MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE
PASS-THROUGH CERTIFICATES, SERIES 1995-2
THE CIT GROUP SECURITIZATION CORPORATION II
(SELLER)
November 14, 1995
UNDERWRITING AGREEMENT
CS FIRST BOSTON CORPORATION,
as Representative of the
Several Underwriters (the "Representative"),
Park Avenue Plaza
New York, New York 10055
Dear Sirs:
1. Introductory. The CIT Group Securitization Corporation II, a Delaware
corporation (the "Seller") and a wholly-owned limited-purpose finance subsidiary
of The CIT Group Holdings, Inc., a Delaware corporation ("CIT" or the
"Guarantor"), 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 $500,000,000 of manufactured
housing contract pass-through 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
Seller has authorized the issuance and sale of $36,263,000 principal amount of
Class A-1 Certificates, $35,456,000 principal amount of Class A-2 Certificates,
$24,434,000 principal amount of Class A-3 Certificates, $65,200,000 principal
amount of Class A-4 Certificates, $15,936,000 principal amount of Class A-5
Certificates and $21,912,194 principal amount of the Class B Manufactured
Housing Contract Senior/Subordinate Pass-Through Certificates, Series 1995-2
(collectively, the "Certificates") evidencing interests in certain manufactured
housing installment sales contracts and installment loan agreements (the
"Contracts"). The Certificates will be issued under a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") to be dated as of November 1,
1995 among the Seller, The CIT Group/Sales Financing, Inc. ( "CITSF" or the
"Servicer") and Xxxxxx Trust & Savings Bank, as trustee (the "Trustee"). The
Certificates will evidence specified interests in a pool of Contracts (the
"Contract Pool") and certain other property held in trust with respect to such
Certificates. In connection with
the offering of the Certificates, CIT is entering into a Limited Guarantee (the
"Limited Guarantee," and together with the Certificates, the "Offered
Securities") guaranteeing certain payments in respect of the Class B
Certificates. The Contracts and certain other assets of a Trust (the "Trust")
will be sold by CITSF to the Seller pursuant to a Purchase Agreement (the
"Purchase Agreement") to be dated as of November 1, 1995 between CITSF and the
Seller and, in turn, by the Seller to the Trust pursuant to the Pooling and
Servicing Agreement. Certain of the Contracts and other property sold by CITSF
to the Seller will first be purchased by CITSF from The CIT Group/Consumer
Finance, Inc. (NY) ("CITCF-NY") pursuant to a Purchase Agreement to be dated as
of November 1, 1995 (the "CITCF-NY Sale Agreement") between CITCF-NY and CITSF.
The firm or firms listed on the attached Schedule I hereto which agreed to
purchase the Certificates are hereinafter referred to as the Underwriters (the
"Underwriters") of such 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 Seller, the Guarantor and CITSF.
Each of the Seller, the Guarantor and CITSF, jointly and severally, represents
and warrants to, and agrees with, the Underwriters, as of the date hereof and as
of the date of the purchase and sale of the Certificates pursuant to Section 3
hereof (the "Closing Date") that:
(a) A registration statement on Form S-3 and Form S-11 (No. 33-85224),
including a prospectus, relating to the Registered Securities has been filed
with the Securities and Exchange Commission ("Commission") and 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 Securities 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 ("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 Securities used prior to the
date of this Agreement that is subject to completion.
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(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
("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 will 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, except that the foregoing does not apply to
statements in or omissions from any of such documents based upon written
information furnished to the Seller by any Underwriter through the
Representative specifically for use therein. The Seller, CITSF and the Guarantor
hereby acknowledge that any information furnished by any of the Underwriters
specifically for use in the Registration Statement, any preliminary prospectus
or the Prospectus is the Underwriters' Information (as defined in Section 7(a)).
(c) CIT 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 Seller, the Guarantor 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 Seller, the Guarantor, CITSF and CITCF-NY have with 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 Seller, the
Guarantor, 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
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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 Purchase Agreement, the
CITCF-NY Sale Agreement, the Limited Guarantee and the Certificate Depository
Agreement.
(f) The Seller is not in violation of its certificate of incorporation or
by-laws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it or its properties may be bound, which default might
result in any material adverse change in the financial condition, earnings,
affairs or business of the Seller or 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) Neither the Guarantor, CITSF nor CITCF-NY is in violation of its
certificate of incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which it is a party or by which it or its
respective properties may be bound, which default might result in any material
adverse change in the financial condition, earnings, affairs or business of
either the Guarantor or CITSF or which might materially and adversely affect the
properties or assets thereof or their ability to perform its obligations under
any of the Basic Documents to which it is a party.
