Exhibit 1.1
CIT MARINE TRUST ____-_
$___________ CLASS A ____% ASSET BACKED NOTES
$___________ ____% ASSET BACKED CERTIFICATES
THE CIT GROUP SECURITIZATION CORPORATION II
(SELLER)
____________, ____
UNDERWRITING AGREEMENT
[ ]
as Representative of the Several Underwriters (the "Representative"),
[address]
Ladies and Gentlemen:
1. Introductory The CIT Group Securitization Corporation II, a Delaware
corporation (the "Seller") and a wholly-owned limited-purpose finance subsidiary
of The CIT Group Holdings, Inc., a Delaware corporation ("CIT") proposes to
cause CIT Marine Trust ____-_ (the "Trust") to issue and sell $ ___________
principal amount of its Class A ____ % Asset Backed Notes (the "Notes") and
$___________ principal amount of its ____ % Asset Backed Certificates (the
"Certificates" and, together with the Notes, the "Securities"). The Securities
are registered under the registration statement referred to in Section 2(a). The
assets of the Trust include, among other things, a pool of receivables generated
pursuant to marine installment sale contracts, marine installment loan contracts
or notes and U.S. Preferred Ship Mortgages (the "Initial Contracts") secured by
the new and used boats financed thereby (the "Initial Financed Boats") and
certain monies received thereunder on or after ____________ , ____, [amounts
deposited in the Pre-Funding Account and Capitalized Interest Account,] [the
right to receive payments under certain circumstances from funds deposited in
the Cash Collateral Account pursuant to the Cash Collateral Agreement to be
dated as of ____________ , ____ (the "Cash Collateral Agreement") between the
Trust, the Owner Trustee, the Servicer and ____________________ (the "Cash
Collateral Depositor") and the Sale and Servicing Agreement (as defined below),]
[additional receivables generated pursuant to marine installment sale contracts
(the "Subsequent Contracts"; and together with the Initial Contracts, the
"Contracts") secured by the new and used boats financed thereby (the "Subsequent
Financed
Boats;" and together with the Initial Financed Boats, the "Financed Boats") to
be conveyed to the Trust subsequent to the date of issuance of the Securities
and certain monies received thereunder on or after their respective subsequent
cutoff dates,] and the other property and the proceeds thereof to be conveyed to
the Trust pursuant to the Sale and Servicing Agreement to be dated as of
____________ , ____ (the "Sale and Servicing Agreement") among the Trust, the
Seller, and The CIT Group/Sales Financing, Inc., a wholly-owned subsidiary of
CIT, as servicer ("CITSF" or the "Servicer"). The Contracts and other assets of
the Trust will be sold by CITSF to the Seller pursuant to a Purchase Agreement
to be dated as of ____________ , ____ (the "Purchase Agreement") between CITSF
and the Seller, and finally by the Seller to the Trust pursuant to the Sale and
Servicing Agreement. Certain of the Contracts and other property sold by CITSF
to the Seller will first be purchased by CITSF from The CIT Group/Consumer
Finance, Inc. (NY) ("CITCF-NY") pursuant to a Purchase Agreement to be dated as
of _____________ , ____ (the "CITCF-NY Sale Agreement") between CITCF-NY and
CITSF. The Servicer will service the Contracts on behalf of the Trust pursuant
to the Sale and Servicing Agreement. The Notes will be issued pursuant to the
Indenture to be dated as of _____________ , ____ (as amended and supplemented
from time to time, the "Indenture"), between the Trust and ____________________
(the "Indenture Trustee"). Pursuant to the Sale and Servicing Agreement, the
Servicer will agree to perform certain administrative tasks imposed on the Trust
under the Indenture. The Certificates, each representing a fractional undivided
interest in the Trust, will be issued pursuant to a Trust Agreement to be dated
as of ____________ , ____ (the "Trust Agreement"), between the Seller and
____________________ , as owner trustee (the "Owner Trustee").
Capitalized terms used herein and not otherwise defined shall have the
meanings given them in the Sale and Servicing Agreement and the Indenture.
The Seller and CITSF hereby agree with the several Underwriters named
in Schedule I hereto (the "Underwriters") as follows:
2. Representations and Warranties of the Seller and CITSF. Each of the
Seller and CITSF, jointly and severally, represents and warrants to, and agrees
with, the Underwriters, as of the date hereof and as of the date of the purchase
and sale of the Securities pursuant to Section 3 hereof (the "Closing Date")
that:
(a) A registration statement on Form S-3 (No. 333-______)
relating to the Securities, including a form of prospectus, has been
filed with the Securities and Exchange Commission (the "Commission")
and either (i) has been declared effective under the Securities Act of
1933, as amended (the "Act"), and is not proposed to be amended or (ii)
is proposed to be amended by amendment or post-effective amendment. If
the Seller does not propose to amend such registration statement and if
any post-effective amendment to such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent such amendment has been declared effective
by the Commission. For purposes of this Agreement, "Effective Time"
means (i) if the Seller has advised the Representative that it does not
propose to amend such registration statement, the date and time as of
which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission, or (ii) if the
Seller has advised the Representative that it proposes to file an
amendment or post-effective amendment to such registration statement,
the date and time as of which such registration statement, as amended
by such amendment or post-effective amendment, as the case may be, is
declared effective by the Commission. "Effective Date" means the date
of the Effective Time. Such registration statement, as amended at the
Effective Time, including all material incorporated by reference
therein and including all information (if any) deemed to be a part of
such registration statement as of the Effective Time pursuant to Rule
430A(b) under the Act, is hereinafter referred to as the "Registration
Statement," and the form of prospectus relating to the Securities, as
first filed with the Commission pursuant to and in accordance with Rule
424(b) ("Rule 424(b)") under the Act or (if no such filing is required)
as included in the Registration Statement, including all material
incorporated by reference in such prospectus is hereinafter referred to
as the "Prospectus."
(b) If the Effective Time is prior to the execution and
delivery of this Agreement: (i) on the Effective Date, the Registration
Statement conformed in all respects to the requirements of the Act, the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the rules and regulations of the Commission promulgated under the Act
and the Trust Indenture Act (the "Rules and Regulations") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (ii) on the date of this
Agreement, the Registration Statement conforms, and at the time of
filing of the Prospectus pursuant to Rule 424(b), the Registration
Statement and the Prospectus will conform, in all respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading. If the Effective Time is
subsequent to the execution and delivery of this Agreement: (i) on the
Effective Date, the Registration Statement and the Prospectus will
conform in all material respects to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations, (ii) on the
Effective Date, the Registration Statement will not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading and (iii) on the Effective Date, at
the time of filing of the Prospectus pursuant to Rule 424(b) and at the
Closing Date, the Prospectus will not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. The
two preceding sentences do not apply to statements in or omissions from
the Registration Statement or Prospectus based upon written information
furnished to the Seller by any Underwriter through the Representative
specifically for use therein. The Seller and CITSF acknowledge that any
information furnished by any of the Underwriters specifically for use
in the Registration Statement, any preliminary prospectus or the
Prospectus is the Underwriters' Information (as defined in Section
7(a)).
(c) Each of the Seller and CITSF have been duly organized and
are validly existing as corporations in good standing under the laws of
the State of Delaware. CITCF-NY has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of New York. Each of the Seller, CITSF and CITCF-NY have corporate
power and authority to own, lease and operate their respective
properties and conduct their respective businesses as described in the
Prospectus and to enter into and perform their obligations under each
of the Basic Documents (as defined below) to which it is a party; and
each of the Seller, CITSF and CITCF-NY is duly qualified to do business
as a foreign corporation and is in good standing in each jurisdiction
in which the character of the business transacted by it or properties
owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on its
respective business, properties, assets, or condition (financial or
other) or on its ability to perform its obligations under any of the
Basic Documents to which it is a party. "Basic Documents" means this
Agreement, the Sale and Servicing Agreement, the Trust Agreement, the
Indenture, [the Cash Collateral Agreement,] the CITCF-NY Sale
Agreement, the Purchase Agreement, the Note Depository Agreement and
the Certificate Depository Agreement.
