Exhibit 1.1
FORM OF UNDERWRITING AGREEMENT
HOME EQUITY LOAN ASSET BACKED CERTIFICATES, SERIES 20__-__
THE CIT GROUP SECURITIZATION CORPORATION III
(DEPOSITOR)
_______________, 20__
[UNDERWRITER],
as Representative of the
Several Underwriters (the "Representative"),
[Address]
Ladies and Gentlemen:
1. Introductory. The CIT Group Securitization Corporation III, a Delaware
corporation (the "Depositor"), a wholly-owned limited-purpose finance subsidiary
of CIT Group Inc., a Delaware corporation ("CIT"), has previously filed as
registrant thereunder (the "Registrant") a registration statement with the
Securities and Exchange Commission (the "Commission") relating to the issuance
and sale from time to time of up to U.S.$_____________ of home equity loan asset
backed certificates. Each of such certificates 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
200__-__ listed on Schedule I hereto (the "Offered Certificates," and, together
with the [Class X-IO and Class R Certificates], the "Certificates") evidencing
interests in a pool (the "Mortgage Loan Pool") of certain home equity loans (the
"Mortgage Loans"). The Certificates will be issued under a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") to be dated as of
_______________, 20__ among the Depositor, CFHE Funding Company LLC, a Delaware
limited liability company, as seller (the "CIT Conduit Seller"), The CIT
Group/Consumer Finance, Inc. ("CITCF" or "Master Servicer") a Delaware
corporation 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
(as "Seller") and the CIT Conduit Seller to the Depositor and, in turn, by the
Depositor to the Trust pursuant to the Pooling and Servicing Agreement. The
"Seller" and the "CIT Conduit Seller", together, shall be referred to herein as
the "Sellers".
Certain of the Mortgage Loans and other property sold by the CIT Conduit
Seller to the Depositor will be purchased by the CIT Conduit Seller from CITCF
pursuant to a Mortgage Loan Sale and Contribution Agreement dated as of
_______________, 20__ (the "Conduit Purchase Agreement"), and certain of the
Mortgage Loans and other property sold by CITCF to the CIT Conduit Seller have
been previously purchased by CITCF from (i) The CIT Group/Consumer Finance, Inc.
(NY) ("CITCF-NY") pursuant to a Mortgage Loan Sale Agreement dated as of
_______________, 20__ (the "CITCF-NY Conduit Sale Agreement")
between CITCF-NY and CITCF and (ii) The CIT Group/Consumer Finance, Inc. (TN)
("CITCF-TN") pursuant to a Mortgage Loan Sale Agreement dated as of
_______________, 20__ (the "CITCF-TN Conduit Sale Agreement") between CITCF-TN
and CITCF. Certain of the Mortgage Loans to be conveyed by the Seller to the
Depositor will be purchased by the Seller from (i) CITCF-NY pursuant to a
Purchase Agreement dated as of _______________, 20__ (the "CITCF-NY Sale
Agreement") between the Seller and CITCFNY and (ii) CITCF-TN pursuant to a
Purchase Agreement dated as of _______________, 20__ (the "CITCF-TN Sale
Agreement") between the Seller and CITCF-TN. The "Depositor", the "CIT Conduit
Seller", "CITCF", "CITCF-NY" and "CITCF-TN" shall be collectively referred to
herein as the "CIT Entities."
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 and CITCF. Each of the
Depositor and CITCF, jointly and severally represents and warrants to, and
agrees with, the Underwriters, as of the date hereof and as of the date of the
purchase and sale of the Offered Certificates pursuant to Section 3 hereof (the
"Closing Date") that:
(a) A registration statement on Form S-3 (No. ___-_____ ), 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."
(b) On the effective date of the Registration Statement, 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 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, 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
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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 Marketing Materials (as
defined in Section 7 below) or the Prospectus is the Underwriters' Information
(as defined in Section 8(a) below).
