HOME EQUITY LOAN ASSET BACKED CERTIFICATES, SERIES 1997-1
THE CIT GROUP SECURITIZATION CORPORATION III
(DEPOSITOR)
July 16, 1997
UNDERWRITING AGREEMENT
XXXXXX XXXXXXX & CO. INCORPORATED,
as Representative of the
Several Underwriters (the "Representative"),
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. The CIT Group Securitization Corporation III,
a Delaware corporation (the "Depositor") and a wholly-owned limited-purpose
finance subsidiary of The CIT Group Holdings, Inc., a Delaware corporation
("CIT"), and CIT (collectively, the "Registrants") have previously filed a
registration statement with the Securities and Exchange Commission relating to
the issuance and sale from time to time of up to $1,000,000,000 of home equity
loan asset backed certificates, all or a portion of which may be supported by a
limited guarantee of CIT. Each of such certificates and the limited guarantee of
CIT are registered under the registration statement referred to in Section 2(a)
(collectively, the "Registered Securities") and the Depositor has authorized the
issuance and sale to the Underwriters of the Home Equity Loan Asset Backed
Certificates, Series 1997-1 listed on Schedule I hereto (the "Offered
Certificates," and, together with the Class B-2 Certificates, the
"Certificates") evidencing interests in a pool (the "Mortgage Loan Pool") of
certain home equity loans (the "Mortgage Loans"). The Mortgage Pool will consist
of two groups of Mortgage Loans. The Certificates will be issued under a Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement") to be dated as
of July 1, 1997 among the Depositor, The CIT Group/Consumer Finance, Inc.
("CITCF" or "Master Servicer") a Delaware corporation and a wholly-owned
subsidiary of CIT and The Bank of New York, as trustee (the "Trustee"). The
Certificates will evidence specified interests in the Mortgage Loans and certain
other property held in trust with respect to such Certificates. The Mortgage
Loans and certain other assets of a Trust (the "Trust") will be sold by CITCF to
the Depositor pursuant to a Purchase Agreement (the "Purchase Agreement") to be
dated as of July 1, 1997 between CITCF and the Depositor and, in turn, by the
Depositor to the Trust pursuant to the Pooling and Servicing Agreement. Certain
of the Mortgage Loans and other property sold by CITCF to the Depositor will
first be purchased by CITCF from (i) The CIT Group/Consumer Finance, Inc. (NY)
("CITCF-NY") pursuant to a Purchase Agreement to be dated as of July 1, 1997
(the "CITCF-NY Sale Agreement") between CITCF-NY and CITCF and (ii) The CIT
Group/Sales Financing, Inc. ("CITSF") pursuant to a Purchase Agreement to be
dated as of July 1, 1997 (the "CITSF Sale Agreement") between CITSF and CITCF.
CITCF will enter into a subservicing agreement with CITSF (the "Sub-Servicer")
dated as of July 1, 1997 (the "Subservicing Agreement") pursuant to which CITSF
will perform all of the servicing responsibilities of the Master Servicer under
the Pooling and Servicing Agreement (except as described in the Pooling and
Servicing Agreement and in the Subservicing Agreement). The Trustee will be an
intended third-party beneficiary of the Subservicing Agreement and will have the
right to enforce such Subservicing Agreement as if it were a party thereto
The firm or firms listed on the attached Schedule I hereto
which agreed to purchase the Offered Certificates are hereinafter referred to as
the Underwriters (the "Underwriters") of such Offered Certificates, and the
representative of the Underwriters to whom this Underwriting Agreement (the
"Agreement") is addressed is hereinafter referred to as the Representative (the
"Representative").
Capitalized terms used herein and not otherwise defined shall
have the meanings given them in the Pooling and Servicing Agreement.
2. Representations and Warranties of the Depositor, CITCF and
CIT. Each of the Depositor, and CITCF, jointly and severally and CIT with
respect to the representations and warranties appearing in clauses (a), (b),
(c)(i), (d), (e)(ii) and (j)(ii) below, 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 Offered Certificates pursuant to Section 3 hereof (the "Closing
Date") that:
(a) A registration statement on Form S-3 (No. 333-22283),
including a prospectus, relating to the Registered Securities has been filed
with the Securities and Exchange Commission ("Commission") and, as amended, has
become effective. Such registration statement, as amended as of the date of this
Agreement, is hereinafter referred to as the "Registration Statement," and the
prospectus included in such Registration Statement, as supplemented to reflect
the terms of the Offered Certificates as first filed with the Commission after
the date of this Agreement pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Securities Act of 1933, as amended ("Act"), including all
material incorporated by reference therein, is hereinafter referred to as the
"Prospectus." A "preliminary prospectus" means any form of prospectus, including
any prospectus supplement, relating to the Offered Certificates used prior to
the date of this Agreement that is subject to completion.
(b) On the effective date of the registration statement
relating to the Registered Securities, such registration statement conformed in
all respects to the requirements of the Act and the rules and regulations of the
Commission promulgated under the Act ("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 on the date of this Agreement the Registration Statement and
the preliminary prospectus conform, and at the time of the filing of the
Prospectus in accordance with Rule 424(b), the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents include,
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or will include any untrue statement of a material fact or omits, or will omit,
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, except that the foregoing does not apply
to statements in or omissions from any of such documents based upon (i) written
information furnished to the Depositor by any Underwriter through the
Representative specifically for use therein, it being understood that the only
such information consists of the Underwriters' Information (as defined in
Section 8(a)) or (ii) the Underwriter Derived Information (as defined in Section
7 below) contained in the Current Report (as defined in Section 5(m) below) or
in any amendment thereof or supplement thereto, incorporated by reference in
such Registration Statement or such Prospectus (or any amendment thereof or
supplement thereto). The Depositor and CITCF 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 8(a)).
(c) (i) CIT meets the requirements for use of Form S-3 under
the Act and (ii) the Depositor meets the requirements for use of Form S-3 under
the Act.
(d) The documents incorporated by reference in the
Registration Statement and Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material respects
with the requirements of the Securities Exchange Act of 1934, as amended (the
"1934 Act"), and the rules and regulations of the Commission thereunder.
(e) Each of the Depositor, CITCF and CITSF have been duly
organized and are validly existing as corporations in good standing under the
laws of the State of Delaware. CITCF-NY has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of New
York. Each of the Depositor, CITCF, CITSF and CITCF-NY have corporate power and
authority to own, lease and operate their respective properties and conduct
their respective businesses as described or incorporated 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 Depositor, CITCF,
CITSF and CITCF-NY 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 and (ii) CIT has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Delaware 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).