(h) The execution and delivery by the Seller on the Closing Date of the
Basic Documents to which it is a party and the performance of its obligations
thereunder will be within the corporate power of the Seller and duly authorized
by all necessary corporate action on the part of the Seller on and as of the
Closing Date; and neither the issuance and sale of the Certificates to the
Underwriters, nor the execution and delivery by the Seller of the Basic
Documents to which it is a party, nor the consummation by the Seller of the
transactions therein contemplated, nor compliance by the Seller with the
provisions hereof or thereof, will materially conflict with or result in a
material breach of, or constitute a material default under, any of the
provisions of any law, governmental rule, regulation, judgment, decree or order
binding on the Seller or its properties or the certificate of incorporation or
by-laws of the Seller or any of the provisions of any indenture, mortgage,
contract or other instrument to which the Seller is a party or by which the
Seller is bound or result in the creation or
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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 the Guarantor, 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 the Guarantor, CITSF and CITCF-NY and duly authorized
by all necessary corporate action on the part of each of the Guarantor, CITSF
and CITCF-NY on and as of the Closing Date; and neither the issuance and sale of
the Certificates to the Underwriters, nor the execution and delivery by the
Guarantor, CITSF and CITCF-NY of any of the Basic Documents to which it is a
party, nor the consummation by the Guarantor, CITSF and CITCF-NY of the
transactions therein contemplated, nor compliance by the Guarantor, 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 the Guarantor, CITSF or CITCF-NY or their respective properties
or the certificate of incorporation or by-laws of the Guarantor, CITSF or
CITCF-NY, or any of the provisions of any material indenture, mortgage, contract
or other instrument to which the Guarantor, CITSF or CITCF-NY is a party or by
which the Guarantor, 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) This Agreement has been duly authorized, executed and delivered by each
of the Seller, the Guarantor and CITSF, and it constitutes a legal, valid and
binding instrument enforceable against each of the Seller, the Guarantor and
CITSF in accordance with its terms, subject (i) to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally, (ii) as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and (iii) as to enforceability with respect to rights of indemnity
thereunder, to limitations of public policy under applicable securities laws.
(k) The Pooling and Servicing 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 Seller and CITSF, and each
will constitute a legal, valid and binding instrument enforceable against each
of the Seller and CITSF in accordance with its terms, subject (i) to applicable
bankruptcy,
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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 Limited Guarantee when executed and delivered on the Closing Date
will be duly authorized, executed and delivered by the Guarantor and it
constitutes a legal, valid and binding instrument enforceable against the
Guarantor 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). The Limited Guarantee is a senior, general,
unsecured obligation of CIT that ranks pari passu with all other senior,
general, unsecured obligations of CIT.
(m) The Certificates, when duly and validly authorized by the Registrants,
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.
(n) No filing or registration with, notice to or consent, approval,
authorization or order of any court or governmental authority or agency is
required for the consummation by any of the Seller, the Guarantor, 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.
(o) The Seller, the Guarantor, 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 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 or the Limited
Guarantee, and neither the Seller, the Guarantor, 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 Seller, the Guarantor, CITSF or
CITCF-NY or their ability to perform
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their respective obligations under any of the Basic Documents to which it is a
party.
(p) As of the Closing Date, the Contracts and related property will have
been duly and validly assigned to the Trustee in accordance with the Basic
Documents; and when such assignment is effected, a duly and validly perfected
transfer of all such Initial Contracts subject to no prior lien, mortgage,
security interest, pledge, charge or other encumbrance created by the Seller,
the Guarantor, CITSF or CITCF-NY will have occurred.
(q) As of the Closing Date, each of the Contracts will meet the eligibility
criteria described in the Prospectus.
(r) The financial statements of CIT included or incorporated in the
Registration Statement and Prospectus present fairly the financial position of
CIT and its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial statements
have been prepared in conformity with generally accepted accounting principles
in the United States applied on a consistent basis; and any schedules included
in the Registration Statement present fairly the information required to be
stated therein.
(s) The chief executive office of each of the Seller, CITSF and CITCF-NY is
listed opposite its name on Schedule II hereto, which office is the place where
it is "located" for the purposes of Section 9-103(3)(d) of the Uniform
Commercial Code as in effect in the State of New York, and the offices of each
of the Seller, CITSF and CITCF-NY where it keeps its respective records
concerning the Contracts are also listed in said Schedule opposite its name and
there have been no other such locations during the four months preceding the
Closing Date.
(t) 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 CIT and its subsidiaries taken as a
whole.
(u) Neither the Seller, the Guarantor nor CITSF 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").
(v) In connection with the offering of the Offered Securities in the State
of Florida, the Seller hereby certifies
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that they have complied with all provisions of Section 5.17.075 of the Florida
Securities and Investor Protection Act.
(w) As of the Closing Date, each of the respective representations and
warranties of the Seller, 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.
(w) The Seller has filed the preliminary prospectus supplement relating to
the Certificates pursuant to and in accordance with Rule 424(b).
3. Purchase, Sale and Delivery of Certificates. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Seller agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Seller, the aggregate principal amounts of the Class of 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 Certificates
opposite the name of such Underwriter on Schedule I hereto with respect to such
Class of Certificates plus accrued interest at the Remittance Rate for such
Class of Certificates calculated from (and including) November 21, 1995, to (but
excluding) the Closing Date.
Against payment of the purchase price by wire transfer of immediately
available funds to the Seller, or to such bank as may be designated by the
Seller, the Seller will deliver the Certificates to the Representative, for the
account of the Underwriters, at the office of Xxxxxxx Xxxx & Xxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on November 21, 1995 at 10:00 a.m., New York
City time, or at such other time not later than seven full business days
thereafter as the Representative and the Seller determine, such time being
herein referred to as the "Closing Date." The Certificates to be so delivered
will be initially represented by one or more Certificates registered in the name
of Cede & Co., the nominee of The Depository Trust Company ("DTC"). The
interests of beneficial owners of the Certificates will be represented by book
entries on the records of DTC and participating members thereof. Definitive
Certificates will be available only under the limited circumstances set forth in
the Pooling and Servicing Agreement. The certificates evidencing the
Certificates will be made available for checking and packaging at the offices of
Xxxxxxx Xxxx & Xxxxx 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 Securities for sale to the public as set forth in
the Prospectus.