(d) 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.
(e) Neither CITSF nor CITCF-NY is in violation of its
certificate of incorporation or by-laws or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it or its respective properties may be bound,
which default might result in any material adverse change in the
financial condition, earnings, affairs or business of either of CITSF
or CITCF-NY or which might materially and adversely affect the
properties or assets thereof or their ability to perform its
obligations under any of the Basic Documents to which it is a party.
(f) The execution and delivery by 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 its corporate power 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 Securities 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,
nor the grant of the security interest in the Collateral to the
Indenture Trustee pursuant to the Indenture, will materially conflict
with or result in a material breach of, or constitute a material
default under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Seller or its
properties or its certificate of incorporation or by-laws 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 imposition of any lien, charge or encumbrance upon
any of its property pursuant to the terms of any such indenture,
mortgage, contract or other instrument.
(g) The execution and delivery by each of CITSF and CITCF-NY
on and as of the Closing Date of any of the Basic Documents to which it
is a party and the performance of its obligations thereunder, will be
within the corporate power of each of CITSF and CITCF-NY and duly
authorized by all necessary corporate action on the part of each of
CITSF and CITCF-NY on and as of the Closing Date; and neither the
issuance and sale of the Securities to the Underwriters, nor the
execution and delivery by CITSF and CITCF-NY of any of the Basic
Documents to which it is a party, nor the consummation by CITSF and
CITSF-NY of the transactions therein contemplated, nor compliance by
CITSF and CITCF-NY with the provisions hereof or thereof, nor the grant
of the security interest in the Collateral to the Indenture Trustee
pursuant to the Indenture, will materially conflict with or result in a
material breach of, or constitute a material default under, any of the
provisions of any law, governmental rule, regulation, judgment, decree
or order binding on CITSF or CITCF-NY or their respective properties or
the certificate of incorporation or by-laws of CITSF or CITCF-NY, or
any of the provisions of any material indenture, mortgage, contract or
other instrument to which CITSF or CITCF-NY is a party or by which
CITSF or CITCF-NY is bound or result in the creation or imposition of
any lien, charge or encumbrance upon any of their respective property
pursuant to the terms of any such material indenture, mortgage,
contract or other instrument.
(h) This Agreement has been duly authorized, executed and
delivered by each of the Seller and CITSF, and it constitutes a legal,
valid and binding instrument enforceable against each of the Seller and
CITSF in accordance with its terms, subject (i) to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally, (ii) as to enforceability,
to general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and (iii) as to
enforceability with respect to rights of indemnity thereunder, to
limitations of public policy under applicable securities laws.
(i) The Sale and Servicing Agreement when executed and
delivered on the Closing Date will be duly authorized, executed and
delivered by each of the Seller and CITSF, and will constitute a legal,
valid and binding instrument enforceable against each of the Seller and
CITSF in accordance with its terms, subject (i) to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally and (ii) as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(j) The Trust Agreement when executed and delivered on the
Closing Date will be duly authorized, executed and delivered by the
Seller, and will constitute a legal, valid and binding instrument
enforceable against the Seller in accordance with its terms, subject
(i) to applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting creditors' rights generally and (ii) as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
[(k) The Cash Collateral Agreement when executed and delivered
on the Closing Date will be duly authorized, executed and delivered by
CITSF and will constitute a legal, valid and binding instrument
enforceable against CITSF in accordance with its terms, subject (i) to
applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally, and (ii) as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).]
(l) The Certificates, when duly and validly executed by the
Owner Trustee or an agent thereof on behalf of the Trust, authenticated
and delivered in accordance with the Trust Agreement, and delivered to
and paid for pursuant hereto will be validly issued and outstanding and
entitled to the benefits of the Trust Agreement.
(m) The Notes, when duly and validly executed by the Owner
Trustee or an agent thereof on behalf of the Trust, authenticated and
delivered in accordance with the Indenture, and delivered and paid for
pursuant hereto will be validly issued and outstanding and entitled to
the benefits of the Indenture.
(n) no filing or registration with, notice to or consent,
approval, authorization or order of any court or governmental authority
or agency is required for the consummation by the Seller or CITSF of
the transactions contemplated by any of the Basic Documents to which it
is a party, except such as may be required under the Act, the Rules and
Regulations, or state securities or Blue Sky laws.
(o) The Seller, CITSF 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 the Certificateholders or
the Noteholders under the Basic Documents, and none of the Seller,
CITSF or CITCF-NY 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 Seller, CITSF or CITCF-NY or their
ability to
perform their respective obligations under any of the Basic Documents
to which it is a party.
(p) As of the Closing Date, the Initial Contracts and related
property will have been duly and validly assigned to the Owner Trustee
in accordance with the Basic Documents; and when such assignment is
effected, a duly and validly perfected transfer of all such Initial
Contracts subject to no prior lien, mortgage, security interest,
pledge, charge or other encumbrance created by the Seller, CITSF or
CITCF-NY will have occurred. As of the Closing Date, the Trust's grant
of a security interest in the Collateral to the Indenture Trustee
pursuant to the Indenture will vest in the Indenture Trustee, for the
benefit of the Noteholders, a first priority perfected security
interest therein, subject to no prior lien, mortgage, security
interest, pledge, charge or other encumbrance created by the Seller,
CITSF or CITCF-NY. [As of each Subsequent Transfer Date, the Subsequent
Contracts and related property conveyed to the Trust on such date will
have been duly and validly assigned to the Owner Trustee in accordance
with the Basic Documents; and when such assignment is effected, the
duly and validly perfected transfer of all such Subsequent Contracts
will be subject to no prior lien, mortgage, security interest, pledge,
charge or other encumbrance created by the Seller, CITSF or CITCF-NY.
As of each Subsequent Transfer Date, the Trust's grant of a security
interest in the Collateral sold to the Trust on such Subsequent
Transfer Date pursuant to the Indenture will vest in the Indenture
Trustee, for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no prior lien, mortgage, security
interest, pledge, charge or other encumbrance created by the Seller,
CITSF or CITCF-NY.
(q) As of the Closing Date, each of the Initial Contracts will
meet the eligibility criteria described in the Prospectus [and as of
each Subsequent Transfer Date, each of the Subsequent Contracts being
transferred to the Trust will meet the eligibility criteria described
in the Prospectus].
(r) The chief executive office of each of the Seller, CITSF
and CITCF-NY is listed opposite its name on Schedule II hereto, which
office is the place where it is "located" for the purposes of Section
9-103(3)(d) of the Uniform Commercial Code as in effect in the State of
New York, and the offices of each of the Seller, CITSF and CITCF-NY
where it keeps its respective records concerning the Contracts are also
listed in said Schedule opposite its name and there have been no other
such locations during the four months preceding the Closing Date.
(s) Neither the Seller, CITSF nor the Trust Fund created by
the Sale and Servicing Agreement will be subject to registration as an
"investment company" under the Investment Company Act of 1940, as
amended (the "Investment Company Act").
(t) In connection with the offering of the Securities in the
State of Florida, the Seller hereby certifies that they have complied
with all provisions of Section 5.17.075 of the Florida Securities and
Investor Protection Act.
(u) As of the Closing Date, each of the respective
representations and warranties of the Seller, CITSF 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.
3. Purchase, Sale and Delivery of Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Seller agrees to cause the Trust to
sell to the Underwriters, and the Underwriters agree, severally and not jointly,
to purchase from the Trust, the principal amount of the Notes set forth opposite
the name of such Underwriter in Schedule I hereto at a purchase price equal to
the Total Price to Seller specified in Schedule III hereto plus accrued interest
at the Class A Rate from ____________, ____ to (but excluding) the Closing Date,
and the principal balance of the Certificates set forth opposite the name of
such Underwriter in Schedule I hereto at a purchase price equal to the Total
Price to Seller specified in Schedule IV hereto plus accrued interest at the
Pass-Through Rate from ____________, ____ to (but excluding) the Closing Date.