"Basic Documents" means this Agreement, the Pooling and Servicing Agreement, the
Subservicing Agreement, the Purchase Agreement, the CITCF-NY Sale Agreement, the
CITSF Sale Agreement and the Certificate Depository Agreement.
(f) The Depositor is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance of any
material obligation, agreement,
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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
Depositor 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.
(g) None of CITCF, CITSF or 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 any
of CITCF, 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.
(h) The execution and delivery by the Depositor on the Closing
Date of the Basic Documents to which it is a party and the performance of its
obligations thereunder will be within the corporate power of the Depositor and
duly authorized by all necessary corporate action on the part of the Depositor
on and as of the Closing Date; and neither the issuance and sale of the Offered
Certificates to the Underwriters, nor the execution and delivery by the
Depositor of the Basic Documents to which it is a party, nor the consummation by
the Depositor of the transactions therein contemplated, nor compliance by the
Depositor with the provisions hereof or thereof, will materially conflict with
or result in a material breach of, or constitute a material default under, any
of the provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Depositor or its properties or the certificate of
incorporation or by-laws of the Depositor or any of the provisions of any
indenture, mortgage, contract or other instrument to which the Depositor is a
party or by which the Depositor 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.
(i) The execution and delivery by each of CITCF, 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 CITCF, CITSF and CITCF-NY and duly authorized by all
necessary corporate action on the part of each of CITCF, CITSF and CITCF-NY on
and as of the Closing Date; and neither the issuance and sale of the Offered
Certificates to the Underwriters, nor the execution and delivery by CITCF, CITSF
and CITCF-NY of any of the Basic Documents to which it is a party, nor the
consummation by CITCF, CITSF and CITCF-NY of the transactions therein
contemplated, nor compliance by CITCF, CITSF and CITCF-NY with the provisions
hereof or thereof, will materially conflict with or result in a material breach
of, or constitute a material default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on CITCF, CITSF
or CITCF-NY or their respective properties or the certificate of incorporation
or by-laws of CITCF, CITSF or CITCF-NY, or any of the provisions of any
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material indenture, mortgage, contract or other instrument to which CITCF, CITSF
or CITCF-NY is a party or by which CITCF, 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.
(j) (i) This Agreement has been duly authorized, executed and
delivered by each of the Depositor and CITCF, and it constitutes a legal, valid
and binding instrument enforceable against each of the Depositor and CITCF in
accordance with its terms, subject (x) to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors' rights
generally, (y) as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law) and (z) as
to enforceability with respect to rights of indemnity thereunder, to limitations
of public policy under applicable securities laws and (ii) this Agreement has
been duly authorized, executed and delivered by CIT, and it constitutes a legal,
valid and binding instrument enforceable against CIT in accordance with its
terms, subject (x) to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally, (y) as
to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (z) as to
enforceability with respect to rights of indemnity thereunder, to limitations of
public policy under applicable securities laws.
(k) The Pooling and Servicing Agreement, the Subservicing
Agreement and the Purchase Agreement when executed and delivered on the Closing
Date and, in the case of the Pooling and Servicing Agreement when executed and
delivered by the Trustee, will be duly authorized, executed and delivered by
each of the Depositor, CITCF and CITSF, and each will constitute a legal, valid
and binding instrument enforceable against each of the Depositor, CITCF 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).
(l) The Offered Certificates, when duly and validly authorized
by the Depositor, and, when executed and authenticated as specified in the
Pooling and Servicing Agreement, will be validly issued and outstanding and will
be entitled to the benefits of the Pooling and Servicing Agreement.
(m) 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 Depositor, CITCF, CITSF
and CITCF-NY 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.
(n) The Depositor, CITCF, CITSF and CITCF-NY 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
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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 Certificateholders under the Pooling and Servicing
Agreement and neither the Depositor, CITCF, CITSF nor CITCF-NY 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 Depositor, CITCF, CITSF or CITCF-NY or their ability to
perform their respective obligations under any of the Basic Documents to which
it is a party.
(o) As of the Closing Date, the Mortgage Loans and related
property will have been duly and validly assigned to the Trustee in accordance
with the Basic Documents; and when such assignment is effected, a duly and
validly perfected transfer of all such Mortgage Loans will have occurred,
subject to no prior lien, mortgage, security interest, pledge, charge or other
encumbrance created by the Depositor, CITCF, CITSF or CITCF-NY.
(p) As of the Closing Date, each of the Mortgage Loans will
meet the eligibility criteria described in the Prospectus.
(q) The chief executive office of each of the Depositor,
CITCF, 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.
(r) Except as disclosed or incorporated by reference in the
Prospectus, since the date of the latest audited financial statements of CIT
included or incorporated by reference in the Prospectus there has been no
material adverse change, nor any development or event which is reasonably likely
to result in a material adverse change, in the condition (financial or other),
business, properties or results of operations of CITSF and its subsidiaries
taken as a whole.
(s) Neither the Depositor, nor CITCF nor the Trust Fund
created by the Pooling and Servicing Agreement will be subject to registration
as an "investment company" under the Investment Company Act of 1940, as amended
(the "1940 Act").
(t) In connection with the offering of the Offered
Certificates in the State of Florida, the Depositor 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 Depositor, CITCF, CITSF and CITCF-NY 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.
(v) The Depositor has filed the preliminary prospectus
supplement relating to the Offered Certificates pursuant to and in accordance
with Rule 424(b).
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3. Purchase, Sale and Delivery of Offered Certificates. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Depositor agrees to
sell to the Underwriters, and the Underwriters agree, severally and not jointly,
to purchase from the Depositor, the aggregate principal amounts of the Class of
Offered Certificates set forth opposite the name of such Underwriters in
Schedule I hereto at a purchase price equal to the "Price $" specified for such
Class of Offered Certificates opposite the name of such Underwriter on Schedule
I hereto with respect to such Class of Offered Certificates plus accrued
interest, if any, at the Pass Through Rate for such Class of Offered
Certificates calculated from (and including) July 23, 1997, to (but excluding)
the Closing Date.
Against payment of the purchase price by wire transfer of
immediately available funds to the Depositor, or to such bank as may be
designated by the Depositor, the Depositor will deliver the Offered Certificates
to the Representative, for the account of the Underwriters, at the office of
Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on July 23,
1997 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 Depositor
determine, such time being herein referred to as the "Closing Date." The Offered
Certificates to be so delivered will be initially represented by one or more
Offered Certificates registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of the
Offered Certificates will be represented by book entries on the records of DTC
and participating members thereof. Definitive Certificates will be available
only under the limited circumstances set forth in the Pooling and Servicing
Agreement. The certificates evidencing the Offered Certificates will be made
available for checking and packaging at the offices of Xxxxxxx Xxxx & Xxxxx LLP
at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Certificates for sale to the public as
set forth in the Prospectus.