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5. Covenants of the Seller, the Guarantor and CITSF. Each of the Seller,
the Guarantor and CITSF, jointly and severally, covenants and agrees with the
several Underwriters that:
(a) The Registrants will file the Prospectus with the Commission pursuant
to and in accordance with subparagraph (2) (or, if applicable and if consented
to by the Representative, subparagraph (5)) of Rule 424(b) not later than the
second business day following the execution and delivery of this Agreement. The
Registrants will advise the Representative promptly of any such filing pursuant
to Rule 424(b).
(b) The Registrants 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 Registrants
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 Registrants will arrange for the qualification of the Offered
Securities for offering and sale under the securities laws of such jurisdictions
in the United States as the Representative may reasonably designate and will
continue such qualifications in effect so long as necessary under such laws for
the distribution of such Offered Securities, provided that in connection
therewith the Registrants 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 Securities is
required to be delivered by law in connection with sales by any Underwriter or
dealer, either (i) any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or (ii) for any other reason it shall be necessary to
amend or supplement the Prospectus to comply with the Act, the Registrants 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
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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 Registrants will provide to the Trust, to be made to make generally
available to Certificateholders by the Trust, as soon as practicable, but no
later than sixteen months after the date hereof, an earnings statement of the
Trust covering a period of at least twelve consecutive months beginning after
the later of (i) the effective date of the registration statement relating to
the Registered Securities and (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective prior
to the date of this Agreement and, in each case, satisfying the provisions of
Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(f) The Registrants will furnish to each of the Underwriters copies of the
Registration Statement (two of which will be signed and include all exhibits),
each related preliminary prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as the Representative may from time to time reasonably request.
(g) So long as any of the Certificates are outstanding, the Seller, the
Guarantor or CITSF, as the case may be, will furnish to the Representative
copies of all written reports or other written communications (financial or
otherwise) furnished or made available to 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, (ii) CIT
will furnish to the Representative and, upon request, to each of the other
Underwriters, (a) as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year and (b) as soon as
available, a copy of each report and any definitive proxy statement of CIT filed
with the Commission under the 1934 Act, and (iii) such additional information
concerning the Seller, the Guarantor (which is not confidential relating to the
ability of CIT to meet its obligations under the Limited Guarantee) or CITSF
(relating to the Contracts, the servicing thereof or the ability of CITSF to act
as Servicer), the Certificates, the Limited Guarantee or the Trust as the
Representative may reasonably request from time to time.
(h) Whether or not the transactions contemplated by this Agreement are
consummated, the Seller, the Guarantor and CITSF will pay or cause to be paid
all costs and expenses
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incident to the performance of their respective obligations hereunder, including
(i) the preparation, issuance and delivery of the Certificates, (ii) any fees
charged by Xxxxx'x Investors Service, Inc. ("Moody's") and Standard & Poor's
Structured Ratings Group, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P"
and, together with Moody's, the "Rating Agencies") for the rating of the
Certificates, (iii) the expenses incurred in printing, reproducing and
distributing the registration statement as filed, the Registration Statement,
preliminary prospectuses and the Prospectus (including any amendments and
supplements thereto required pursuant to Section 5(d) hereof), (iv) the fees and
disbursements of counsel to the Seller, the Guarantor and CITSF and the
independent public accountants of the Seller, (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 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 Securities
for sale in the jurisdictions that the Representative may designate pursuant to
Section 5(c) hereof and in connection with the preparation of any blue sky
survey and legal investment survey and (viii) the printing and delivery to the
Underwriters, in such quantities as the Underwriters may reasonably request, of
copies of the Basic Documents. Subject to Section 8 hereof, the Underwriters
shall be responsible for their own costs and expenses, including the fees and
expenses of their counsel (other than the reasonable expenses of the
Representative including the reasonable fees and disbursements of its counsel,
in connection with the initial qualification of the Offered Securities for sale
in the jurisdictions that the Representative may designate pursuant to Section
5(c) hereof and in connection with the preparation of any blue sky survey and
legal investment survey).
(i) On or before the Closing Date, the Seller, CITSF and CITCF-NY shall
cause each of their respective books and records (including any computer
records) relating to the Contracts to be marked to show the Trust's absolute
ownership of the Contracts, and from and after the Closing Date neither the
Seller nor CITSF, as Servicer, shall take any action inconsistent with the
Trust's ownership of such Contracts, other than as permitted by the Pooling and
Servicing Agreement.
(j) Until the retirement of the Certificates, or until such time as the
Underwriters shall cease to maintain a secondary market in the Certificates,
whichever occurs first, the Seller or CITSF 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.
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(k) To the extent, if any, that either of the ratings provided with respect
to the Certificates by either Rating Agency is conditional upon the furnishing
of documents or the taking of any other actions by the Seller, the Guarantor,
CITSF or CITCF-NY, as the case may be, shall furnish any 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 Seller will prepare, or cause to be prepared, and file, or cause to
be filed, a timely election to treat the Contract 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.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Certificates will be
subject to the accuracy of the representations and warranties on the part of the
Seller, the Guarantor and CITSF, and contained or incorporated herein, to the
accuracy of the statements of officers of the Seller, the Guarantor and CITSF
made pursuant to the provisions hereof, to the performance by the Seller, the
Guarantor and CITSF of its obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the date hereof, the Seller and the Representative shall
have received an agreed-upon procedures letter, dated as of the date of this
Agreement, of KPMG Peat Marwick LLP substantially in the form of the draft to
which the Representative has previously agreed and otherwise in form and in
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 any two of the President, any Vice President, the
principal financial or the principal accounting officer of (i) the Seller
representing and warranting that, as of the Closing Date, to the best of each
such officer's knowledge after reasonable investigation, the representations and
warranties of the Seller in this Agreement and the other Basic Documents to
which it is a party are true and correct, that the Seller has complied with
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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 this
Agreement and the other Basic Documents to which it is a party are true and
correct and that CITSF has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder or thereunder and
(iii) the Guarantor 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 Guarantor in this Agreement and the other
Basic Documents to which it is a party are true and correct, that the Guarantor
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.