The Seller will deliver the Securities to the Representative,
for the account of the Underwriters, against payment of the purchase price by
wire transfer of immediately available funds to the Seller, or to such bank as
may be designated by the Seller, at the office of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on ____________ , ___ at 10:00 a.m., New
York City time, or at such other time not later than seven full business days
thereafter as the Representative and the Seller determine, such time being
herein referred to as the "Closing Date." The Securities to be so delivered will
be initially represented by one or more Notes and one or more Certificates
registered in the name of Cede & Co., the nominee of The Depository Trust
Company ("DTC"). The interests of beneficial owners of the Securities will be
represented by book entries on the records of DTC and participating members
thereof. [One Certificate in definitive form in the principal amount of
$___________ will be registered in the name of ____________________ (the
"Affiliated Purchaser Certificate"). Definitive Notes and Definitive
Certificates (other than the Affiliated Purchaser Certificate) will be available
only under the limited circumstances set forth in the Indenture and Trust
Agreement. The notes and certificates evidencing the Notes and Certificates will
be made available for checking and packaging at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇ LLP at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that, after the
Registration Statement becomes effective, the Underwriters propose to offer the
Securities for sale to the public (which may include selected dealers), on the
terms set forth in the Prospectus.
5. Covenants of the Seller and CITSF. Each of the Seller and CITSF,
jointly and severally, covenants and agrees with the several Underwriters that:
(a) If the Effective Time is prior to the execution and
delivery of this Agreement, the Seller will file the Prospectus,
properly completed, with the Commission pursuant to and in accordance
with subparagraph (1) (or, if applicable and if consented to by the
Representative, subparagraph (4)) of Rule 424(b) not later than the
earlier of (i) the second business day following the execution and
delivery of this Agreement or (ii) the
fifth business day after the Effective Date. The Seller will advise the
Representative promptly of any such filing pursuant to Rule 424(b).
(b) The Seller will advise the Representative promptly of any
proposal to amend or supplement the registration statement as filed or
the related prospectus or the Registration Statement or the Prospectus,
and will not effect any such amendment or supplementation without the
Representative's consent which consent shall not be unreasonably
withheld; and the Seller will also advise the Representative promptly
of the effectiveness of the Registration Statement (if the Effective
Time is subsequent to the execution and delivery of this Agreement) and
of any amendment or supplementation of the Registration Statement or
the Prospectus and of the institution by the Commission of any stop
order proceedings in respect of the Registration Statement and will use
its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) The Seller will arrange for the qualification of the
Securities for offering and sale under the securities laws of such
jurisdictions in the United States as the Representative may reasonably
designate and will continue such qualifications in effect so long as
necessary under such laws for the distribution of such Securities,
provided that in connection therewith the Seller shall not be required
to qualify as a foreign corporation to do business nor become subject
to service of process generally, but only to the extent required for
such qualification, in any jurisdiction in which it is not currently so
qualified.
(d) If, at any time when a prospectus relating to the
Securities is required to be delivered by law in connection with sales
by any Underwriter or dealer, either (i) any event shall have occurred
as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, or (ii) for any other reason it shall be necessary to amend
or supplement the Prospectus to comply with the Act, the Seller will
promptly notify the Representative and will promptly prepare and file
with the Commission, at their own expense, an amendment or a supplement
to the Prospectus which will correct such statement or omission or
effect such compliance. Neither the consent of the Representative to,
nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6 hereof.
(e) As soon as practicable, but not later than the
Availability Date (as defined below), the Seller will cause the Trust
to make generally available to Noteholders and Certificateholders an
earnings statement of the Trust covering a period of at least 12 months
beginning after the Effective Date which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 of the applicable Rules and
Regulations thereunder. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes the Effective
Date, except that, if such fourth fiscal quarter is the last quarter of
the Trust's fiscal year, "Availability Date" means the 90th day after
the end of such fourth fiscal quarter.
(f) The Seller will furnish to each of the Underwriters copies
of the Registration Statement (two of which will be signed and include
all exhibits), each related preliminary prospectus, the Prospectus and
all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Representative may from time
to time reasonably request.
(g) So long as any of the Securities are outstanding, the
Seller or CITSF, as the case may be, will furnish to the Representative
copies of all written reports or other written communications
(financial or otherwise) furnished or made available to Noteholders
and/or Certificateholders, and deliver to the Representative during
such same period, (i) as soon as they are available, copies of any
reports and financial statements filed by or on behalf of the Trust by
the Seller with the Commission pursuant to the Exchange Act and (ii)
such additional information concerning the Seller or CITSF (relating to
the Contracts, the servicing thereof or the ability of CITSF to act as
Servicer), the Notes, the Certificates or the Trust as the
Representative may reasonably request from time to time.
(h) Whether or not the transactions contemplated by this
Agreement are consummated, the Seller and CITSF will pay or cause to be
paid all costs and expenses incident to the performance of their
respective obligations hereunder, including (i) the preparation,
issuance and delivery of the Securities, (ii) any fees charged by
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and Standard & Poor's
Structured Ratings Group, a Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
("S&P" and, together with Moody's, the "Rating Agencies"), for the
rating of the Securities, (iii) the expenses incurred in printing,
reproducing and distributing the registration statement as filed, the
Registration Statement, preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto required pursuant to
Section 5(d) hereof), (iv) the fees and disbursements of counsel to the
Seller and CITSF and the independent public accountants of the Seller,
(v) the fees and disbursements of the Indenture Trustee and its
counsel, (vi) the fees and disbursement of the Owner Trustee and its
counsel, (vii) the fees of DTC in connection with the book-entry
registration of the Securities, (viii) the reasonable expenses of the
Representative including the reasonable fees and disbursements of its
counsel, in connection with the initial qualification of the Securities
for sale in the jurisdictions that the Representative may designate
pursuant to Section 5(c) hereof and in connection with the preparation
of any blue sky survey and legal investment survey and (ix) the
printing and delivery to the Underwriters, in such quantities as the
Underwriters may reasonably request, of copies of the Basic Documents.
Subject to Section 8 hereof, the Underwriters shall be responsible for
their own costs and expenses, including the fees and expenses of their
counsel (other than the reasonable expenses of the Representative
including the reasonable fees and disbursements of its counsel, in
connection with the initial qualification of the Securities for sale in
the jurisdictions that the Representative
may designate pursuant to Section 5(c) hereof and in connection with
the preparation of any blue sky survey and legal investment survey).
(i) On or before the Closing Date, the Seller, CITSF and
CITCF-NY shall cause each of their respective books and records
(including any computer records) relating to the Initial Contracts to
be marked to show the absolute ownership by the Owner Trustee in
accordance with Section 3.01B(d) of the Sale and Servicing Agreement,
on behalf of the Trust, of the Initial Contracts, and from and after
the Closing Date neither the Seller, CITSF, as Servicer, nor CITCF-NY
shall take any action inconsistent with the ownership by the Owner
Trustee on behalf of the Trust of the Initial Contracts, other than as
permitted by the Basic Documents.
(j) On or before each Subsequent Transfer Date, the Seller,
CITSF and CITCF-NY shall cause each of their respective books and
records (including any computer records) relating to the Subsequent
Contracts to be sold on such Subsequent Transfer Date to be marked to
show the absolute ownership by the Owner Trustee in accordance with
Section 3.01B(d) of the Sale and Servicing Agreement, on behalf of the
Trust, of such Subsequent Contracts, and from and after such Subsequent
Transfer Date neither the Seller, CITSF, as Servicer, nor CITCF-NY
shall take any action inconsistent with the ownership by the Owner
Trustee on behalf of the Trust of such Subsequent Contracts, other than
as permitted by the Basic Documents.
(k) Until the retirement of the Securities, or until such time
as the Underwriters shall cease to maintain a secondary market in the
Securities, whichever occurs first, the Seller or CITSF will deliver to
the Representative the certified public accountants' annual statements
of compliance furnished to the Indenture Trustee or the Owner Trustee
pursuant to the Indenture and the Sale and Servicing Agreement, as soon
as such statements are furnished to the Indenture Trustee or the Owner
Trustee.