5. Covenants of the Depositor and CITCF. Each of the Depositor
and CITCF, jointly and severally, covenants and agrees with the several
Underwriters that:
(a) The Depositor will file the Prospectus, properly
completed, with the Commission pursuant to and in accordance with subparagraph
(2) (or, if applicable and if consented to by the Representative, which consent
shall not be unreasonably withheld, subparagraph (5)) of Rule 424(b) no later
than the second business day following the earlier of the date of the
determination of the offering price or the date it is first used. The Depositor
will advise the Representative promptly of any such filing pursuant to Rule
424(b).
(b) The Depositor will advise the Representative promptly of
any proposal to amend or supplement 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 Depositor will also advise the Representative promptly of any amendment
or supplementation of the Registration Statement or the Prospectus and of the
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institution by the Commission of any stop order proceedings in respect of the
Registration Statement and will use its best efforts to prevent the issuance of
any such stop order and to obtain as soon as possible its lifting, if issued.
(c) The Depositor will arrange for the qualification of the
Offered Certificates for offering and sale under the securities laws of such
jurisdictions in the United States as the Representative may reasonably
designate and will continue such qualifications in effect so long as necessary
under such laws for the distribution of such Offered Certificates, provided that
in connection therewith the Depositor 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 Offered
Certificates is required to be delivered by law in connection with sales by any
Underwriter or dealer, either (i) any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or (ii) for any other reason it shall be
necessary to amend or supplement the Prospectus to comply with the Act, the
Depositor 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) The Depositor will timely prepare and file all periodic
reports required to be filed pursuant to Section 15(d) of the 1934 Act as
interpreted by the Commission through certain No-Action Letters, on behalf of
the Trust, with the Commission until no longer required to do so as permitted by
Section 15(d) of the 1934 Act.
(f) The Depositor will furnish to each of the Underwriters
copies of the Registration Statement (two of which will be signed and include
all exhibits), each related preliminary prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Representative may from time to time reasonably
request.
(g) So long as any of the Offered Certificates are
outstanding, the Depositor or CITCF, as the case may be, will furnish to the
Representative copies of all written reports or other written communications
(financial or otherwise) furnished or made available to Certificateholders, and
deliver to the Representative during such same period, (i) as soon as they are
available, copies of any reports and financial statements filed by or on behalf
of the Trust by the Registrants with the Commission pursuant to the 1934 Act and
(ii) such additional information concerning the Depositor or CITCF (relating to
the Mortgage Loans, the servicing thereof, the ability of CITCF to act as Master
Servicer or the ability of CITSF to act as Sub-
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Servicer), the Offered 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 Depositor and CITCF 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 Offered Certificates, (ii) any fees charged by Xxxxx'x Investors Service,
Inc. ("Moody's") and Standard & Poor's Structured Ratings Group, a division of
The XxXxxx-Xxxx Companies, Inc. ("S&P" and, together with Moody's, the "Rating
Agencies") for the rating of the Offered Certificates, (iii) the expenses
incurred in printing, reproducing and distributing the registration statement as
filed, the Registration Statement, preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto required pursuant to Section
5(d) hereof), (iv) the fees and disbursements of counsel to the Depositor, and
CITCF and the independent public accountants of the Depositor, (v) the fees and
disbursements of the Trustee and its counsel, (vi) the fees of DTC in connection
with the book-entry registration of the Offered Certificates, (vii) the
reasonable expenses of the Representative including the reasonable fees and
disbursements of its counsel, in connection with the initial qualification of
the Offered Certificates for sale in the jurisdictions that the Representative
may designate pursuant to Section 5(c) hereof and in connection with the
preparation of any blue sky survey and legal investment survey and (viii) the
printing and delivery to the Underwriters, in such quantities as the
Underwriters may reasonably request, of copies of the Basic Documents. Subject
to Section 9 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 Offered Certificates for sale in the jurisdictions that the Representative
may designate pursuant to Section 5(c) hereof and in connection with the
preparation of any blue sky survey and legal investment survey).
(i) On or before the Closing Date, the Depositor, CITCF, CITSF
and CITCF-NY shall cause each of their respective books and records (including
any computer records) relating to the Mortgage Loans to be marked to show the
Trust's absolute ownership of the Mortgage Loans, and from and after the Closing
Date neither the Depositor, CITCF, as Master Servicer, nor CITSF, as
Sub-Servicer, shall take any action inconsistent with the Trust's ownership of
such Mortgage Loans, other than as permitted by the Pooling and Servicing
Agreement.
(j) Until the retirement of the Offered Certificates, or until
such time as the Underwriters shall cease to maintain a secondary market in the
Offered Certificates, whichever occurs first, the Depositor or CITCF will
deliver to the Representative the certified public accountants' annual
statements of compliance furnished to the Trustee pursuant to the Pooling and
Servicing Agreement, as soon as such statements are furnished to the Trustee.
(k) To the extent, if any, that either of the ratings provided
with respect to the Offered Certificates by either Rating Agency is conditional
upon the furnishing of documents or
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the taking of any other actions by the Depositor, CITCF, CITSF or CITCF-NY, 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 such document shall be
provided to the Representative at the time it is delivered to the Rating
Agencies.
(l) The Depositor will prepare, or cause to be prepared, and
file, or cause to be filed, a timely election to treat the Mortgage Loan Pool as
a "real estate mortgage investment conduit" ("REMIC") as such terms defined in
the Internal Revenue Code of 1986, as amended (the "Code"), for Federal income
tax purposes.
(m) Provided that the Depositor has received the letter from
KPMG Peat Marwick LLP, described in Section 7(a) relating to the Computational
Materials, the Depositor will cause such Computational Materials (as defined in
Section 7 below) with respect to the Offered Certificates which are delivered to
the Depositor as provided in Section 7 below to be filed with the Commission on
a Current Report on Form 8-K (the "Current Report") not later than the date on
which a prospectus supplement relating to the Offered Certificates is available
for distribution to investors.
9. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Offered
Certificates will be subject to the accuracy of the representations and
warranties on the part of the Depositor, CITCF, CIT and CITSF, and contained or
incorporated herein, to the accuracy of the statements of officers of the
Depositor, CITCF, CIT and CITSF made pursuant to the provisions hereof, to the
performance by the Depositor, CITCF, CIT 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 Depositor 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 Depositor and CITCF 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 Depositor and CITCF 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) 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 Registrants,
shall be contemplated by the Commission.