(c) 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 CIT Entities has been duly organized and is validly
existing as a corporation or limited liability company (as applicable) in good
standing under the laws of its applicable State of formation. Each of the CIT
Entities has the corporate power and authority to own, lease and operate its
respective properties and conduct its respective businesses as described or
incorporated in the Prospectus (with respect to the Depositor and CITCF only)
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 CIT
Entities is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such qualification
and in which the failure so to qualify would have a material adverse effect on
its respective business, properties, assets, or condition (financial or other)
or on its ability to perform its obligations under any of the Basic Documents to
which it is a party. "Basic Documents" means this Agreement, the Pooling and
Servicing Agreement, the Conduit Purchase Agreement, the CITCF-NY Conduit Sale
Agreement, the CITCF-TN Conduit Sale Agreement, the CITCF-NY Sale Agreement and
the CITCF-TN Sale 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, 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 could
reasonably be expected to result in any material adverse change in the financial
condition, earnings, affairs or business of the Depositor or which could
reasonably be expected to 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 the CIT Entities other than the Depositor is, with
respect to CITCF, CITCF-NY and CITCF-TN, in violation of its respective
certificate of incorporation or by-laws and, with respect to the CIT Conduit
Seller, its certificate of formation or operating agreement, or in default in
the performance or observance of any material obligation, agreement,
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covenant or condition contained in any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which any of such CIT
Entities is a party or by which each or any of such CIT Entities' properties may
be bound, which default could reasonably be expected to result in any material
adverse change in the financial condition, earnings, affairs or business of any
of such CIT Entities or which could reasonably be expected to materially and
adversely affect the properties or assets of any of such CIT Entities or the
ability of any of such CIT Entities 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 date hereof
of this Agreement and on the Closing Date of the Basic Documents to which it is
a party, and the performance of its obligations hereunder or 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 date hereof, with
respect to this Agreement, or on and as of the Closing Date, with respect to the
Basic Documents; and neither the issuance and sale of the Offered Certificates
to the Underwriters, nor the execution and delivery by the Depositor of any of
the Basic Documents to which it is a party, nor the consummation by the
Depositor of the transactions herein or 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 CITCF on the date hereof of this
Agreement and by each CIT Entity on and as of the Closing Date of any of the
Basic Documents to which it is a party, and the performance of each of their
respective obligations hereunder or thereunder, will be within the corporate
power of each of the CIT Entities and duly authorized by all necessary corporate
action on the part of each of the CIT Entities on and as of the date hereof,
with respect to this Agreement, or on and as of the Closing Date, with respect
to the Basic Documents; and neither the issuance and sale of the Offered
Certificates to the Underwriters, nor the execution and delivery by any of the
CIT Entities of this Agreement or any of the Basic Documents to which any of the
CIT Entities is a party, nor the consummation by any of the CIT Entities of the
transactions herein or therein contemplated, nor compliance by any of the CIT
Entities 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 any of the CIT Entities or their respective properties or, with
respect to CITCF, CITCF-NY and CITCF-TN, certificate of incorporation or by-laws
and, with respect to the CIT Conduit Seller, its certificate of formation or
operating agreement, or any of the provisions of any material indenture,
mortgage, contract or other instrument to which any of the CIT Entities is a
party or by which any of the CIT Entities 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.
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(j) 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.
(k) Each of the Basic Documents, 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 CIT Entities which is a party thereto, and will
constitute a legal, valid and binding instrument enforceable against each such
CIT Entity which is a party thereto 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 CIT Entities 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) Each of the CIT Entities possesses all material licenses,
certificates, authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the businesses now
operated by them and as described in the Prospectus, other than such licenses,
certificates, authorities or permits the failure of which to possess would not
have a material adverse effect on the interests of Certificateholders under the
Pooling and Servicing Agreement and none of the CIT Entities has 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 CIT Entities 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 any of the CIT Entities.
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(p) As of the Closing Date, each of the Mortgage Loans will meet the
eligibility criteria described in the Prospectus.
(q) The "location" of each of the CIT Entities for the purposes of
Section 9-307(e) of the Uniform Commercial Code as in effect in the State of New
York, is listed opposite its name on Schedule II hereto.
(r) Neither any of the CIT Entities nor the Trust created by the
Pooling and Servicing Agreement is and, after giving effect to the offering and
sale of the Offered Certificates and other transactions contemplated hereby,
neither any of the CIT Entities nor the Trust will be, an "investment company"
or an entity "controlled" by an "investment company", as such terms are defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(s) As of the Closing Date, each of the respective representations
and warranties of the CIT Entities 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.