(l) To the extent, if any, that either of the ratings provided
with respect to the Securities by either Rating Agency is conditional
upon the furnishing of documents or the taking of any other actions by
the Seller, CITSF or CITCF-NY, the Seller, CITSF or CITCF-NY, as the
case may be, shall furnish such documents and take any such other
actions as may be required to satisfy such conditions. A copy of any
such document shall be provided to the Representative at the time it is
delivered to the Rating Agencies.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Securities will be
subject to the accuracy of the representations and warranties on the part of the
Seller and CITSF, and contained or incorporated herein, to the accuracy of the
statements of officers of the Seller and CITSF made pursuant to the provisions
hereof, to the performance by the Seller and CITSF of its obligations hereunder
and to the following additional conditions precedent:
(a) On the date of this Agreement, the Representative and the
Seller shall have received a letter, dated the date of delivery
thereof, of KPMG Peat Marwick LLP
confirming that they are independent public accountants with respect to
the Seller and CITSF within the meaning of the Act and the Rules and
Regulations, substantially in the form of the draft to which the
Representative has previously agreed and otherwise in form and
substance satisfactory to the Representative and counsel for the
Underwriters.
(b) If the Effective Time is not prior to the execution and
delivery of this Agreement, the Effective Time shall have occurred not
later than 10:00 p.m., New York City time, on the date of this
Agreement or such later date as shall have been consented to by the
Representative. If the Effective Time is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section
5(a) hereof. On or prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Seller, shall be contemplated by the Commission.
(c) The Representative shall have received a certificate,
dated the Closing Date, executed by any two of the President, any Vice
President, the principal financial officer or the principal accounting
officer of (i) the Seller representing and warranting that, as of the
Closing Date, to the best of each such officer's knowledge after
reasonable investigation, the representations and warranties of the
Seller in this Agreement and the other Basic Documents to which it is a
party are true and correct, that the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder or thereunder at or prior to the Closing Date, that
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the best of their knowledge, are contemplated by the
Commission and (ii) CITSF in which such officers shall state that, to
the best of each such officer's knowledge after reasonable
investigation, the representations and warranties of CITSF in this
Agreement and the other Basic Documents to which it is a party are true
and correct and that CITSF has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder or thereunder at or prior to the Closing Date.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Trust, the Seller, CITSF
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 Securities or makes it impractical or
inadvisable to proceed with completion of the sale of and payment for
the Securities; (ii) any downgrading in the rating of any debt
securities of CIT or CITSF or any of their direct or indirect
subsidiaries by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act),
or any public announcement that any such organization has under
surveillance or review its rating of any such debt securities (other
than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities
generally on the New York Stock
Exchange or any setting of minimum prices for trading on such exchange;
(iv) any banking moratorium declared by Federal, New Jersey or New York
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress
or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the
Underwriters (including the Representative), the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of
and payment for the Securities.
(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,
dated the Closing Date, in substantially the form set forth below, with
such changes therein as the Representative and counsel for the
Underwriters shall reasonably agree:
(i) The Seller and CITSF have each been duly
organized and are validly existing as corporations in good
standing under the laws of the State of Delaware. CITCF-NY has
been duly organized and is validly existing as a corporation
in good standing under the laws of the State of New York.
(ii) The Seller, CITSF and CITCF-NY each have the
corporate power and corporate authority to carry on their
respective businesses as described in the Prospectus and to
own and operate their respective properties in connection
therewith.
(iii) The Seller, CITSF and CITCF-NY are each
corporations duly organized, validly existing and in good
standing under the laws of the jurisdiction of their
organization and each has the corporate power to own its
assets and to transact the business in which it is currently
engaged and to perform their respective obligations under each
of the Basic Documents to which it is a party. The Seller,
CITSF and CITCF-NY are each qualified to do business as a
foreign corporation and each is in good standing in each
jurisdiction in which the character of the business transacted
by it or properties owned or leased by it requires such
qualification and in which the failure so to qualify would
have a material adverse effect on the business, properties,
assets, or condition (financial or other) of the Seller, CITSF
or CITCF-NY, respectively or on their ability to perform their
respective obligations under the Basic Documents.
(iv) This Agreement has been duly authorized,
executed and delivered by each of the Seller and CITSF, and is
a valid and binding obligation of each of the Seller and CITSF
enforceable against each of the Seller and CITSF in accordance
with its terms, except that (A) such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights generally, (B) such enforcement may be
limited by general principles of equity (regardless of whether
enforcement is
sought in a proceeding in equity or at law), and (C) the
enforceability as to rights to indemnity thereunder may be
limited under applicable law.
(v) Each of the Basic Documents to which the Seller,
CITSF or CITCF-NY is a party have been duly authorized,
executed and delivered by each of the Seller, CITSF and
CITCF-NY, and each constitutes a valid and binding obligation
of, each of the Seller, CITSF and CITCF-NY, enforceable
against each of the Seller, CITSF and CITCF-NY in accordance
with its terms, except that (A) such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights generally and (B) such enforcement may be
limited by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(vi) The execution and delivery by each of the
Seller, CITSF and CITCF-NY of each of the Basic Documents to
which it is a party, the performance of their respective
obligations thereunder and the signing of the Registration
Statement by the Seller are within the corporate power of the
Seller, CITSF and CITCF-NY, as applicable, and have been duly
authorized by all necessary corporate action on the part of
the Seller, CITSF and CITCF-NY, as applicable; and neither the
issue and sale of the Securities, nor the consummation of the
transactions contemplated by the Basic Documents nor the
fulfillment of the terms thereof, nor the grant of the
security interest in the Collateral to the Indenture Trustee
pursuant to the Indenture will, to the best of such counsel's
knowledge, conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or asset of the
Seller, CITSF or CITCF-NY pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument, if any, to which the Seller, CITSF or CITCF-NY is
a party or by which either may be bound or to which the
property or assets of the Seller, CITSF or CITCF-NY are
subject (which contracts, indentures, mortgages, loan
agreements, notes, leases and other such instruments, if any,
have been identified by the Seller, CITSF or CITCF-NY to such
counsel), nor will such action result in any violation of the
provisions of the certificate of incorporation or by-laws of
the Seller, CITSF or CITCF-NY or, to the best of such
counsel's knowledge, any law, administrative regulation or
administrative or court decree of any state or federal courts,
regulatory bodies, other body, governmental entity or
arbitrator having jurisdiction over the Seller, CITSF or
CITCF-NY.
(vii) The Seller has duly authorized, executed and
delivered the written order to the Owner Trustee to execute
and deliver the Issuer Order to the Indenture Trustee.
(viii) The Seller has duly authorized, executed and
delivered the written order to the Owner Trustee to execute
and deliver the Certificates.
(ix) To the best of such counsel's knowledge, no
filing or registration with or notice to or consent, approval,
authorization or order of any New Jersey, New York or federal
court or governmental authority or agency is required for the
consummation by the Seller, CITSF or CITCF-NY of the
transactions contemplated by this Agreement, except such as
may be required under the Act or the Rules and Regulations, or
state securities or Blue Sky laws.
(x) There are no legal or governmental proceedings
pending to which the Seller, CITSF or CITCF-NY is a party or
of which any property of the Seller, CITSF or CITCF-NY is the
subject, and no such proceedings are known by such counsel to
be threatened or contemplated by governmental authorities or
threatened by others, (A) that are required to be disclosed in
the Registration Statement or (B)(1) asserting the invalidity
of all or part of any of the Basic Documents, (2) seeking to
prevent the issuance of the Notes or the Certificates, (3)
that could materially and adversely affect the Seller's,
CITSF's or CITCF-NY's obligations under any of the Basic
Documents or (4) seeking to affect adversely the federal or
state income tax attributes of the Securities.