(d) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the Trust,
the Seller, CIT (in its capacity as Guarantor), CITSF or CITCF-NY which, in the
judgment of a majority in interest of the Underwriters (including the
Representative), materially impairs the investment quality of the Certificates
or makes it impractical or inadvisable to proceed with completion of the sale of
and payment for the Certificates; (ii) any downgrading in the rating of any debt
securities of CIT or CITSF or any of their direct or indirect subsidiaries by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any such debt
securities (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating); (iii)
any suspension or limitation of trading in securities generally on the New York
Stock Exchange or any setting of minimum prices for trading on such exchange;
(iv) any banking moratorium declared by Federal, New Jersey or New York
authorities; or (v) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the judgment
of a majority in interest of the Underwriters (including the
- 13 -
Representative), the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Certificates.
(e) The Representative shall have received a written opinion of in-house
General Counsel of the Seller, CITSF and CITCF-NY, or other counsel satisfactory
to the Representative in its reasonable judgment, shall have furnished to the
Representative such counsel's written opinion, dated the Closing Date, in
substantially the form set forth below, with such changes therein as the
Representative and counsel for the Underwriters shall reasonably agree:
(i) The Seller and CITSF have each been duly organized and are validly
existing as corporations in good standing under the laws of the State of
Delaware. CITCF-NY has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of New York.
(ii) The Seller, CITSF and CITCF-NY each have the corporate power and
corporate authority to carry on their respective businesses as described in
the Prospectus and to own and operate their respective properties in
connection therewith.
(iii) The Seller, CITSF and CITCF-NY are each corporations duly
organized, validly existing and in good standing under the laws of the
jurisdiction of their organization and each has the corporate power to own
its assets and to transact the business in which it is currently engaged
and to perform their respective obligations under each of the Basic
Documents to which it is a party. The Seller, CITSF and CITCF-NY are each
qualified to do business as a foreign corporation and each is in good
standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a material
adverse effect on the business, properties, assets, or condition (financial
or other) of the Seller, CITSF or CITCF-NY, respectively or on their
ability to perform their respective obligations under the Basic Documents.
(iv) This Agreement has been duly authorized, executed and delivered
by each of the Seller and CITSF, and each is a valid and binding obligation
of the Seller and CITSF enforceable against each of the Seller and CITSF in
accordance with its terms, except
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that (A) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (B) such enforcement may be
limited by general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law), and (C) the enforceability
as to rights to indemnity thereunder may be limited under applicable law.
(v) Each of the Basic Documents to which the Seller, CITSF or CITCF-NY
is a party has been duly authorized, executed and delivered by the Seller,
CITSF and CITCF-NY, as applicable,, and each constitutes a valid and
binding obligation of, each of the Seller, CITSF and CITCF-NY , enforceable
against each of the Seller, CITSF and CITCF-NY in accordance with its
terms, except that (A) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (B) such
enforcement may be limited by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
(vi) The execution and delivery by each of the Seller, CITSF and
CITCF-NY of each of the Basic Documents to which it is a party, the
performance of their respective obligations thereunder and the signing of
the Registration Statement by the Seller are within the corporate power of
the Seller, CITSF and CITCF-NY, as applicable, and have been duly
authorized by all necessary corporate action on the part of the Seller,
CITSF and CITCF-NY, as applicable; and neither the issue and sale of the
Certificates, nor the consummation of the transactions contemplated by the
Basic Documents nor the fulfillment of the terms thereof will, to the best
of such counsel's knowledge, conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or asset of the Seller, CITSF or CITCF-NY
pursuant to, any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Seller, CITSF or CITCF-NY is a party or by
which either may be bound or to which the property or assets of the Seller,
CITSF or CITCF-NY are subject (which contracts, indentures, mortgages, loan
agreements, notes, leases and other such instruments have been identified
by the Seller, CITSF or CITCF-NY to such counsel), nor will such action
result in any violation of the provisions of the certificate of
incorporation
- 15 -
or by-laws of the Seller, CITSF or CITCF-NY or, to the best of such
counsel's knowledge, any law, administrative regulation or administrative
or court decree of any state or federal courts, regulatory bodies, other
body, governmental entity or arbitrator having jurisdiction over the
Seller, CITSF or CITCF-NY.
(vii) The Seller has duly authorized, executed and delivered the
written order to the Trustee to execute and deliver the Certificates
(viii) To the best of such counsel's knowledge, no filing or
registration with or notice to or consent, approval, authorization or order
of any New Jersey, New York or federal court or governmental authority or
agency is required for the consummation by the Seller, 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.
(ix) There are no legal or governmental proceedings pending to which
the Seller, CITSF or CITCF-NY is a party or of which any property of the
Seller, CITSF or CITCF-NY is the subject, and no such proceedings are known
by such counsel to be threatened or contemplated by governmental
authorities or threatened by others, (A) that are required to be disclosed
in the Registration Statement or (B)(1) asserting the invalidity of all or
part of any of the Basic Documents, (2) seeking to prevent the issuance of
the Certificates, (3) that could materially and adversely affect the
Seller's, CITSF's or CITCF-NY's obligations under any of the Basic
Documents or (4) seeking to affect adversely the federal or state income
tax attributes of the Certificates.