(t) There are no legal or governmental proceedings to which any of
the CIT Entities is a party or of which any property of any of the CIT Entities
is the subject (i) asserting the invalidity of this Agreement, the Offered
Certificates or any of the Basic Documents, (ii) seeking to prevent the issuance
of the Offered Certificates or the consummation of any of the transactions
contemplated by this Agreement or any Basic Document, (iii) which will
materially and adversely affect the performance by CITCF or any of the CIT
Entities, of their respective obligations under, or the validity or
enforceability of, this Agreement, the Offered Certificates or the Basic
Documents, as applicable, (iv) seeking to affect adversely the federal income
tax attributes of the Offered Certificates described in the Prospectus or (v)
which will, individually or in the aggregate, have a material adverse effect on
any of the CIT Entities; and, to the best of any of the CIT Entities' knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(u) Since the respective dates as of which information is given in
the Prospectus, there has not been any change, or any development involving a
prospective change, in or affecting any of the CIT Entities (other than as
contemplated in the Prospectus) which would be expected to have a material
adverse effect on the ability of such person to consummate the transactions
contemplated by, or to perform its respective obligations under, this Agreement
or any of the Basic Documents to which such CIT Entity is a party.
All representations, warranties and agreements made herein shall be deemed
made as of the date hereof and as of the Closing Date; provided, however, that
to the extent any representation or warranty relates to a specific date, such
representation and warranty shall be deemed to continue to relate to such date.
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
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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.
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 _______________,
20__ 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 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 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
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;
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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 its 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 13, 14 or 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), any 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. The
Depositor will pay the expenses of printing and distributing to the Underwriters
all such documents.
(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), 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 Ratings Services, 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
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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, each of the CIT Entities 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 nor CITCF, as Master 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 any of the ratings provided with
respect to the Offered Certificates by either Rating Agency is conditional upon
the furnishing of documents or the taking of any other actions by the CIT
Entities, any of the CIT Entities 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 are 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
_______________, described in Section 7(a) relating to any Collateral Term
Sheets, Structural Term Sheets or Computational Materials (each as defined in
Section 7 below), as the case may be, the Depositor will cause any such
Collateral Term Sheets, Structural Term Sheets or Computational Materials with
respect to the Offered Certificates which are delivered to the
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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 two days
following first use thereof, in the case of any Collateral Terms Sheets and not
later than the date on which the prospectus supplement relating to the Offered
Certificates is available for distribution to investors in the case of any
Structural Term Sheets or Computational Materials.
6. 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 CIT Entities contained or incorporated herein, to the accuracy of the
statements of officers of the CIT Entities made pursuant to the provisions
hereof, to the performance by the CIT Entities of their respective 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 _______________ 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
_______________ 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.
(c) The Representative shall have received an officer's certificate,
dated the Closing Date, executed by 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) the CIT Conduit Seller
in which such officers shall state that, to the best of each such officer's
knowledge after reasonable investigation, the representations and warranties of
the CIT Conduit Seller in the Basic Documents to which it is a party are true
and correct and that the CIT Conduit Seller has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder or
thereunder at or prior to the Closing Date; (iii) CITCF in which such officers
shall state that, to the best of each such officer's knowledge after reasonable
investigation, the
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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;
(iv) CITCF-NY 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-NY in the Basic Documents to which it is a party are true
and correct and that CITCF-NY 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 (v) CITCF-TN 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-TN in the Basic
Documents to which it is a party are true and correct and that CITCF-TN has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder or thereunder at or prior to the Closing Date.
(d) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Trust, the Depositor, or any of the CIT Entities 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 any of the CIT Entities, as applicable, 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 change in U.S.
or international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of the
Representative, be likely to prejudice materially the success of the proposed
issue, sale or distribution of the Offered Certificates, whether in the primary
market or in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally on the New
York Stock Exchange or Nasdaq National Market, or any setting of minimum prices
for trading on such exchange or any suspension of trading of any securities of
any CIT Entity on any exchange or in the over-the-counter market; (v) any
banking moratorium declared by Federal, New Jersey or New York authorities; (vi)
any major disruption of settlements of securities or clearance services in the
United States; or (vii) 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 on the terms
and in the manner contemplated by this Agreement and in the Prospectus.
(e) The Representative shall have received an opinion, dated the
Closing Date, in substantially the form set forth below, of Xxxxxxx Xxxx & Xxxxx
LLP, special counsel for the CIT Entities, to the effect that:
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(i) Each of the CIT Entities has been duly incorporated, or
has been duly formed, and each of them is validly existing as a
corporation or a limited liability company (as applicable) in good
standing under the laws of the applicable State of formation.
