) 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.
(i) 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 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.
(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
- 24 -
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
counsel to the Underwriters. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction other than the
Federal law of the United States of America and the laws of the State of New
Jersey.
(i) The Representative shall have received a written opinion of Xxxxxxx
Xxxx & Xxxxx, 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
- 25 -
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
February 14, 1996 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 the
terms of such documents.
(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. 33-65057) 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
26
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. 33-65057) 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. 33-65057) 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. 33-65057) 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
Date contains, any untrue statement of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that such counsel need express no view with
respect to the financial statements, tables, schedules, exhibits, annexes and
other financial, statistical, numerical or portfolio data, or information on
economic conditions or financial condition of the portfolio included in or
incorporated by reference into, the Registration Statement or Prospectus.
Said counsel may state that they are admitted to practice only in the State
of New York, that they are not admitted to the Bar in any other State and are
not experts in the law of any other State and to the extent that the foregoing
opinions concern the laws of any other State such counsel may rely upon the
opinion of counsel satisfactory to the Underwriters and admitted to practice in
such jurisdiction. Any opinions relied upon by such counsel as aforesaid shall
be addressed to the Underwriters and shall be delivered together with the
27
opinion of such counsel, which shall state that such counsel believes that their
reliance thereon is justified.
(j) 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.
(k) 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.
(l) The Representative shall have received an opinion of Dechert, Price &
Xxxxxx, counsel to the Cash Collateral Depositor, dated the Closing Date, in
form and substance satisfactory to the Representative and counsel for the
Underwriters, to the effect that:
(i) The Cash Collateral Depositor is licensed to maintain a branch in
the State of New York and has full power and authority to enter into, and
to take all action required of it, under the Cash Collateral Agreement.
(ii) The Cash Collateral Agreement has been duly authorized, executed
and delivered by the Cash Collateral Depositor.
(iii) The Cash Collateral Agreement constitutes a legal, valid and
binding agreement of the Cash Collateral Depositor, enforceable against the
Cash Collateral Depositor in accordance with its terms, except as
enforceability thereof may be limited by bankruptcy, insolvency,
liquidation, reorganization, moratorium or other similar laws affecting the
enforcement of rights of creditors against the Cash Collateral Depositor
28
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).
(m) The Representative shall have received an opinion of Xxxxxxxxxx Xxxxxx
& Seikine, Japanese counsel to the Cash Collateral Depositor, in form and
substance satisfactory to the Representative and counsel for the Underwriters,
to the effect that the Cash Collateral Depositor is a banking corporation
validly existing under the laws of Japan.
(n) The Representative shall have received an opinion of Xxxxxx & Xxxxxx,
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.
(o) The Representative shall have received an opinion of in-house 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 Trustee is an Illinois banking corporation validly
existing under the laws of the state of Illinois and has full power and
authority to enter into, and to take all action required of it, under the
Indenture.
29
(ii) The Indenture has been duly authorized, executed and delivered by
the Indenture Trustee.
(p) The Representative shall have received an opinion of Xxxxxxxx, Xxxxxx &
Finger, 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 Delaware banking corporation duly
incorporated and validly existing under the laws of the state of Delaware.
(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.
(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
30
violation of, or constitute a default under the Article of Association,
By-Laws or other organizational documents of the Owner Trustee
(q) 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.
(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
31
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,
receivership, reorganization, fraudulent conveyance and similar laws
relating to and affecting the rights and remedies of creditors generally,
32
(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.
(r) 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.
33
(s) 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.
(t) 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.
(u) 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,
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
34
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 (ii) such indemnity with regard to any related
preliminary prospectus shall not inure to the benefit of each Underwriter (or
any person controlling each Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Prospectus (or, in the
event it is amended or supplemented, such Prospectus as amended or supplemented)
at or prior to the confirmation of the sale of such Securities to such person if
such Prospectus (or, in the event it is amended or supplemented, such Prospectus
as amended or supplemented) was timely forwarded to each Underwriter as required
by this Agreement and the untrue statement or omission of a material fact
contained in such related preliminary prospectus was corrected in the Prospectus
(or, in the event it is amended or supplemented, such Prospectus as amended or
supplemented) and (iii) 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
35
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.
(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
36
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 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
37
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 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
38
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,
Attention: Xxxxxx X. Xxxxx, 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
39
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.
40
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.
41
SCHEDULE I
Initial Principal
Amount of
Underwriter Notes
----------- -----------------
Salomon Brothers Inc ............................. $118,125,000
UBS Securities Inc. .............................. 118,125,000
------------
Total $236,250,000
============
Initial Principal
Amount of
Underwriter Certificates
----------- -----------------
Salomon Brothers Inc ............................. $ 6,875,000
UBS Securities Inc. .............................. 6,875,000
-----------
Total $13,750,000
===========
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 236,250,000 99.976 236,193,300 5.40
Total Price to Public: $236,193,300
Total Price to Seller: 235,425,488
------------
Underwriting Discounts
and Commissions: $ 767,812
SCHEDULE IV
Original Pass-
Principal Through
Security Amount $ Price % Price $ Rate%
-------- -------------- ------- -------------- -------
Certificates 13,750,000 99.791 13,721,262 5.85
Total Price to Public: $13,721,262
Total Price to Seller: 13,652,512
-----------
Underwriting Discounts
and Commissions: $ 68,750