(x) Such counsel is familiar with CITSF's and CITCF-NY's standard
operating procedures relating to CITSF's and CITCF-NY's acquisition of a
perfected first priority security interest in the manufactured homes
financed by CITSF and CITCF-NY pursuant to manufactured housing installment
sale contracts and installment loan contracts in the ordinary course of
CITSF's and CITCF-NY's business. Assuming that CITSF's standard procedures
are followed with respect to the perfection of security interests in the
manufactured homes securing the Contracts (the "Manufactured Homes") (and
such counsel has no reason to believe that either CITSF or CITCF-NY has not
or will not continue to follow its standard procedures in
- 16 -
connection with the perfection of security interests in the Manufactured
Homes), CITSF and CITCF-NY have acquired or will acquire a perfected first
priority security interest in the Manufactured Homes.
(xi) The Contracts are (i) chattel paper, as defined in the UCC in the
State of New Jersey and/or (ii) Land-Secured Contracts, as defined in the
Prospectus.
(xii) When the Purchase Agreement has been duly executed and delivered
by all parties thereto and the purchase price has been paid to CITSF by the
Seller in the manner specified in the Purchase Agreement, all of CITSF's
right, title and interest in and to the Contracts and any security
interests securing the Contracts will have been conveyed to the Seller and
the Seller will be the holder of a valid and binding security interest in
the Contracts against CITSF.
(xiii) The form of assignment to be executed and delivered by the
Seller to the Trustee pursuant to the Pooling and Servicing Agreement is
sufficient in form and substance to convey to the Trustee all of the
Seller's right, title and interest in and to the Contracts and any security
interests securing the Contracts. When the Basic Documents have each been
duly executed and delivered by all parties thereto, the assignment
described in the Pooling and Servicing Agreement has been duly executed and
delivered to the Trust by the Seller, the purchase price therefor has been
paid to the Seller by the Trust in the manner specified in the Pooling and
Servicing Agreement, and the Certificates have been duly executed and duly
authenticated and delivered by the Trustee to or upon the order of the
Seller in accordance with the Pooling and Servicing Agreement, all of the
Seller's right, title and interest in and to the Contracts and any security
interests securing the Contracts will have been conveyed to the Trust and
the Trust will be the holder of a valid and binding security interest in
the Contracts against the Seller.
(f) The Representative shall have received an opinion of in-house General
Counsel of the Guarantor 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 Guarantor has been duly organized and is validly existing as a
corporation in good standing
- 17 -
under the laws of the State of Delaware, with the corporate power and
corporate authority to carry on its businesses and own its properties as
described or incorporated in the Prospectus and to perform its respective
obligations under this Agreement and the Limited Guarantee, and is duly
qualified and licensed and in good standing in each jurisdiction where its
business requires such qualification or licensing.
(ii) This Agreement and the Limited Guarantee have been duly
authorized, executed and delivered by the Guarantor and each is a valid and
binding obligation of the Guarantor enforceable against the Guarantor 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) in the case of the enforceability of the Limited Guarantee, as to
rights to indemnity thereunder may be limited under applicable law.
(iii) The signing of the Registration Statement by the Guarantor is
within the corporate power of the Guarantor and has been duly authorized by
all necessary corporate action on the part of the Guarantor; neither the
issue and sale of the Limited Guarantee, nor the consummation of the
transactions contemplated herein and the fulfillment of the terms hereof,
or the performance by the Guarantor or its obligations under the Limited
Guarantee will, to the best of such counsel's knowledge, conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or asset of
the Guarantor pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Guarantor is a
party or by which it may be bound or to which the property or assets of the
Guarantor are subject (which material contracts, indentures, mortgages,
loan agreements, notes, leases and other such instruments have been
identified by the Guarantor to such counsel), nor will such action result
in any violation of the provisions of the certificate of incorporation or
by-laws of the Guarantor or, to the best of such counsel's knowledge, any
law, administrative regulation or administrative or court decree of any
state or federal courts,
- 18 -
regulatory bodies, other body, governmental entity or arbitrator having
jurisdiction over the Guarantor.
(iv) To the best of such counsel's knowledge, no filing or
registration with or notice to or consent, approval, authorization or order
of any New York or federal court or governmental authority or agency is
required for the consummation by the Guarantor of the transactions
contemplated by this Agreement or the Limited Guarantee, except such as may
be required under the Act or the Rules and Regulations, or state securities
or Blue Sky laws.
(v) There are no legal or governmental proceedings pending to which
the Guarantor is a party or of which any property of the Guarantor is the
subject, and no such proceedings are known by such counsel to be threatened
or contemplated by governmental authorities or threatened by others, (A)
that are required to be disclosed in the Registration Statement or (B)(1)
asserting the invalidity of all or part of this Agreement or the Limited
Guarantee, (2) seeking to prevent the issuance of the Limited Guarantee,
(3) that could materially and adversely affect the Guarantor's obligations
under this Agreement or the Limited Guarantee or (4) seeking to affect
adversely the federal or state income tax attributes of the Certificates.
(vi) 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 I do not express any opinion.
(vii) The conditions to the use by the Guarantor of a registration
statement on Form S-3 under the Act as set forth in the General
Instructions to Form S-3 have been satisfied with respect to the
Registration Statement and the Prospectus. To the best of my knowledge,
there are no contracts or documents of the Guarantor 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.
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(viii) The Limited Guarantee is a senior, general, unsecured
obligation of the Guarantor that ranks pari passu with all other senior,
general, unsecured obligations of the Guarantor.