(ii) Each of the CIT Entities has the corporate power to own
its assets and to transact the business in which it is currently engaged
and to perform its obligations under each of the Basic Documents to which
it is a party.
(iii) Each of the Basic Documents to which any of the CIT
Entities is a party has been duly authorized, executed and delivered by
such CIT Entity, and each such Basic Document constitutes a valid and
binding obligation of such CIT Entity, enforceable against such CIT Entity
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.
(iv) The execution and delivery by each of the CIT Entities of
the Basic Documents to which it is a party and the performance of their
respective obligations thereunder will not result in any violation of the
provisions of the certificate of incorporation, certificate of formation,
articles of association, by-laws, operating agreements or other
constituent documents of the CIT Entities 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 CIT Entities.
(v) The Depositor has duly authorized and executed the written
order to the Trustee to execute and deliver the Offered Certificates.
(vi) 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 Court of the State of New York (or federal court located in
New York or any governmental authority or agency of the State of New York)
is required for the consummation by any of the CIT Entities of the
transactions contemplated by the Basic Documents, except for such other
filings, registrations, notices, consents, approvals, authorizations,
orders or permits as have been obtained.
(vii) The CITCF-NY Sale Agreement is sufficient in form and
substance to convey to CITCF all of CITCF-NY's rights, 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 rights, title and interest in
and to the related Mortgage Loans will have been conveyed to CITCF, except
as such interest in the related homes securing the Mortgage Loans (the
-12-
"related Mortgaged Homes") may be limited by the absence of a duly
recorded mortgage assignment.
(viii) The CITCF-TN Sale Agreement is sufficient in form and
substance to convey to CITCF all of CITCF-TN's rights, title and interest
in and to the related Mortgage Loans. When the CITCF-TN Sale Agreement has
been duly executed and delivered by all parties thereto, and the purchase
price has been paid to CITCF-TN by CITCF in the manner specified in the
CITCF-TN Sale Agreement, all of CITCF-TN's rights, 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.
(ix) The Pooling and Servicing Agreement is sufficient in form
and substance to convey to the Depositor all of the Sellers' rights, title
and interest in and to the Mortgage Loans. When the Pooling and Servicing
Agreement has been duly executed and delivered by all parties thereto, and
the purchase price has been paid to the Sellers by the Depositor in the
manner specified in the Pooling and Servicing Agreement, all of the
Sellers' rights, 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.
(x) The Pooling and Servicing Agreement is sufficient in form
and substance to convey to the Trustee all of the Depositor's rights,
title and interest in and to the 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 rights, 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, CITCF-TN, CITCF or the CIT Conduit Seller, 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,
CITCF-TN, CITCF or the CIT Conduit Seller, as the case may be.
(xi) 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.
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(xii) 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.
(xiii) The Registration Statement initially became effective
under the Act as of _______________, 20__, 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.
(xiv) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended.
(xv) 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.
(xvi) The statements in the prospectus supplement relating to
the Offered Certificates, dated _______________, 20__, 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.
(xvii) 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.
(xviii) The statements in the Base Prospectus under the
headings "Certain Federal Income Tax Consequences" and "ERISA
Considerations," as modified, superseded or supplemented in the prospectus
supplement relating to the Offered Certificates under the headings
"Certain Federal Income Tax Considerations" and "ERISA Considerations" to
the extent that they constitute matters of law or legal conclusions with
respect thereto, are correct in all material respects.
(xix) The Trust as described in the Prospectus Supplement and
the Pooling and Servicing Agreement will qualify as a REMIC within the
meaning of Section 860D of the Code, assuming (i) an election is made to
treat the Trust as a REMTC, (ii) compliance with the Pooling and Servicing
Agreement and (iii) compliance with changes in the law, including any
amendments to the Code or applicable Treasury regulations thereunder.