(xi) Such counsel is familiar with CITSF's and
CITCF-NY's standard operating procedures relating to CITSF's
and CITCF-NY's acquisition of a perfected first priority
security interest in the boats financed by CITSF and
CITCF-NY's pursuant to marine installment sale contracts and
marine installment loan contracts and notes and U.S. Preferred
Ship Mortgages in the ordinary course of CITSF's and
CITCF-NY's business. Other than with respect to mechanic's and
materialmen's liens, assuming that CITSF's standard procedures
are followed with respect to the perfection of security
interests in the Financed Boats (and such counsel has no
reason to believe that either CITSF or CITCF-NY has not or
will not continue to follow its standard procedures in
connection with the perfection of security interests in the
Financed Boats), CITSF and CITCF-NY have acquired or will
acquire a perfected first priority security interest in the
Financed Boats.
(xii) The Contracts are chattel paper, as defined in
the UCC in the State of New Jersey.
(xiii) The form of assignment to be executed and
delivered by CITSF to the Seller pursuant to the Purchase
Agreement is sufficient in form and substance to convey to the
Seller all of CITSF's right, title and interest in and to the
Contracts and any security interests securing the Contracts.
When the Purchase Agreement has been duly executed and
delivered by all parties thereto, the assignment described in
the Purchase Agreement has been duly executed and delivered to
the Seller by CITSF, and the purchase price has been paid to
CITSF by the Seller in the manner specified in the Purchase
Agreement, all of CITSF's right, title and interest in and to
the Contracts and any security interests securing
the Contracts will have been conveyed to the Seller and the
Seller will be the holder of a valid, binding and enforceable
security interest in the Contracts.
(xiv) The form of assignment to be executed and
delivered by the Seller to the Owner Trustee pursuant to the
Sale and Servicing Agreement is sufficient in form and
substance to convey to the Owner Trustee all of the Seller's
right, title and interest in and to the Contracts and any
security interests securing the Contracts. When the Basic
Documents have each been duly executed and delivered by all
parties thereto, the assignment described in the Sale and
Servicing Agreement has been duly executed and delivered to
the Trust by the Seller, the purchase price therefor has been
paid to the Seller by the Trust in the manner specified in the
Sale and Servicing Agreement, and the Notes and the
Certificates have been duly executed and duly authenticated
and delivered by the Owner Trustee or the Indenture Trustee,
as applicable, to or upon the order of the Seller in
accordance with the Sale and Servicing Agreement, the
Indenture and the Trust Agreement, all of the Seller's right,
title and interest in and to the Contracts and any security
interests securing the Contracts will have been conveyed to
the Trust and the Trust will be the holder of a valid and
binding security interest in the Contracts.
(f) The Representative shall have received a written opinion
of [▇▇▇▇▇▇▇▇▇▇, Sandler, Kohl, ▇▇▇▇▇▇ and ▇▇▇▇▇▇], special local New
Jersey counsel for the Seller and CITSF, dated the Closing Date, in
form and substance satisfactory to the Representative and counsel for
the Underwriters, to the effect that:
(i)(A) If the transfer of the Contracts is deemed to
be the grant of a security interest, and not a true sale, (1)
to the extent that the Uniform Commercial Code as in effect in
the State of New Jersey (the "New Jersey UCC") applies to the
perfection of the Seller's security interests in the Contracts
and the proceeds thereof under Section 9-103 of the New Jersey
UCC, when the financing statements executed by CITSF as debtor
(the "First Step Financing Statements") have been duly
executed and delivered and filed or recorded, as appropriate,
in the office of the Secretary of State of New Jersey, such
security interests will be perfected and (2) to the extent
that the New Jersey UCC applies to the perfection of the
Trust's security interests in the Contracts and the proceeds
thereof under Section 9-103 of the New Jersey UCC, when the
First Step Financing Statements and the financing statements
executed by the Seller as "debtor" ("Second Step Financing
Statements") have been duly executed and delivered and filed
or recorded, as appropriate, in the office of the Secretary of
State of New Jersey, such security interests will be perfected
and (B) based solely on such counsel's review of those
Financing Statements, officer certificates and specified New
Jersey UCC search reports, the security interests of the Trust
in the Contracts are subject to no equal or prior security
interest under the New Jersey UCC; provided, however that (1)
for purposes of its opinions in this paragraph, such counsel
may assume that: (a) the Seller is the holder of valid,
binding and enforceable security
interests in the Contracts and the Trust is the holder of
valid, binding and enforceable security interests in the
Contracts; (b) the Contracts constitute "chattel paper," as
such term is defined in Section 9-105 of the New Jersey UCC;
(c) the New Jersey UCC governs the perfection of the security
interest in the Contracts, the priority of those security
interests and the classification of the Contracts; (d) the
chief executive office of each of the Company and the Seller
is, and during the past four months has been, in the State of
New Jersey; (e) neither CITSF, the Seller nor the Trust has
assigned, nor will assign, any Contract to a buyer who takes
possession of it in the ordinary course of its business and
who acts without knowledge that such Contract is subject to a
security interest; (f) the Contracts exist and each of CITSF
and the Seller, respectively, has rights in the Contracts; (g)
(i) no lien creditor has executed on or attached to the
Contracts prior to the perfection of the security interests of
the Seller or the Trust in the Contracts and the proceeds
thereof; and (ii) the Contracts are not subject to the rights
of the holder of a perfected "purchase money security
interest" (as such term is defined in Section 9-107 of the New
Jersey UCC); (h) no Contract, or the proceeds thereof,
constitutes proceeds of any property subject to the security
interest of a third party; (i) none of the proceeds of the
Contracts which constitute "securities" under Article 8 of the
New Jersey UCC are transferred to a bona fide purchaser (other
than the Indenture Trustee) under Section 8-302 of the New
Jersey UCC; (j) the Seller, the Indenture Trustee and the
Owner Trustee have and will maintain a list describing the
Contracts for inspection during normal business hours by
interested parties; (k) the underlying facts in the officer
certificates to be received by such counsel are correct; (l)
all financing statements or other notice of liens, other than
the financing statements, in which CITSF, the Seller or the
Trust is named as debtor were properly filed and indexed, that
the New Jersey UCC search reports have revealed all recorded
liens against CITSF and the Seller and that no filings or
notices covering CITSF or the Seller were made between the
dates last searched and reported on in the New Jersey UCC
search reports and the time of such financing statements, and
(m) from and after the date hereof CITSF, acting in a capacity
as servicer and custodian for the Trustee, will have taken,
and will maintain, exclusive possession of the Contracts; and
(2) such counsel need express no opinion: (a) regarding
perfection as to any government or governmental agency
(including without limitation the United States of America or
any State thereof or any agency or department of the United
States of America or any State thereof) of any security
interest in any Contracts with respect to which such
government or agency is obligated; (b) on the perfection of
any security interests in the collateral described in the
Contracts; (c) as to the priority of any perfected security
interests under the New Jersey UCC of any liens, claims or
other interests that do not require filing or similar action
to attach or that arise by operation of law against any claim
or lien in favor of the United States or any State or any
agency or instrumentality of the United States or any State
(including, without limitation, liens arising under the
federal tax laws or the Employment Retirement Income Security
Act of 1974, as amended) or against the rights of a "lien
creditor" (as defined in the New Jersey UCC); and (d) as to
the
effect of the laws of any other state that may govern the
perfection or priority of the security interest in the
Contracts by possession or other than by filing a financing
statement under the UCC; (3) such opinions may be subject to
the effect of (i) the limitations on the existence and
perfection of security interests in proceeds resulting from
the operation of Section 9-306 of the New Jersey UCC; (ii) the
limitations with respect to documents and instruments imposed
by Section 9-309 of the New Jersey UCC; (iii) bankers' liens,
rights of set-off and other rights of persons in possession of
money, instruments and proceeds constituting certificated or
uncertificated securities; and (iv) Section 552 of the
Bankruptcy Code with respect to any Contracts acquired by the
Seller or the Trust subsequent to the commencement of a case
by or against CITSF, the Seller or the Trust under the
Bankruptcy Code; (4) such counsel's opinions may be
inapplicable to any Subsequent Contracts unless, upon the
proper filing of New Jersey UCC financing statements
describing the Subsequent Contracts, (i) the assumptions,
qualifications and limitations in this letter shall be true as
to conditions then existing and as to the Subsequent
Contracts, (ii) there are no changes in law, and (iii) all
searches have been updated and reveal no liens against any of
the Subsequent Contracts; and (5) such counsel's opinion may
be further subject to the effect of general principles of
equity, regardless of whether such principles are considered
in a proceeding in equity or at law, as the same may be
applied in a proceeding seeking to enforce any obligation.