(g) The Representative shall have received a written opinion of Xxxxxxxxxx,
Xxxxxxx, Kohl, Xxxxxx, and Xxxxxx, special local New Jersey counsel for the
Guarantor, the Seller and CITSF, dated the Closing Date, in form and substance
satisfactory to the Representative and counsel for the Underwriters, to the
effect that: the security interest of the Trustee in the Contracts (other than
some of the Land Secured Contracts) and in the proceeds (as defined in Section
9-306(1) of the UCC) thereof will be perfected and will constitute a first
perfected security interest upon the filing of UCC financing statements
adequately describing the Contracts in the offices of the Secretary of State of
New Jersey naming the Seller as the debtor and the Trustee as the secured party;
provided, however, that (i) for purposes of its opinion in this paragraph such
counsel may assume, based solely on certificates of the Seller, that (1) the
Seller has good title and is the sole owner and holder of each Contract free and
clear of any right of recision, set-off, defense or counterclaim, charges,
security interests or other rights or restrictions of any nature and has full
right and authority, subject to no agreement with any other party, to sell,
pledge and assign the same, (2) immediately prior to conveyance thereof to the
Seller, CITSF was the obligee under the Contracts and CITSF has assigned all of
its rights, title and interest in the Contracts to the Seller, (3) immediately
prior to conveyance thereof to the Seller, CITSF has good title and was the sole
owner and holder of each Contract free and clear of any right of rescission,
set-off, defense or counterclaim, charges, security interests or other rights or
restrictions of any nature and has full right and authority, subject to no
agreement with any other party, to sell, pledge and assign the same, (4) no
Contract constitutes proceeds of any property subject to a third party's
security interest or other lien and (5) that the Seller's chief executive office
is, and during the past four months has been, in the State of New Jersey; (ii)
for purposes of its opinion in this paragraph, such counsel may assume that (1)
the Trustee took the assignment of the Contracts in good faith for value and
without notice or knowledge of any adverse claims, liens or encumbrances or of
any defense against or claim to the Contracts on the part of any person and (2)
the Trustee gave value for the Contracts and CITSF took possession of the
Contracts as agent for the Trustee in the ordinary course of the Trustee's
business; and (iii) such counsel need express no opinion (1) as to the
continuation of a security interest in the Contracts in the event CITSF does not
have or relinquishes possession of such Contracts and a subsequent purchaser
takes possession without notice of the Trustee's interest, (2) as to the
continuation of
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a security interest in the Contracts if continuation statements are not filed as
required by the Pooling and Servicing Agreement and the UCC, (3) as to the
priority of any security interest in the Contracts against any liens, claims or
other interests that arise by operation of law and do not require any filing or
similar action in order to take priority over perfected security interests and
(4) as to the effect of the laws of any other State that may govern the
perfection or priority of the security interest in the Contracts by possession.
In addition, because it is not practicable to review each of the Contracts, in
rendering its opinion, such counsel may assume that each Contract evidences a
monetary obligation and a security interest in a Manufactured Home that
constituted personal property, and not real property, at the origination
thereof.
(h) The Representative shall have received a written opinion of Xxxxxxx
Xxxx & Xxxxx, special counsel to the Seller, 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 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 duly issued and outstanding and entitled to the benefits
of the Pooling and Servicing Agreement.
(ii) The Registration Statement became effective under the Act as of
January 5, 1995, Post-Effective Amendment No. 1 became effective under the
Act as of February 15, 1995 and Post-Effective Amendment No. 2 became
effective under the Act as of November 2, 1995 and, to the best of our
knowledge and information, 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 conditions to the use by the Seller of a registration
statement on Form S-11 under the Act as set forth in the General
Instructions to Form S-11 have been satisfied with respect to the
Registration Statement and the Prospectus.
(iv) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
- 21 -
(v) The Trust is not, and will not as a result of the offer and sale
of the Certificates as contemplated in the Prospectus and in this Agreement
become, required to register as an "investment company" under the
Investment Company Act of 1940, as amended.
(vi) The statements in the prospectus supplement relating to the
Offered Securities, dated November 14, 1995, under the caption "Description
of the Certificates," insofar as such statements purport to summarize
certain terms of the Certificates and the Basic Documents, present a fair
summary of such documents.
(vii) To the best of such counsel's knowledge, there are no contracts
or documents of the Seller which are required to be filed as exhibits to
the Registration Statement pursuant to the Act or the Rules or Regulations
which have not been so filed.
(viii) 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, have been prepared or reviewed by such counsel and are correct in
all material respects.
(ix) The registration statement on Form S-3 and Form S-11 (No.
33-85224) 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, economic
conditions or financial condition of the portfolio information included in
or incorporated by reference into the registration statement on Form S-3
and Form S-11 (No. 33-85224) 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 Seller, the Guarantor, CITSF and CITCF-NY,
counsel to the Guarantor, CITSF and CITCF-NY 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,
- 22 -
completeness or fairness of the statements contained in the registration
statement on Form S-3 and Form S-11 (No. 33-85224) relating to the Registered
Securities, the Registration Statement or Prospectus (except as stated in
Sections 6(h)(vi) and 6(h)(viii) above) and has made no independent check or
verification thereof for the purpose of rendering this opinion, on the basis of
the foregoing (relying as to materiality to a large extent upon the certificates
of officers and other representatives of the Seller, the Guarantor, CITSF and
CITCF-NY), no facts have come to their attention that leads such counsel to
believe that the registration statement on Form S-3 and Form S-11 (No. 33-85224)
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, 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, economic conditions or financial condition of the portfolio
included in or incorporated by reference into, the Registration Statement or
Prospectus.