(xx) The registration statement on Form S-3 (No. ___-_____ )
relating to the Registered Securities as of the effective date of the
Post-Effective Amendment thereto, the Registration Statement and the
Prospectus as of the date of this
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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. ___-_____ ) 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 CIT Entities, internal counsel to the CIT
Entities, and officers and representatives of the Underwriters, at which
conferences certain of the contents of the Registration Statement and the
Prospectus were discussed and, although such counsel is not passing upon and
does not assume any responsibility whatsoever for, the factual accuracy,
completeness or fairness of the statements contained in the registration
statement on Form S-3 (No. ___-_____ ) relating to the Registered Securities,
the Registration Statement or Prospectus (except as stated in Sections 6(e)(xvi)
and 6(e)(xviii) above), on the basis of the foregoing, no facts have come to
their attention that leads such counsel to believe that the registration
statement on Form S-3 (No. ___-_____ ) 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.
(f) The Representative shall have received from Xxxxxxx Xxxx & Xxxxx
LLP such opinion or opinions, dated the Closing Date, in form and substance
satisfactory to the Underwriters and the Underwriters' counsel, in respect of
"true sale" in connection with the transactions contemplated by the Basic
Documents.
(g) The Representative shall have received an opinion, dated the
Closing Date, of _______________, to the effect that:
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(i) Each of the CIT Entities has 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;
(ii) Each of the CIT Entities is 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 is likely to have a material adverse effect on the business,
properties, assets, or condition (financial or other) of such CIT Entity
or on its ability to perform its respective obligations under the Basic
Documents to which it is a party;
(iii) The execution and delivery by any of the CIT Entities of
each of the Basic Documents to which it is a party and the performance of
its respective obligations thereunder are within the corporate power of
such CIT Entity, the signing of the Registration Statement by the
Depositor is within the corporate power of the Depositor, and each of the
Basic Documents and the Registration Statement has been duly authorized by
all necessary corporate action on the part of such applicable CIT Entity;
and neither the issue and sale of the Offered Certificates, nor the
consummation of the transactions contemplated by such 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 such CIT Entity pursuant to any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument, if any, to which such CIT Entity is a party or by which either
may be bound or to which the property or assets of such CIT Entity are
subject (but only as to contracts, indentures, mortgages, loan agreements,
notes, leases and other such instruments which have been identified by
such CIT Entity to such counsel);
(iv) 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 or federal court or governmental authority or
agency is required for the consummation by any of the CIT Entities of the
transactions contemplated by the Basic Documents, 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; and
(v) There are no legal or governmental proceedings pending to
which any the CIT Entities is a party or of which any property of the CIT
Entities 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 Prospectus 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 could materially and adversely affect any
of the CIT Entities' obligations under any of the Basic Documents or (4)
seeking to affect adversely the federal or state income tax attributes of
the Offered Certificates.
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Said counsel may state that he is admitted to practice only in
the State of New Jersey, that he is not admitted to the Bar in any other
State, that he does not express an opinion as to the laws of any
jurisdiction other than the laws of the State of New Jersey, the General
Corporate Law of the State of Delaware and the laws of the United States
of America.
(h) The Representative shall have received an opinion of
_______________, 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
_______________, 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).
(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 _______________ validly existing under
the laws of _______________ 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
-17-
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 _______________ 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 Representative shall have received letters, each dated the
Closing Date, from each of Xxxxx'x Investors Service, Inc. and Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. (together, the
"Rating Agencies") confirming the ratings set forth in the Prospectus
Supplement, which ratings shall not have been withdrawn.
(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 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) The Representative shall have received a reliance letter, dated
the Closing Date, from Xxxxxxx Xxxx & Xxxxx LLP, counsel to the CIT Entities
with respect to the legal opinions delivered in connection with the transactions
contemplated by the Conduit Purchase Agreement, the CITCF-NY Conduit Sale
Agreement and the CITCF-TN Conduit Sale Agreement.
(n) Each of the representations and warranties of any of the CIT
Entities contained in any of the Basic Documents shall be true and correct as of
the date hereof and as of the Closing Date.
(o) 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.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, this
Agreement and all the
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obligations hereunder may be canceled by the Underwriters at, or at any time
prior to, the Closing Date. Notice of such cancellation shall be given to the
Depositor and CITCF in writing, or by telephone or facsimile transmission
confirmed in writing.