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(c) The Representative shall have received an officer's
certificate, dated the Closing Date, executed by any two of the President, any
Vice President, the principal financial or the principal accounting officer of
(i) the Depositor 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 Depositor in this Agreement and the other
Basic Documents to which it is a party are true and correct, that the Depositor
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, (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 the 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, (iii) CITCF in which such officers shall state that, to the best
of each such officer's knowledge after reasonable investigation, the
representations and warranties of CITCF in this Agreement and the other Basic
Documents to which it is a party are true and correct and that CITCF 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
and (iv) CIT 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 CIT in this Agreement are true and correct.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Trust, the Depositor, CITCF, CITSF or CITCF-NY which, in the
judgment of the Representative, materially impairs the investment quality of the
Offered Certificates or makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Offered Certificates; (ii) any
downgrading in the rating of any debt securities of CIT, CITCF 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 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 Offered Certificates.
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(e) The Representative shall have received a written opinion
of in-house General Counsel of the Depositor, CITCF, 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 Depositor, CITCF 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 Depositor, CITCF, 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 Depositor, CITCF, CITSF and CITCF-NY 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 Depositor, CITCF, 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
Depositor, CITCF, 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 Depositor and CITCF, and is a valid and
binding obligation of each of the Depositor and CITCF enforceable
against each of the Depositor and CITCF in accordance with its
terms, except that (A) such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally, (B) such enforcement may be limited by general
principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law), and (C) the enforceability
as to rights to indemnity thereunder may be limited under
applicable law.
(v) Each of the Basic Documents to which the Depositor,
CITCF, CITSF or CITCF-NY is a party has been duly authorized,
executed and delivered by each of the Depositor, CITCF, CITSF and
CITCF-NY, and each constitutes a valid and binding obligation of,
each of the Depositor, CITCF, CITSF and CITCF-NY, enforceable
against each of the Depositor, CITCF, 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
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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 Depositor,
CITCF, 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
Depositor are within the corporate power of the Depositor, CITCF,
CITSF and CITCF-NY, as applicable, and have been duly authorized
by all necessary corporate action on the part of the Depositor,
CITCF, CITSF and CITCF-NY, as applicable; and neither the issue
and sale of the Offered Certificates, nor the consummation of the
transactions contemplated by the Basic Documents nor the
fulfillment of the terms thereof will, to the best of such
counsel's actual 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
Depositor, CITCF, CITSF or CITCF-NY pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument, if any, to which the Depositor, CITCF, CITSF or
CITCF-NY is a party or by which either may be bound or to which
the property or assets of the Depositor, CITCF, CITSF or CITCF-NY
are subject (but only as to contracts, indentures, mortgages,
loan agreements, notes, leases and other such instruments which
have been identified by the Depositor, CITCF, 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 Depositor, CITCF, CITSF or CITCF-NY or, to the best of such
counsel's actual knowledge, any law, administrative regulation or
administrative or court decree of any state or federal courts,
regulatory bodies, other body, governmental entity or arbitrator
having jurisdiction over the Depositor, CITCF, CITSF or CITCF-NY.
(vii) The Depositor has duly authorized and executed the
written order to the Trustee to execute and deliver the Offered
Certificates.
(viii) To the best of such counsel's actual 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 Depositor, CITCF, 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.
(ix) There are no legal or governmental proceedings pending
to which the Depositor, CITCF, CITSF or CITCF-NY is a party or of
which any property of the Depositor, CITCF, 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
Offered Certificates, (3) that
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could materially and adversely affect the Depositor's, CITCF'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 Offered Certificates.
(x) Such counsel is familiar with CITCF's, CITSF's and
CITCF-NY's standard operating procedures relating to CITCF's,
CITSF's and CITCF-NY's acquisition of a duly recorded mortgage,
deed of trust or similar interest (a "mortgage") against homes
financed by CITCF, CITSF and CITCF-NY pursuant to home equity
loans in the ordinary course of CITCF's, CITSF's and CITCF-NY's
business. Assuming that CITCF's standard procedures are followed
with respect to the acquisition and recording of mortgages in the
homes securing the Mortgage Loans (the "Mortgaged Homes") (and
such counsel has no reason to believe that any of CITCF, CITSF or
CITCF-NY has not or will not continue to follow its standard
procedures in connection with the acquisition and recording of
mortgages in the Mortgaged Homes), CITCF, CITSF and CITCF-NY have
recorded or will record a mortgage against the applicable
Mortgaged Homes.
(xi) The CITCF-NY Sale Agreement is sufficient in form and
substance to convey to CITCF all of CITCF-NY's right, title and
interest in and to the related Mortgage Loans. When the CITCF-NY
Sale Agreement has been duly executed and delivered by all
parties thereto, and the purchase price has been paid to CITCF-NY
by CITCF in the manner specified in the CITCF-NY Sale Agreement,
all of CITCF-NY's right, title and interest in and to the related
Mortgage Loans will have been conveyed to CITCF, except as such
interest in the related Mortgaged Homes may be limited by the
absence of a duly recorded mortgage assignment.
(xii) The CITSF Sale Agreement is sufficient in form and
substance to convey to CITCF all of CITSF's right, title and
interest in and to the related Mortgage Loans. When the CITSF
Sale Agreement has been duly executed and delivered by all
parties thereto, and the purchase price has been paid to CITSF by
CITCF in the manner specified in the CITSF Sale Agreement, all of
CITSF's right, title and interest in and to the related Mortgage
Loans will have been conveyed to CITCF, except as such interest
in the related Mortgaged Homes may be limited by the absence of a
duly recorded mortgage assignment.
(xiii) The Purchase Agreement is sufficient in form and
substance to convey to the Depositor all of CITCF's right, title
and interest in and to the Mortgage Loans. When the Purchase
Agreement has been duly executed and delivered by all parties
thereto, and the purchase price has been paid to CITCF by the
Depositor in the manner specified in the Purchase Agreement, all
of CITCF's right, title and interest in and to the Mortgage Loans
will have been conveyed to the Depositor, except as such interest
in the related Mortgaged Homes may be limited by the absence of a
duly recorded mortgage assignment.