(ii) Solely insofar as the present laws of the State
of New Jersey and the Federal law of the United States of
America are concerned, in a properly presented and decided
case, a court would conclude that the transfer of the
Contracts and the proceeds thereof by CITSF to the Seller
constitute true sales of such Contracts and, assuming a court
reached that conclusion, in such a case a court would conclude
that the Contracts and the proceeds would not be considered
property of the estate of CITSF pursuant to Section 541 of the
Bankruptcy Code, and the Contracts and the proceeds thereof
would not be subject to the automatic stay pursuant to Section
362 of the Bankruptcy Code; provided, however, such counsel
need express no opinion (A) with respect to how long the
Seller could be denied possession of the Contracts before the
issues discussed in this paragraph are finally decided on
appeal or other review, (B) with respect to the availability
of a preliminary injunction or temporary restraining order
pursuant to the broad equitable powers granted to a bankruptcy
court and (C) as to the conveyance of any Subsequent Contracts
unless, upon the proper filing of UCC financing statements
describing the Subsequent Contracts, (1) the assumptions,
qualifications and limitations in such opinion shall be true
as to conditions then existing and (2) all searches have been
updated and reveal no liens against any of the Subsequent
Contracts.
(iii) Solely insofar as the present laws of the State
of New Jersey and the Federal law of the United States of
America are concerned, in a properly presented and decided
case, a court would conclude that the transfer of the
Contracts and the proceeds thereof by the Seller to the Trust
constitute true sales of such Contracts and, assuming a court
reached that conclusion, in such a case a court would conclude
that the Contracts and the proceeds would not be considered
property of the estate of the Seller pursuant to Section 541
of the Bankruptcy Code, and the Contracts and the proceeds
thereof would not be subject to the automatic stay pursuant to
Section 362 of the Bankruptcy Code; provided, however, such
counsel need express no opinion (A) with respect to how long
the Trust could be denied possession of the Contracts before
the issues discussed in this paragraph are finally decided on
appeal or other review, (B) with respect to the availability
of a preliminary injunction or temporary restraining order
pursuant to the broad equitable powers granted to a bankruptcy
court and (C) as to the conveyance of any Subsequent Contracts
unless, upon the proper filing of UCC financing statements
describing the Subsequent Contracts, (1) the assumptions,
qualifications and limitations in such opinion shall be true
as to conditions then existing and (2) all searches have been
updated and reveal no liens against any of the Subsequent
Contracts.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are
reasonably acceptable to counsel to the Underwriters. In rendering such
opinion, such counsel may state that they express no opinion as to the
laws of any jurisdiction other than the Federal law of the United
States of America and the laws of the State of New Jersey.
(g) The Representative shall have received a written opinion
of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel to the Seller, CITSF and
CITCF-NY, dated the Closing Date, in substantially the form set forth
below, with such changes therein as the Representative and counsel for
the Underwriters shall reasonably agree:
(i) When the Notes have been duly executed, delivered
and authenticated in accordance with the Indenture and
delivered and paid for pursuant to this Agreement, the Notes
will be validly issued, outstanding and entitled to the
benefits of the Indenture, except that (A) enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights generally and (B) enforcement may be limited
by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(ii) The Registration Statement became effective
under the Act as of ____________, ____ and, to the best of
such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof or any amendment thereto has been issued under the Act
and no proceeding for that purpose has been instituted or
threatened by the Commission.
(iii) The form of the Indenture has been qualified
under the Trust Indenture Act.
(iv) Neither the Trust Agreement nor the Sale and
Servicing Agreement need to be qualified under the Trust
Indenture Act. The Trust is not, and will not as a result of
the offer and sale of the Securities as contemplated in the
Prospectus and in this Agreement become, required to register
as an "investment company" under the Investment Company Act.
(v) The statements in the Prospectus under the
caption "The Notes," "The Certificates" and "The Purchase
Agreements and The Trust Documents" insofar as such statements
purport to summarize certain terms of the Notes, the
Certificates and the Basic Documents, present a fair summary
of such documents.
(vi) To the best of such counsel's knowledge, there
are no contracts or documents of the Seller which are required
to be filed as exhibits to the Registration Statement pursuant
to the Act or the Rules or Regulations which have not been so
filed.
(vii) The statements in the Prospectus under the
headings "Certain Federal Income Tax Consequences" and "ERISA
Considerations," to the extent that they constitute matters of
law or legal conclusions with respect thereto are correct in
all material respects.
(viii) The Registration Statement and the Prospectus
as of the date of this Agreement, and any amendment or
supplement thereto, as of its date, complied as to form in all
material respects with the requirements of the Act and the
applicable Rules and Regulations. Such counsel need express no
opinion with respect to the financial statements, the
exhibits, annexes and other financial, statistical, numerical
or portfolio data, economic conditions or financial condition
of the portfolio information included in the Registration
Statement, the Prospectus or any amendment or supplement
thereto.
Such counsel shall state that it has participated in
conferences with officers and representatives of the Seller, CITSF,
Counsel to CITSF and officers and representatives of the Underwriters,
at which conferences certain of the contents of the Registration
Statement and the Prospectus were discussed and, although such counsel
is not passing upon and does not assume any responsibility whatsoever
for, the factual accuracy, completeness or fairness of the statements
contained in the Registration Statement or Prospectus (except as stated
in Sections 6(g)(v) and 6(g)(vii) above) and has made no independent
check or verification thereof for the purpose of rendering this
opinion, on the basis of the foregoing (relying as to materiality to a
large extent upon the certificates of officers and other
representatives of the Seller and CITSF), no facts have come to their
attention that leads such counsel to believe that the Registration
Statement, when it became effective, contained any untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus on its date contained or on the
Closing Date contains,
any untrue statement of a material fact necessary in order to make the
statements therein, in 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.
(h) The Representative shall have received, in form and
substance satisfactory to the Representative and counsel for the
Underwriters an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel to
the Trust, dated the Closing Date, regarding the creation of a security
interest in the Collateral in favor of the Indenture Trustee on behalf
of the Noteholders to the extent that a security interest in such
Collateral can be created under Article 9 of the UCC as currently in
effect in the State of New York. Such opinion may contain such
assumptions, qualifications and limitations as are customary in
opinions of this type and as are reasonably acceptable to counsel to
the Underwriters. In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction other
than the Federal law of the United States of America and the laws of
the State of New York.
(i) The Representative shall have received an opinion of
[____________________], counsel for the Underwriters, dated the Closing
Date, with respect to the validity of the Securities and such other
related matters as the Representative shall require and the Seller
shall have furnished or caused to be furnished to such counsel such
documents as they may reasonably request for the purpose of enabling
them to pass upon such matters.
[(j) The Representative shall have received an opinion of
counsel to the Cash Collateral Depositor, dated the Closing Date, in
form and substance satisfactory to the Representative and counsel for
the Underwriters, to the effect that:
(i) The Cash Collateral Depositor is licensed to
maintain a branch in the State of New York and has full power
and authority to enter into, and to take all action required
of it, under the Cash Collateral Agreement.
(ii) The Cash Collateral Agreement has been duly
authorized, executed and delivered by the Cash Collateral
Depositor.
(iii) The Cash Collateral Agreement constitutes a
legal, valid and binding agreement of the Cash Collateral
Depositor, enforceable against the Cash Collateral Depositor
in accordance with its terms, except as enforceability thereof
may be limited by bankruptcy, insolvency, liquidation,
reorganization, moratorium or other similar laws affecting the
enforcement of rights of creditors against the Cash Collateral
Depositor generally, as such laws would apply in the event of
bankruptcy, insolvency, liquidation, receivership, or
reorganization or any moratorium or similar occurrence
affecting the Cash Collateral Depositor, and the application
of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or
law).]