Said counsel may state that they are admitted to practice only in the State
of New York, that they are not admitted to the Bar in any other State and are
not experts in the law of any other State and to the extent that the foregoing
opinions concern the laws of any other State such counsel may rely upon the
opinion of counsel satisfactory to the Underwriters and admitted to practice in
such jurisdiction. Any opinions relied upon by such counsel as aforesaid shall
be addressed to the Underwriters and shall be delivered together with the
opinion of such counsel, which shall state that such counsel believes that their
reliance thereon is justified.
(i) The Representative shall have received an opinion of Xxxxxxx & Xxxxxxx
& Xxxxx, counsel for the Underwriters, dated the Closing Date, with respect to
the validity of the Certificates and such other related matters as the
Representative shall require and the Seller shall have furnished or caused to be
furnished to such counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
(j) The Representative shall have received an opinion of Xxxxxx & Xxxxxx,
counsel to the Trustee, dated the Closing Date,
- 23 -
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 principals of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(ii) The Certificates have been duly executed, authenticated and
delivered by the Trustee in accordance with the terms of the Pooling &
Servicing Agreement.
(k) 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 an Illinois banking corporation validly existing
under the laws of the state of Illinois 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 Certificates, or (B) seeking to prevent the
issuance of the Certificates or consummation of any of the transactions
contemplated by the Pooling and Servicing Agreement or the 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 Certificates.
- 24 -
(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 Certificates.
(l) The Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates and Class A-4 Certificates shall each have been rated "Aaa" by
Xxxxx'x and "AAA" by S&P, the Class A-5 Certificates shall have been rated at
least "Aa3" by Xxxxx'x and "AA-" by S&P and the Class B Certificates shall have
been rated at least "Baa2" by Xxxxx'x and "BBB-" by S&P.
(m) The Representative shall have received evidence satisfactory to it and
counsel for the Underwriters that, on or before the Closing Date, UCC-1
financing statements shall have been submitted to the Trustee for filing in the
appropriate filing offices reflecting the transfer of the interest in the
Contracts and the proceeds thereof (A) from CITCF-NY to CITSF, to the extent
such Contracts have been transferred to CITSF from CITCF-NY, (B) from CITSF to
the Seller and (C) from the Seller to the Trustee, on behalf of the Trust, or
the Trust, as the case may be.
(n) 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.
(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
Certificates as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Seller in connection with the issuance and sale of
the Certificates as herein contemplated shall in form and substance be
satisfactory to the Representative and counsel for the Underwriters.
- 25 -
7. Indemnification and Contribution. (a) CIT and CITSF will, jointly and
severally, 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 preliminary
prospectus supplement, 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) CIT and CITSF will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Seller, the Guarantor or CITSF by any Underwriter
through the Representative specifically for use therein it being understood and
agreed that the only such information furnished by any Underwriter consists of
the Underwriters' Information and (ii) CITSF shall not, in connection with any
one such action or separate but substantially similar or related transactions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys for all such Underwriters, which firm shall be
designated in accordance with Section 7(c) hereof.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Seller, the Guarantor and CITSF against any losses, claims, damages
or liabilities to which the Seller, the Guarantor or CITSF may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus or 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
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conformity with written information furnished to the Seller, the Guarantor or
CITSF by such Underwriter through the Representative specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Seller, the Guarantor or CITSF in connection with investigating or defending
any such action or claim as such expenses are incurred, it being understood and
agreed that (i) the only such information furnished by any Underwriter consists
of the information contained under the caption "Underwriting" in the preliminary
prospectus supplement relating to the Certificates dated November 10, 1995 and
in the prospectus supplement relating to the Certificates dated November 14,
1995 (the "Underwriters' Information") and (ii) the Underwriters shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys for each of the Seller, the Guarantor
and CITSF, which firm shall be designated in accordance with Section 7(c)
hereof.
(c) Promptly after receipt by an indemnified party under this Section of
written notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and after acceptance by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
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(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above in such proportion as is
appropriate to reflect not only the relative benefits received by the Seller,
the Guarantor and CITSF on the one hand and the Underwriters on the other from
the offering of the Offered Securities but also the relative fault of the
Seller, the Guarantor and CITSF on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Seller, the Guarantor and
CITSF on the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering of the Offered
Securities (before deducting expenses) received by the Seller, the Guarantor and
CITSF bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Seller, the Guarantor, CITSF or by the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the 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 the Seller, the Guarantor and CITSF under this
Section shall be in addition to any liability which the Seller, the Guarantor
and CITSF may otherwise have and shall extend, upon the same terms and
conditions, to each
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person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Seller, the
Guarantor or CITSF, to each officer of the Seller or CITSF who has signed the
Registration Statement and to each person, if any, who controls the Seller, the
Guarantor or CITSF within the meaning of the Act.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Seller, the Guarantor and CITSF or their respective officers and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation or statement as to the results
thereof, made by or on behalf of any Underwriter, the Seller, the Guarantor,
CITSF or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the
Certificates. If this Agreement is terminated pursuant to Section 9 or if for
any reason the purchase of the Certificates by the Underwriters is not
consummated, the Seller, the Guarantor, CITSF and CITCF-NY shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5 hereof and the respective obligations of the Seller, the Guarantor, CITSF and
the Underwriters pursuant to Section 7 hereof shall remain in effect. If the
purchase of the Certificates by the Underwriters is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 9 or the occurrence of any event specified in clauses (iii), (iv) or
(v) of Section 6(d) hereof, the Seller, the Guarantor and CITSF will reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Certificates.