(xiv) The Pooling and Servicing Agreement is sufficient in
form and substance to convey to the Trustee all of the
Depositor's right, title and interest in and to the
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Mortgage Loans. When the Basic Documents have each been duly
executed and delivered by all parties thereto, the purchase price
therefor has been paid to the Depositor by the Trust in the
manner specified in the Pooling and Servicing Agreement, and the
Offered Certificates have been duly executed and duly
authenticated and delivered by the Trustee to or upon the order
of the Depositor in accordance with the Pooling and Servicing
Agreement, all of the Depositor's right, title and interest in
and to the Mortgage Loans will have been conveyed to the Trust
and the Trust will be the holder of a valid and binding interest
in the Mortgage Loans against the Depositor, except that, until
such time as assignments of mortgages are recorded in the name of
the Trustee, on behalf of the Trust, in the appropriate
jurisdictions (x) the Trustee may not, in certain jurisdictions,
be independently able to enforce the mortgage against the related
Mortgaged Homes or the related mortgagor, (y) CITCF-NY, CITSF or
CITCF, as the case may be, could record an assignment of a
mortgage in the name of a third party or record a discharge and
satisfaction of a mortgage, and (z) any notice given to the
holder of record of a mortgage would be given to CITCF-NY, CITSF
or CITCF, as the case may be.
(xv) The documents incorporated by reference in the
Registration Statement and Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act
and the Rules and Regulations, except as to the financial
statements and other financial and statistical data included
therein, to which such counsel need not express any opinion.
Said counsel may state that they are admitted to practice only
in the States of New York and New Jersey, as applicable, that they are not
admitted to the Bar in any other State, that they do not express an opinion as
to the laws of any jurisdiction other than the laws of the States of New York
and New Jersey, as applicable, the General Corporate Law of the State of
Delaware and the laws of the United States of America.
(f) The Representative shall have received an opinion of
in-house General Counsel of CIT 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) CIT has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Delaware.
(ii) This Agreement has been duly authorized, executed and
delivered by CIT and is a valid and binding obligation of CIT
enforceable against CIT 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).
-15-
(iii) The signing of the Registration Statement by CIT is
within the corporate power of CIT and has been duly authorized by
all necessary corporate action on the part of CIT; the
consummation of the transactions contemplated herein and the
fulfillment of the terms hereof 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
pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which CIT is a
party or by which it may be bound or to which the property or
assets of CIT are subject (but only as to material contracts,
indentures, mortgages, loan agreements, notes, leases and other
such instruments which have been identified by CIT to such
counsel), nor will such action result in any violation of the
provisions of the certificate of incorporation or by-laws of CIT
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.
(iv) The documents with respect to CIT incorporated by
reference in the Registration Statement and Prospectus, at the
time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the 1934 Act and the Rules and Regulations,
except as to the financial statements and other financial and
statistical data included therein, to which such counsel need not
express any opinion.
(v) To the best of such counsel's knowledge, there are no
contracts or documents of CIT which are required to be filed as
exhibits to the Registration Statement pursuant to the Act or the
Rules and Regulations including any documents incorporated by
reference pursuant to Item 12 of Form S-3 which were filed under
the 1934 Act which have not been so filed.
Said counsel may state that they are admitted to practice only
in the States of New York and New Jersey, as applicable, that they are not
admitted to the Bar in any other State, that they do not express an opinion as
to the laws of any jurisdiction other than the laws of the States of New York
and New Jersey, as applicable, the General Corporate Law of the State of
Delaware and the laws of the United States of America.
(g) The Representative shall have received a written opinion
of Xxxxxxx Xxxx & Xxxxx LLP, special counsel to the Depositor, CITCF, 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) The Offered Certificates have been duly authorized
and, when executed and authenticated by the Trustee as
specified in the Pooling and Servicing Agreement and issued
and delivered and paid for as contemplated by this
Agreement, will be validly issued, outstanding and entitled
to the benefits of the Pooling and Servicing Agreement.
-16-
(ii) The Registration Statement became effective under
the Act as of April 11, 1997 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 Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended.
(iv) The Trust is not, and will not as a result of the
offer and sale of the Offered Certificates as contemplated
in the Prospectus and in this Agreement become, required to
register as an "investment company" under the Investment
Company Act of 1940, as amended.
(v) The statements in the prospectus supplement
relating to the Offered Certificates, dated July16, 1997,
under the caption "Description of the Certificates," insofar
as such statements purport to summarize certain terms of the
Offered Certificates and the Basic Documents, present a fair
summary of such documents.
(vi) To the best of such counsel's knowledge, there are
no contracts or documents of the Depositor 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-3 (No.
333-22283) relating to the Registered Securities as of its
effective date, the Registration Statement and the
Prospectus as of the date of this Agreement, and any
amendment or supplement thereto, as of its date, complied as
to form in all material respects with the requirements of
the Act and the applicable Rules and Regulations. Such
counsel need express no opinion with respect to the
financial statements, the exhibits, annexes and other
financial, statistical, numerical or portfolio data or
information on the economic condition or financial condition
of the portfolio information included in or incorporated by
reference into the registration statement on Form S-3 (No.
333-22283) relating to the Registered 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 Depositor, CITCF, CIT,
CITSF, counsel to CIT, CITCF, the Depositor, 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
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Form S-3 (No. 333-22283) relating to the Registered Securities, the Registration
Statement or Prospectus (except as stated in Sections 6(h)(v) and 6(h)(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 Depositor, CIT, CITSF and CITCF), no facts have come to
their attention that leads such counsel to believe that the registration
statement on Form S-3 (No. 333-22283) relating to the Registered Securities, as
of its effective date, the Registration Statement, as of the date of this
Agreement, or any amendment thereto, as of its date 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 the
economic condition or financial condition of the portfolio included in or
incorporated by reference into, the Registration Statement or Prospectus.
Said counsel may state that they are admitted to practice only
in the State of New York, that they are not admitted to the Bar in any other
State and are not experts in the law of any other State and to the extent that
the foregoing opinions concern the laws of any other State such counsel may rely
upon the opinion of counsel satisfactory to the Underwriters and admitted to
practice in such jurisdiction. Any opinions relied upon by such counsel as
aforesaid shall be addressed to the Underwriters and shall be delivered together
with the opinion of such counsel, which shall state that such counsel believes
that their reliance thereon is justified.
(h) The Representative shall have received an opinion of
Xxxxxxx & Stroock & Xxxxx LLP, counsel for the Underwriters, dated the Closing
Date, with respect to the validity of the Offered Certificates and such other
related matters as the Representative shall require and the Depositor 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.
(i) The Representative shall have received an opinion of
Xxxxx, Xxxxxx & Xxxxxx XXX, counsel to the Trustee, dated the Closing Date, in
form and in substance satisfactory to the Representative and counsel for the
Underwriters, to the effect that:
(i) The Pooling and Servicing Agreement, assuming due
authorization, execution and delivery of such document by all
other parties thereto, constitutes the legal, valid and binding
agreement of the Trustee, 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 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 Trustee, and the application of general
principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or law).