(k) The Representative shall have received an opinion of
[____________________], counsel to the Indenture Trustee, dated the
Closing Date, in form and substance satisfactory to the Representative
and counsel for the Underwriters, to the effect that:
(i) The Indenture constitutes a legal, valid and
binding agreement of the Indenture Trustee, enforceable
against the Indenture Trustee in accordance with its terms,
except as enforceability thereof may be limited by bankruptcy,
insolvency, liquidation, reorganization, moratorium or other
similar laws affecting the enforcement of rights of creditors
against the Indenture Trustee generally, as such laws would
apply in the event of bankruptcy, insolvency, liquidation,
receivership, or reorganization or any moratorium or similar
occurrence affecting the Indenture Trustee, and the
application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or law).
(ii) The Notes have been duly authenticated and
delivered by the Indenture Trustee in accordance with the
terms of the Indenture.
(iii) he Indenture Trustee is a banking corporation
validly existing under the laws of the state of __________ and
has full power and authority to enter into, and to take all
action required of it, under the Indenture.
(iv) The Indenture has been duly authorized, executed
and delivered by the Indenture Trustee.
(l) The Representative shall have received an opinion of
[____________________], counsel to the Owner Trustee, dated the Closing
Date, in form and substance satisfactory to the Representative and
counsel for the Underwriters, to the effect that:
(i) The Owner Trustee is a banking corporation duly
incorporated and validly existing under the laws of the State
of __________.
(ii) The Owner Trustee has the full power and
authority to accept the office of owner trustee under the
Trust Agreement and to enter into and perform its obligations
under the Trust Agreement and the transactions contemplated
thereby.
(iii) The execution and delivery of the Trust
Agreement by the Owner Trustee and the performance by the
Owner Trustee of its obligations under the Trust Agreement
have been duly authorized by all necessary action of the Owner
Trustee and the Trust Agreement has been duly executed and
delivered by the Owner Trustee.
(iv) The Trust Agreement constitutes valid and
binding obligations of the Owner Trustee enforceable against
the Owner Trustee in accordance with its terms, except as the
enforceability thereof may be (a) limited by bankruptcy,
insolvency, reorganization, moratorium, liquidation or other
similar laws affecting the rights of creditors generally, and
(b) subject to general principals of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(v) The execution and delivery by the Owner Trustee
of the Trust Agreement and the transactions contemplated
thereby do not require any consent, approval or authorization
of, or any registration or filing with, any applicable
governmental authority of the State of Delaware which has not
been obtained or done.
(vi) Neither the consummation by the Owner Trustee of
the transactions contemplated in the Trust Agreement, nor the
fulfillment of the terms thereof by the Owner Trustee will
conflict with, result in a breach or violation of, or
constitute a default under the Article of Association, By-Laws
or other organizational documents of the Owner Trustee
(m) The Representative shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for the Trust,
dated the Closing Date, in form and substance satisfactory to the
Representative and counsel for the Underwriters, to the effect that:
(i) The Trust Agreement is the legal, valid and
binding agreement of the Owner Trustee and the Seller,
enforceable against the Owner Trustee and the Seller in
accordance with its terms subject to (i) applicable
bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent conveyance and similar laws
relating to and affecting the rights and remedies of creditors
generally, (ii) principles of equity (regardless of whether
considered and applied in a proceeding in equity or at law),
and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
(ii) The Certificate of Trust has been duly filed
with the Secretary of State of the State of Delaware. The
Trust has been duly formed and is validly existing as a
business trust under the Delaware Business Trust Act.
(iii) The Trust has the power and authority under the
Trust Agreement and the Delaware Business Trust Act to
execute, deliver and perform its obligations under the Trust
Agreement, the Indenture, the Cash Collateral Agreement, the
Sale and Servicing Agreement, the Notes and the Certificates,
and to issue the Notes and the Certificates.
(iv) The Trust has duly authorized and executed the
Trust Agreement, the Indenture, the Cash Collateral Agreement,
the Sale and Servicing Agreement, the Notes and the
Certificates.
(v) The Trust has the power under the Trust Agreement
and the Delaware Business Trust Act to pledge the Trust Estate
to the Indenture Trustee as security for the Notes.
(vi) The Certificates have been executed,
authenticated and delivered by the Owner Trustee upon the
order of the Seller in accordance with the Trust Agreement and
when delivered to and paid for pursuant to this Agreement, the
Certificates will be validly issued and outstanding, and the
holder of record of any such Certificates will be entitled to
the benefits accorded by the Trust Agreement subject to (i)
applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent conveyance and similar laws
relating to and affecting the rights and remedies of creditors
generally, (ii) principles of equity (regardless of whether
considered and applied in a proceeding in equity or at law),
and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
(vii) The Notes have been executed, authorized and
delivered by the Owner Trustee upon the order of the Seller in
accordance with the Trust Agreement and the Indenture.
(viii) To the extent that Article 9 of the Uniform
Commercial Code as in effect in the State of Delaware (the
"Delaware UCC") is applicable (without regard to conflicts of
laws principles), and assuming that the security interest
created by the Indenture in the Collateral has been duly
created and has attached, upon the filing of a UCC-1 financing
statement with the Secretary of State of the State of
Delaware, the Indenture Trustee will have a perfected security
interest in such Collateral and the proceeds thereof; and such
security interest will be prior to any other security interest
granted by the Trust that is perfected solely by the filing of
financing statements under the Delaware UCC, excluding
purchase
money security interests under ss. 9-312 of the Delaware UCC
and temporarily perfected security interests in proceeds under
ss. 9-306 of the Delaware UCC.
(ix) No re-filing or other action is necessary under
the Delaware UCC in the State of Delaware in order to maintain
the perfection of the security interest referenced above
except for the filing of continuation statements at five-year
intervals.
(x) Under ss. 3805(b) of the Delaware Business Trust
Act, no creditor of any Certificateholder shall have any right
to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of the Trust
except in accordance with the terms of the Trust Agreement
subject to (i) applicable bankruptcy, insolvency, moratorium,
receivership, reorganization, fraudulent conveyance and
similar laws relating to and affecting the rights and remedies
of creditors generally, (ii) principles of equity (regardless
of whether considered and applied in a proceeding in equity or
at law), and (iii) the effect of applicable public policy on
the enforceability of provisions relating to indemnification
or contribution.
(xi) Under ss. 3805(c) of the Delaware Business Trust
Act, and assuming that the Sale and Servicing Agreement
conveys good title to the Contracts to the Trust as a true
sale and not as a security arrangement, the Trust, rather than
the Certificateholders, is the owner of the Contracts subject
to (i) applicable bankruptcy, insolvency, moratorium,
receivership, reorganization, fraudulent conveyance and
similar laws relating to and affecting the rights and remedies
of creditors generally, (ii) principles of equity (regardless
of whether considered and applied in a proceeding in equity or
at law), and (iii) the effect of applicable public policy on
the enforceability of provisions relating to indemnification
or contribution.
(xii) The execution and delivery by the Owner Trustee
of the Trust Agreement and, on behalf of the Trust, of the
Indenture and the Sale and Servicing Agreement do not require
any consent, approval or authorization of, or any registration
or filing with, any governmental authority of the State of
Delaware, except for the filing of the certificate of Trust
with the Secretary of State.
(xiii) Neither the consummation by the Owner Trustee
of the transactions contemplated by the Trust Agreement or, on
behalf of the Trust, the transactions contemplated by the
Trust Agreement, Indenture and the Sale and Servicing
Agreement nor the fulfillment of the terms thereof by the
Owner Trustee will conflict with or result in a breach or
violation of any law of the State of Delaware.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are
reasonably acceptable to counsel to the Underwriters. In rendering such
opinion, such counsel may state that they express no opinion as to the
laws of any jurisdiction other than the Federal law of the United
States of America and the laws of the State of Delaware.