9. Failure to Purchase the Certificates. If any Underwriter or Underwriters
default in their obligations to purchase the principal amount of the Class or
Classes of Certificates opposite such Underwriter's name on Schedule I hereto
and the aggregate principal amount of such Class or Classes of Certificates that
such defaulting Underwriter or Underwriters agreed but failed to purchase does
not exceed 10% of the total principal amount of the Certificates, the
Representative may make arrangements satisfactory to the Seller, the Guarantor
and CITSF for the purchase of such Certificates by other persons, including any
of the Underwriters, but if no such arrangements are made by the Closing Date,
the non-defaulting Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the
- 29 -
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 Certificates with respect to such default or defaults
exceeds 10% of the total principal amount of the Certificates and arrangements
satisfactory to the Representative, the Seller, the Guarantor and CITSF for the
purchase of such Certificates by other persons are not made within 36 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter, the Seller, the Guarantor or CITSF, except as
provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter or Underwriters from liability for
its default.
10. Notices. All communications hereunder will be in writing and, if sent
to the Representative or the Underwriters, will be mailed, delivered or sent by
facsimile transmission and confirmed to it at CS First Boston Corporation, Park
Avenue Plaza, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Transactions Advisory Group (facsimile number (000) 000-0000); if sent to the
Seller, will be mailed, delivered or sent by facsimile transmission and
confirmed to it at The CIT Group Securitization Corporation II, 000 XXX Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxx X. Xxxx, Xx., President
(facsimile number (000) 000-0000); if sent to CIT, will be mailed, delivered or
sent by facsimile transmission and confirmed to it by The CIT Group Holdings,
Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
X. Xxxxxx, Executive Vice President and Chief Financial Officer (facsimile
number (000) 000-0000); and if sent to CITSF, will be mailed, delivered or sent
by facsimile transmission and confirmed to it at The CIT Group/Sales Financing,
Inc., 000 XXX Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxx X. Xxxx,
Xx., President (facsimile number (000) 000-0000).
11. No Bankruptcy Petition. Each Underwriter agrees that, prior to the date
which is one year and one day after the payment in full of all securities issued
by the Seller or by a trust for which the Seller was the depositor which
securities were rated by any nationally recognized statistical rating
organization, it will not institute against, or join any other person in
instituting against, the Seller any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any Federal or
state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the Underwriters, the Seller, CIT and CITSF and their respective successors
and the officers and
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directors and controlling persons referred to in Section 7, and no other person
will have any right or obligations hereunder.
13. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with the transactions described in this
Agreement, and any action taken by Representative under this Agreement will be
binding upon all the Underwriters.
14. 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.
15. 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 Seller, CIT, CITSF and the several
Underwriters in accordance with its terms.
Very truly yours,
THE CIT GROUP SECURITIZATION CORPORATION II
By:________________________________
Name:
Title:
THE CIT GROUP/SALES FINANCING, INC.
By:________________________________
Name:
Title:
THE CIT GROUP HOLDINGS, INC.
By:________________________________
Name:
Title:
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written:
CS FIRST BOSTON CORPORATION
By:____________________________
Name:
Title:
Acting on behalf of itself
and as the Representative
of the several Underwriters.
- 32 -
SCHEDULE I
Original
Principal Remittance
Underwriter Class Balance $ Price % Price $ Rate%
----------- ----- ----------- --------- ------------- ----------
CS First Boston Corporation A-1 18,132,000 99.743750 18,085,536.75 5.90%
Xxxxxx Xxxxxxx & Co. Incorporated A-1 18,131,000 99.743750 18,084,539.31 5.90%
CS First Boston Corporation A-2 17,728,000 99.653125 17,666,506.00 6.00%
Xxxxxx Xxxxxxx & Co. Incorporated A-2 17,728,000 99.653125 17,666,506.00 6.00%
CS First Boston Corporation A-3 12,217,000 99.659375 12,175,385.84 6.25%
Xxxxxx Xxxxxxx & Co. Incorporated A-3 12,217,000 99.659375 12,175,385.84 6.25%
CS First Boston Corporation A-4 32,600,000 99.190625 32,336,143.75 7.00%
Xxxxxx Xxxxxxx & Co. Incorporated A-4 32,600,000 99.190625 32,336,143.75 7.00%
CS First Boston Corporation A-5 7,968,000 99.531250 7,930,650.00 6.95%
Xxxxxx Xxxxxxx & Co. Incorporated A-5 7,968,000 99.531250 7,930,650.00 6.95%
CS First Boston Corporation B 10,956,194 99.281250 10,877,446.36 7.65%
Xxxxxx Xxxxxxx & Co. Incorporated B 10,956,000 99.281250 10,877,253.76 7.65%
Total Price to Public: $ 198,872,238.58
Total Price to Seller: $ 198,142,147.36
Underwriting Discounts
and Commissions: $ 730,091.22
SCHEDULE II
Locations of Chief Executive Offices and Principal Places of Business
The CIT Group Securitization
Corporation II 000 XXX Xxxxx
Xxxxxxxxxx, XX 00000-0000
The CIT Group/Sales Financing, Inc. 000 XXX Xxxxx
Xxxxxxxxxx, XX 00000-0000
The CIT Group/Consumer Finance,
Inc. (NY) 000 XXX Xxxxx
Xxxxxxxxxx, XX 00000-0491
Locations of Records
The CIT Group Securitization
Corporation II 000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0000
The CIT Group/Sales Financing, Inc. 000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0000
The CIT Group/Consumer Finance,
Inc. (NY) 000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0610