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(ii) The Offered Certificates have been duly executed,
authenticated and delivered by the Trustee in accordance with the
terms of the Pooling & Servicing Agreement.
(j) The Representative shall have received an opinion of
in-house counsel to the Trustee, dated the Closing Date, in form and in
substance satisfactory to the Representative and counsel for the Underwriters,
to the effect that:
(i) The Trustee is a New York banking corporation validly
existing under the laws of the State of New York and has the full
power and authority to enter into, and to take all action
required of it, under the Pooling and Servicing Agreement.
(ii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Trustee.
(iii) To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened
against the Trustee under the Pooling and Servicing Agreement
before any court, administrative agency or other tribunal (A)
asserting the invalidity of the Pooling and Servicing Agreement
or the Offered Certificates, or (B) seeking to prevent the
issuance of the Offered Certificates or consummation of any of
the transactions contemplated by the Pooling and Servicing
Agreement or the Offered Certificates, or (C) that might
materially or adversely affect the performance by the Trustee of
its obligations under, or the validity or enforceability of the
Pooling and Servicing Agreement and the Offered Certificates.
(iv) The execution and delivery of the Pooling and Servicing
Agreement by the Trustee and the performance by the Trustee of
its terms do not conflict with or result in a violation of (a)
any law or regulation of the United States of America or the
State of New York governing the banking or trust powers of the
Trustee, or (b) the articles of association and by-laws of the
Trustee.
(v) No consent, approval or authorization of, filing or
registration with, or notice to, any court or governmental agency
or regulatory authority is required for the Trustee in connection
with the execution and delivery of, performance under, or
compliance with, the Pooling and Servicing Agreement or the
Offered Certificates.
(k) The Class A Certificates shall all have been rated "Aaa"
by Xxxxx'x and "AAA" by S&P, the Class M-1 Certificates shall have been rated
"Aa2" by Xxxxx'x and "AA" by S&P, the Class M-2 Certificates shall have been
rated "A2" by Xxxxx'x and "A-" by S&P and , and the Class B-1 Certificates shall
have been rated "Baa2" by Xxxxx'x and "BBB-" by S&P.
(l) The Representative shall have received copies of each
opinion of counsel delivered to either Rating Agency, together with a letter
addressed to the Representative, dated
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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.
(m) 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 Offered Certificates as herein contemplated and related proceedings or in
order to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Depositor in connection with the issuance and
sale of the Offered Certificates as herein contemplated shall be in form and
substance satisfactory to the Representative and counsel for the Underwriters.
7. Computational Materials.
(a) Not later than 10:30 a.m. New York time, on the business
day before the date on which the Current Report relating to the Offered
Certificates is required to be filed by the Depositor with the Commission
pursuant to Section 5(m) hereof, each Underwriter shall deliver to the Depositor
five complete copies of all materials, if any, provided by such Underwriter to
prospective investors in such Offered Certificates which constitute
"Computational Materials" within the meaning of the no-action letter dated May
20, 1994 issued by the Division of Corporation Finance of the Commission to
Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated,
and Xxxxxx Structured Asset Corporation, the no-action letter dated May 27, 1994
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association and the no-action letter of February 17, 1995 issued by
the Commission to the Public Securities Association (collectively, the
"Xxxxxx/PSA Letters") and the filing of which is a condition of the relief
granted in such letters (such materials being the "Computational Materials").
Each delivery of Computational Materials to the Depositor pursuant to this
paragraph (a) shall be effected by delivering four copies of such materials to
counsel for the Depositor on behalf of the Depositor and one copy of such
materials to the Depositor. The Computational Materials so delivered shall be
accompanied by a letter from KPMG Peat Marwick LLP, addressed to the Depositor
and the Representative, in form and substance reasonably satisfactory to the
Depositor and the Representative, to the effect that KPMG Peat Marwick LLP have
performed certain agreed upon procedures with respect to such Computational
Materials as a result of which they have determined that such Computational
Materials are mathematically correct.
(b) Each Underwriter that so delivers Computational Materials
represents and warrants to and agrees with the Depositor, as of date hereof and
as of the Closing Date, that:
(i) on the date any such Computational Materials with
respect to the Offered Certificates were last furnished to each
prospective investor by such Underwriter and on the date of
delivery thereof to the Depositor pursuant to Section 7(a), any
Underwriter Derived Information (defined below), assuming the
accuracy of the related Depositor Provided Information, included
therein did not and will not include any untrue statement of a
material fact, or, when read in conjunction with the Prospectus
and a prospectus
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supplement relating to the Offered Certificates, did not and will
not omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and
(ii) the Computational Materials contain customary legends
and are in substantially the same form as previously furnished to
the Depositor.
Notwithstanding the foregoing, no Underwriter makes any representation or
warranty as to any information other than the Underwriter Derived Information
provided by such Underwriter. "Underwriter Derived Information" means such
portion, if any, of the information delivered to the Depositor pursuant to
Section 5(m) for filing with the Commission on Form 8-K as: (i) is not contained
in the Prospectus without taking into account information incorporated therein
by reference and (ii) does not constitute Depositor Provided Information.
"Depositor Provided Information" means any computer tape furnished to the
Underwriters by the Depositor concerning the assets comprising the Trust upon
which the mathematical calculations reflected in the Underwriter Derived
Information of any Underwriter are based.
(c) Each Underwriter severally covenants with the Depositor
that if any Underwriter Derived Information required to be provided to
the Depositor pursuant to this Section 7 is determined to contain any
information that is inaccurate or misleading, such Underwriter (whether or not
such Underwriter Derived Information was provided to the Depositor or filed by
the Depositor with the Commission) shall promptly prepare and deliver to the
Depositor and each prospective investor which received such Underwriter Derived
Information corrected Underwriter Derived Information. All information provided
to the Depositor pursuant to this Section 7(c) shall be provided within the time
periods set forth in Section 7(a).
(d) Each Underwriter shall comply with all applicable laws and
regulations in connection with the use of Computational Materials including the
Xxxxxx/PSA Letters.
(e) Each Underwriter shall provide the Company with
representative forms of all Computational Materials prior to their first use, to
the extent such forms have not previously been approved by the Company for use
by such Underwriter.