7. Marketing 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 in electronic form
or by such other means reasonably requested by the Depositor, complete copies of
all materials, if any, provided by such Underwriter to prospective investors in
such Offered Certificates which constitute "Collateral Term Sheets" and
"Structural Term Sheets" within the respective meanings assigned to them in the
February 13, 1995 letter (the "PSA Letter") of Cleary, Gottlieb, Xxxxx &
Xxxxxxxx on behalf of the Public Securities Association (which letter, and the
SEC staff's response thereto, were publicly available February 17, 1995), or
"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, Peabody 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 (each of such "Collateral Term Sheets," "Structural Term
Sheets" and "Computational Materials" being referred to as "Marketing
Materials"). Each delivery of Marketing Materials to the Depositor pursuant to
this paragraph (a) shall be effected by delivering a copy of such materials to
counsel for the Depositor on behalf of the Depositor and one copy of such
materials to the Depositor. The Marketing Materials so delivered shall be
accompanied by a letter from _______________, addressed to the Depositor and the
Representative, in form and substance reasonably satisfactory to the Depositor
and the Representative, to the effect that _______________ have performed
certain agreed upon procedures with respect to such Marketing Materials as a
result of which they have determined that such Marketing Materials are
mathematically correct.
(b) Each Underwriter that so delivers Marketing 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 Marketing 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, was and will be accurate in all material
respects; and
(ii) the Marketing Materials contain customary legends and are
in substantially the same form as previously furnished to the Depositor.
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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, (ii) does not constitute Depositor Provided Information and (iii)
is of the type of information defined as Collateral Term Sheets, Structural Term
Sheets or Computational Materials. "Depositor Provided Information" means any
computer tape furnished to the Underwriters by any of the CIT Entities that is
relied on or is reasonably anticipated by the parties hereto to be relied on by
the Underwriters in the course of the Underwriters' preparation of its
Underwriter Derived Information.
(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 Marketing Materials including the
Xxxxxx/PSA Letters.
(e) Each Underwriter shall provide the Registrant with
representative forms of all Marketing Materials prior to their first use, to the
extent such forms have not previously been approved by the Registrant for use by
such Underwriter.
(f) If an Underwriter does not provide any Marketing Materials to
the Registrant pursuant to Section 7(e) and if no Marketing 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 Registrant of all Marketing Materials required to be delivered in accordance
with Section 7(a), the Registrant 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 necessary in order to allow
the Registrant to comply with its agreement set forth in Section 5(m) to file
the Marketing 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
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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 (including any filings on a Current
Report incorporated by reference therein), 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 or on
behalf of 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: the underwriting discounts and commissions set forth on the cover page,
the concession and reallowance figures appearing within the third paragraph
under the caption "UNDERWRITING" and the information contained in the fourth
paragraph (other than the last sentence thereof), the fifth paragraph, the
eighth paragraph and the ninth paragraph 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 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
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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 or on
behalf of 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 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 (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
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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 (1) 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 parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. CITCF, the
Depositor and the Underwriters agree that it would not be just and equitable if
contributions made pursuant to this subsection (d) were to be determined by pro
rata allocation that does not take into account the equitable considerations
referred to herein. 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 underwriting discount set forth on the
cover page of the
-23-
prospectus supplement relating to the Offered Certificates paid to such
Underwriter. 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 any
of the CIT Entities 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, any of the CIT Entities or any of their
respective Representative, 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 and CITCF, 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 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 because of the
termination of this Agreement pursuant to Section 10 or the occurrence of any
event specified in clauses (iii), through (vii) 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 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 CITCF for the purchase of
-24-
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 [UNDERWRITER], [address],
Attention: _______________ (facsimile number _______________); with a copy to
its General Counsel office (facsimile number _______________), 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, 0 XXX Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: _______________, President (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/Consumer Finance,
Inc., 0 XXX Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: 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 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.
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 internal laws of the State of New York (including, without
limitation, Sections 5-1401 and 5-1402 of the General Obligations Law of the
State of New York) without regard to the conflict of laws principles thereof.
Each of the parties hereto hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
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.
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If the foregoing is in accordance with the Representative's understanding
of our agreement, kindly sign and return to us a counterpart hereof, whereupon
it will become a binding agreement among the Depositor, CITCF and the several
Underwriters in accordance with its terms.
Very truly yours,
THE CIT GROUP SECURITIZATION
CORPORATION III
By:
------------------------------------
Name:
Title: Vice President
THE CIT GROUP/CONSUMER
FINANCE, INC.
By:
------------------------------------
Name:
Title: Vice President
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written:
[UNDERWRITER]
By:
-----------------------------------
Name:
Title: Director
Acting on behalf of itself and as the
Representative of the several
Underwriters.