(q) The Notes shall have been rated "[___]" by ▇▇▇▇▇'▇ and
"[___]" by S&P, and the Certificates shall have been rated at least
"[__]" by ▇▇▇▇▇'▇ and "[__]" by S&P.
(r) The Representative shall have received copies of each
opinion of counsel delivered to either Rating Agency or the Cash
Collateral Depositor, together with a letter addressed to the
Representative, dated the Closing Date, to the effect that each
Underwriter may rely on each such opinion to the same extent as though
such opinion was addressed to each as of its date.
(s) The Representative shall have received evidence
satisfactory to it and counsel for the Underwriters that, on or before
the Closing Date, UCC-1 financing statements shall have been submitted
to the Trustee for filing in the appropriate filing offices reflecting
(1) the transfer of the interest in the Contracts and the proceeds
thereof (A) from CITCF-NY to CITSF, to the extent such Contracts have
been transferred to CITSF from CITCF-NY, (B) from CITSF to the Seller,
(C) from the Seller to the Owner Trustee, on behalf of the Trust, or
the Trust, as the case may be, and (2) the grant of the security
interest by the Trust in the Contracts and the proceeds thereof to the
Indenture Trustee.
(t) On the Closing Date, counsel for the Underwriters shall
have been furnished with such documents and opinions as they reasonably
may require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by the
Seller in connection with the issuance and sale of the Securities as
herein contemplated shall be in form and substance satisfactory to the
Representative and counsel for the Underwriters.
7. Indemnification and Contribution.
(a) CITSF will indemnify and hold each Underwriter harmless
against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or arise out
of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter
for any legal or
other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that (i)
CITSF will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity
with written information furnished to the Seller or CITSF by any
Underwriter through the Representative specifically for use therein it
being understood and agreed that the only such information furnished by
any Underwriter consists of the Underwriters' Information and (ii)
CITSF shall not, in connection with any one such action or separate but
substantially similar or related transactions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the reasonable fees and expenses of more than one separate firm of
attorneys for all such Underwriters, which firm shall be designated in
accordance with Section 7(c) hereof.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Seller and CITSF against any losses,
claims, damages or liabilities to which the Seller or CITSF may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus
or any amendment or supplement thereto, or any related preliminary
prospectus or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Seller or CITSF by such Underwriter through the
Representative specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Seller or CITSF in
connection with investigating or defending any such action or claim as
such expenses are incurred, it being understood and agreed that (i) the
only such information furnished by any Underwriter consists of the
following information contained in the Prospectus: (a) the last
paragraph at the bottom of the cover page concerning the terms of the
offering by the Underwriters, (b) the legend concerning over-allotments
and (c) the information contained under the caption "Underwriting" (the
"Underwriters' Information") and (ii) the Underwriters shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys for each
of the Seller and CITSF, which firm shall be designated in accordance
with Section 7(c) hereof.
(c) Promptly after receipt by an indemnified party under this
Section of written notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to
any indemnified party otherwise than under such subsection. In case any
such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that
it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and after acceptance by the
indemnified party of counsel, the indemnifying party will not be liable
to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional
release of such indemnified party from all liability on any claims that
are the subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above in such proportion as is appropriate to
reflect not only the relative benefits received by the Seller and CITSF
on the one hand and the Underwriters on the other from the offering of
the Securities but also the relative fault of the Seller and CITSF on
the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations.
The relative benefits received by the Seller and CITSF on the one hand
and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the
Securities (before deducting expenses) received by the Seller and CITSF
bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Seller, CITSF or
by the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to above
in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of CITSF under this Section shall be in
addition to any liability which the Seller or CITSF may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each director of the Seller or CITSF, to each officer of the Seller or
CITSF who has signed the Registration Statement and to each person, if
any, who controls the Seller or CITSF within the meaning of the Act.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Seller and CITSF or their respective officers and of the Underwriters set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation or statement as to the results thereof, made by
or on behalf of any Underwriter, the Seller, CITSF or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 9 or if for any reason the purchase of the
Securities by the Underwriters is not consummated, the Seller, CITSF and
CITCF-NY shall remain responsible for the expenses to be paid or reimbursed by
it pursuant to Section 5 hereof and the respective obligations of the Seller,
CITSF and the Underwriters pursuant to Section 7 hereof shall remain in effect.
If the purchase of the Securities by the Underwriters is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 9 or the occurrence of any event specified in clauses (iii), (iv) or
(v) of Section 6(e) hereof, the Seller and CITSF will reimburse the Underwriters
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Securities.
9. Failure to Purchase the Securities. If any Underwriter or
Underwriters default in their obligations to purchase the principal amount of
the Notes and/or the Certificates opposite such Underwriter's name on Schedule I
hereto and the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of the Securities, the Representative may make
arrangements satisfactory to the Seller and CITSF for the purchase of such Notes
or Certificates by other persons, including any of the Underwriters, but if no
such arrangements are made by the Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Notes and/or the Certificates that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Notes and/or the
Certificates with respect to such default or defaults exceeds 10% of the total
principal amount of the Securities and arrangements satisfactory to the
Representative, the Seller and CITSF for the purchase of such
Notes and/or Certificates by other persons are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Seller or CITSF, except as provided in Section
8. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter or Underwriters from liability for its default.
10. Notices. All communications hereunder will be in writing and, if
sent to the Representative or the Underwriters, will be mailed, delivered or
sent by facsimile transmission and confirmed to the Representative at
[____________________], Attention: [__________] (facsimile number
[______________]); 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, ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇, ▇▇., President (facsimile number (▇▇▇) ▇▇▇-▇▇▇▇); if sent to CIT, will be
mailed, delivered or sent by facsimile transmission and confirmed to it by The
CIT Group Holdings, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President and Chief Financial
Officer (facsimile number (▇▇▇) ▇▇▇-▇▇▇▇); 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., ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., President (facsimile number (▇▇▇) ▇▇▇-▇▇▇▇).
11. No Bankruptcy Petition. Each Underwriter agrees that, prior to the
date which is one year and one day after the payment in full of all securities
issued by the Seller or by a trust for which the Seller was the depositor or by
the Trust, which securities were rated by any nationally recognized statistical
rating organization, it will not institute against, or join any other person in
instituting against, the Seller or the Trust in any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings under
any Federal or state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the Underwriters, the Seller, CIT and CITSF and their respective
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligations hereunder.
13. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with the transactions described in this
Agreement, and any action taken by Representative under this Agreement will be
binding upon all the Underwriters.
14. Counterparts. This Agreement may be executed in any number of
counterparts each of which shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Agreement.
15. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to us a counterpart
hereof, whereupon it will become a binding agreement among the Seller, CITSF and
the several Underwriters in accordance with its terms.
Very truly yours,
THE CIT GROUP SECURITIZATION CORPORATION II
By: ________________________________________
Name:
Title:
THE CIT GROUP/SALES FINANCING, INC.
By: ________________________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written:
[____________________]
Acting on behalf of itself and as the
Representative of the several Underwriters
By:________________________________________
Name:
Title:
SCHEDULE I
Underwriter Initial Principal Amount of Notes
----------- ---------------------------------
$
$
TOTAL $
Underwriter Initial Principal Amount of Certificates
----------- ----------------------------------------
$
$
TOTAL $
SCHEDULE II
Locations of Chief Executive Offices and Principal Places of Business
The CIT Group Securitization Corporation II
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
The CIT Group/Sales Financing, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
The CIT Group/Consumer Finance, Inc. (NY)
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Locations of Records
The CIT Group Securitization Corporation II
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
The CIT Group/Sales Financing, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
The CIT Group/Consumer Finance, Inc. (NY)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
SCHEDULE III
Original Principal
Notes Amount Price Price Interest Rate
Class A-__ $ % $ %
Class A-__ $ % $ %
Total Price to Public: $
Total Price to Seller: $
Underwriting Discounts and Commissions: $
SCHEDULE IV
Original Principal Pass-Through
Certificates Amount Price Price Rate
Class A-__ $ % $ %
Total Price to Public: $
Total Price to Seller: $
Underwriting Discounts and Commissions: $