(f) If an Underwriter does not provide any Computational
Materials to the Company pursuant to Section 7(e) and if no Computational
Materials have been previously approved, such Underwriter shall be deemed to
have represented, as of the Closing Date, that it did not provide any
prospective investors with any information in written or electronic form in
connection with the offering of the Offered Certificates that is required to be
filed with the Commission in accordance with the Xxxxxx/PSA Letters.
(g) In the event of any delay in the delivery by any
Underwriter to the Company of all Computational Materials required to be
delivered in accordance with Section 7(a), the Company shall have the right to
delay the release of the Prospectus to investors or to any Underwriter, to delay
the Closing Date and to take other appropriate actions in each case as
-21-
necessary in order to allow the Company to comply with its agreement set forth
in Section 5(m) to file the Computational Materials by the time specified
therein.
8. Indemnification and Contribution.
(a) CITCF 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) CITCF will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any of such documents (x) in reliance
upon and in conformity with written information furnished to the Depositor or
CITCF 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 following information contained in the prospectus
supplement relating to the Offered Certificates dated the date hereof: (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") or (y) with respect to Underwriter Derived Information included in
any Current Report or any amendment or supplement thereof, except to the extent
that any untrue statement or alleged untrue statement therein results (or is
alleged to have resulted) from an error (a "Depositor Error") in the Depositor
Provided Information other than a Depositor Error which is corrected by
information subsequently furnished by the Depositor in writing or by electronic
transmission to such Underwriter prior to the time such Computational Materials
are furnished to the Depositor pursuant to Section 7(a), (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 Offered
Certificates which are the subject thereof if such person did not receive a copy
of the Prospectus (or, in the event it is amended or supplemented, such
Prospectus as amended or supplemented) at or prior to the confirmation of the
sale of such Offered Certificates to such person if such Prospectus (or, in the
event it is amended or supplemented, such Prospectus as amended or supplemented)
was timely forwarded to each Underwriter as required by this Agreement and the
untrue statement or omission of a material fact contained in such related
preliminary prospectus was corrected in the Prospectus (or, in the event it is
amended or supplemented, such Prospectus as amended or supplemented) and (iii)
CITCF 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
-22-
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
8(c) hereof.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Depositor and CITCF against any losses, claims,
damages or liabilities to which the Depositor or CITCF 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 preliminary prospectus supplement, 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 Depositor or CITCF by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Depositor or CITCF 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 (x) the Underwriters' Information and (y) in any
Underwriter Derived Information (or amendments or supplements thereof) furnished
to the Depositor by such Underwriter pursuant to Section 7 (except that no such
indemnity shall be available for any losses, claims, damages or liabilities (or
actions in respect thereof) resulting from a Depositor Error other than a
Depositor Error which is corrected by information subsequently furnished by the
Depositor in writing or by electronic transmission to such Underwriter prior to
the time such Computational Materials are furnished to the Depositor pursuant to
Section 7(a), 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 Depositor and CITCF, which firm shall be designated in
accordance with Section 8(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, except
as provided in the next following paragraph, the indemnifying party will not be
liable to such indemnified party under this Section
-23-
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.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; or (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however that the indemnifying party 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 (in addition to one local counsel per
jurisdiction) at any time for all such indemnified parties, which firm shall be
designated in writing by the related Underwriter, if the indemnified parties
under this Section 8 consist of one or more Underwriters or any of its or their
controlling persons, or the Depositor, if the indemnified parties under this
Section 8 consist of the Depositor or any of the Depositor's directors, officers
or controlling persons.
(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, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Depositor and CITCF on the one hand and the Underwriters on the other
from the offering of the Offered Certificates or (ii) if the allocation provided
in clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Depositor and CITCF 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
Depositor and CITCF 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 Offered Certificates (before deducting expenses) received by the
Depositor and CITCF 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 Depositor, CITCF or by the Underwriters
and the
-24-
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 Offered Certificates 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 CITCF under this Section shall be in
addition to any liability which the Depositor or CITCF 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 Depositor or CITCF, to each
officer of the Depositor or CITCF who has signed the Registration Statement and
to each person, if any, who controls the Depositor or CITCF within the meaning
of the Act.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Depositor, and CITCF 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 Depositor, CITCF, CITSF or
any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Offered
Certificates. If this Agreement is terminated pursuant to Section 10 or if for
any reason the purchase of the Offered Certificates by the Underwriters is not
consummated, the Depositor, CITCF, 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 Depositor, CITCF, CITSF and the Underwriters
pursuant to Section 8 hereof shall remain in effect. If the purchase of the
Offered Certificates by the Underwriters is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 10
or the occurrence of any event specified in clauses (iii), (iv) or (v) of
Section 6(d) hereof, the Depositor, and CITCF 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 Offered
Certificates.
10. Failure to Purchase the Offered Certificates. If any
Underwriter or Underwriters default in their obligations to purchase the
principal amount of the Class or Classes
-25-
of Offered Certificates opposite such Underwriter's name on Schedule I hereto
and the aggregate principal amount of such Class or Classes of Offered
Certificates that such defaulting Underwriter or Underwriters agreed but failed
to purchase does not exceed 10% of the total principal amount of the Offered
Certificates, the Representative may make arrangements satisfactory to the
Depositor, and CITCF for the purchase of such Offered 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 Offered Certificates that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount of the Class or Classes of Offered Certificates with respect to
such default or defaults exceeds 10% of the total principal amount of the
Offered Certificates and arrangements satisfactory to the Representative, the
Depositor, and CITSF for the purchase of such Offered Certificates by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Depositor, or CITCF, except as provided in Section 9. 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.
11. 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 it at Xxxxxx
Xxxxxxx & Co. Incorporated, 1585 Broadway, New York, New York 10036, Attention:
Xxxxxx X. Xxxxxx (facsimile number (000) 000-0000); with a copy to its General
Counsel office (facsimile number (000) 000-0000), if sent to the Depositor, will
be mailed, delivered or sent by facsimile transmission and confirmed to it at
The CIT Group Securitization Corporation III, 000 XXX Xxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, President (facsimile number (201)
740-5410); 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 CITCF, 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).
12. 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 Depositor or by a trust for which the Depositor was the
depositor 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 Depositor any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any Federal or
state bankruptcy or similar law.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the Underwriters, the Depositor, CIT and CITCF 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.
-26-
14. 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.
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.
16. Counterparts. This Agreement may be executed by each of
the parties hereto in any number of counterparts, and by each of the parties
hereto on separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-27-
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 Depositor, CIT,
CITCF and the several Underwriters in accordance with its terms.
Very truly yours,
THE CIT GROUP SECURITIZATION CORPORATION III
By: /s/ XXXXX XXXXXX
--------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
THE CIT GROUP/CONSUMER FINANCE, INC.
By: /s/ XXXXX XXXXXX
--------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
THE CIT GROUP HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
-28-
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ XXXXXX X. XXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Principal
Acting on behalf of itself
and as the Representative
of the several Underwriters.
-29-
SCHEDULE I
Pass
Original Principal Through
Class Balance $ Price % Price $ Rate %
----- --------- ------- ------- ---------
Xxxxxx Xxxxxxx & Co. Incorporated A-1 22,500,000 99.87450 22,471,762.50 5.93
First Chicago Capital Markets, Inc. A-1 22,500,000 99.87450 22,471,762.50 5.93
Xxxxxx Brothers Inc. A-1 22,500,000 99.87450 22,471,762.50 5.93
Salomon Brothers Inc A-1 22,500,000 99.87450 22,471,762.50 5.93
Xxxxxx Xxxxxxx & Co. Incorporated A-2 9,000,000 99.85000 8,986,500.00 6.17
First Chicago Capital Markets, Inc. A-2 9,000,000 99.85000 8,986,500.00 6.17
Xxxxxx Brothers Inc. A-2 9,000,000 99.85000 8,986,500.00 6.17
Salomon Brothers Inc A-2 9,000,000 99.85000 8,986,500.00 6.17
Xxxxxx Xxxxxxx & Co. Incorporated A-3 20,333,333.33 99.784375 20,289,489.58 6.25
First Chicago Capital Markets, Inc. A-3 20,333,333.33 99.784375 20,289,489.58 6.25
Xxxxxx Brothers Inc. A-3 20,333,333.33 99.784375 20,289,489.58 6.25
Salomon Brothers Inc A-3 20,333,333.33 99.784375 20,289,489.58 6.25
Xxxxxx Xxxxxxx & Co. Incorporated A-4 10,000,000 99.643750 9,964,375.00 6.37
First Chicago Capital Markets, Inc. A-4 10,000,000 99.643750 9,964,375.00 6.37
Xxxxxx Brothers Inc. A-4 10,000,000 99.643750 9,964,375.00 6.37
Salomon Brothers Inc A-4 10,000,000 99.643750 9,964,375.00 6.37
-30-
Pass
Original Principal Through
Class Balance $ Price % Price $ Rate %
----- --------- ------- ------- ---------
Xxxxxx Xxxxxxx & Co. Incorporated A-5 3,750,000 99.53125 3,732,421.88 6.55
First Chicago Capital Markets, Inc. A-5 3,750,000 99.53125 3,732,421.88 6.55
Xxxxxx Brothers Inc. A-5 3,750,000 99.53125 3,732,421.88 6.55
Salomon Brothers Inc A-5 3,750,000 99.53125 3,732,421.88 6.55
Xxxxxx Xxxxxxx & Co. Incorporated A-6 3,750,000 99.506250 3,731,484.38 6.67
First Chicago Capital Markets, Inc. A-6 3,750,000 99.506250 3,731,484.38 6.67
Xxxxxx Brothers Inc. A-6 3,750,000 99.506250 3,731,484.38 6.67
Salomon Brothers Inc A-6 3,750,000 99.506250 3,731,484.38 6.67
Xxxxxx Xxxxxxx & Co. Incorporated A-7 8,250,000 99.456250 8,205,140.63 6.95
First Chicago Capital Markets, Inc. A-7 8,250,000 99.456250 8,205,140.63 6.95
Xxxxxx Brothers Inc. A-7 8,250,000 99.456250 8,205,140.63 6.95
Salomon Brothers Inc A-7 8,250,000 99.456250 8,205,140.63 6.95
-31-
Pass
Original Principal Through
Class Balance $ Price % Price $ Rate %
----- --------- ------- ------- ---------
Xxxxxx Xxxxxxx & Co. Incorporated A-8 7,500,000 99.56875 7,467,656.25 6.65
First Chicago Capital Markets, Inc. A-8 7,500,000 99.56875 7,467,656.25 6.65
Xxxxxx Brothers Inc. A-8 7,500,000 99.56875 7,467,656.25 6.65
Salomon Brothers Inc A-8 7,500,000 99.56875 7,467,656.25 6.65
Xxxxxx Xxxxxxx & Co. Incorporated A-9 22,500,000 99.70000 22,432,500.00 Var
First Chicago Capital Markets, Inc. A-9 22,500,000 99.70000 22,432,500.00 Var
Xxxxxx Brothers Inc. A-9 22,500,000 99.70000 22,432,500.00 Var
Salomon Brothers Inc A-9 22,500,000 99.70000 22,432,500.00 Var
Xxxxxx Xxxxxxx & Co. Incorporated M-1 7,500,000 99.48750 7,461,562.50 6.85
First Chicago Capital Markets, Inc. M-1 7,500,000 99.48750 7,461,562.50 6.85
Xxxxxx Brothers Inc. M-1 7,500,000 99.48750 7,461,562.50 6.85
Salomon Brothers Inc M-1 7,500,000 99.48750 7,461,562.50 6.85
-32-
Pass
Original Principal Through
Class Balance $ Price % Price $ Rate %
----- --------- ------- ------- ---------
Xxxxxx Xxxxxxx & Co. Incorporated M-2 8,125,000 99.49875 8,084,273.44 7.10
First Chicago Capital Markets, Inc. M-2 8,125,000 99.49875 8,084,273.44 7.10
Xxxxxx Brothers Inc. M-2 8,125,000 99.49875 8,084,273.44 7.10
Salomon Brothers Inc M-2 8,125,000 99.49875 8,084,273.44 7.10
Xxxxxx Xxxxxxx & Co. Incorporated B-1 5,625,000 99.38750 5,590,546.88 7.45
First Chicago Capital Markets, Inc. B-1 5,625,000 99.38750 5,590,546.88 7.45
Xxxxxx Brothers Inc. B-1 5,625,000 99.38750 5,590,546.88 7.45
Salomon Brothers Inc B-1 5,625,000 99.38750 5,590,546.88 7.45
Total Price to Public: $494,366,874.90
Total Price to Depositor: $492,881,675.90
Underwriting Discounts
and Commissions: $ 1,485,195.00
-33-
SCHEDULE II
Locations of Chief Executive Offices and Principal Places of Business
The CIT Group Securitization
Corporation III 000 XXX Xxxxx
Xxxxxxxxxx, XX 00000-0000
The CIT Group/ Consumer Finance, Inc. 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, 000 XXX Xxxxx
Inc. (NY) Livingston, NJ 07039-0491
