Exhibit 1.1
HOME EQUITY LOAN ASSET BACKED CERTIFICATES, SERIES 1998-1
THE CIT GROUP SECURITIZATION CORPORATION III
(DEPOSITOR)
July 31, 1998
UNDERWRITING AGREEMENT
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED,
as Representative of the
Several Underwriters (the "Representative"),
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. Introductory. The CIT Group Securitization Corporation III, a Delaware
corporation (the "Depositor") and a wholly-owned limited-purpose finance
subsidiary of The CIT Group, Inc., a Delaware corporation ("CIT"), and CIT
(collectively, the "Registrants") have previously filed a registration statement
with the Securities and Exchange Commission relating to the issuance and sale
from time to time of up to $1,000,000,000 of home equity loan asset backed
certificates, all or a portion of which may be supported by a limited guarantee
of CIT. Each of such certificates and the limited guarantee of CIT are
registered under the registration statement referred to in Section 2(a)
(collectively, the "Registered Securities") and the Depositor has authorized the
issuance and sale to the Underwriters of the Home Equity Loan Asset Backed
Certificates, Series 1998-1 listed on Schedule I hereto (the "Offered
Certificates," and, together with the Class B-2, Class B-3, Class B-4, Class
IO-X1, Class IO-X2 and Class R-1 and Class R-2 Certificates, the "Certificates")
evidencing interests in a pool (the "Mortgage Loan Pool") of certain home equity
loans (the "Mortgage Loans"). The Certificates will be issued under a Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement") to be dated as
of July 1, 1998 among the Depositor, The CIT Group/Consumer Finance, Inc.
("CITCF" or "Master Servicer") a Delaware corporation and a wholly-owned
subsidiary of CIT and The Bank of New York, as trustee (the "Trustee"). The
Certificates will evidence specified interests in the Mortgage Loans and certain
other property held in trust with respect to such Certificates. The Mortgage
Loans and certain other assets of a Trust (the "Trust") will be sold by CITCF to
the Depositor pursuant to a Purchase Agreement (the "Purchase Agreement") to be
dated as of July 1, 1998 between CITCF and the Depositor and, in turn, by the
Depositor to the Trust pursuant to the Pooling and Servicing Agreement. Certain
of the Mortgage Loans and other property sold by CITCF to the Depositor will
first be purchased by CITCF from (i) The CIT Group/Consumer Finance, Inc. (NY)
("CITCF-NY") pursuant to a Purchase Agreement to be dated as of July 1, 1998
(the "CITCF-NY Sale Agreement") between CITCF-NY and CITCF and (ii) The CIT
Group/Sales Financing, Inc. ("CITSF") pursuant to a Purchase Agreement to be
dated as of July 1, 1998 (the "CITSF Sale Agreement") between CITSF and CITCF.
[CITCF will enter into a subservicing agreement with CITSF (the "Sub-Servicer")
dated as of July 1, 1998 (the "Subservicing Agreement") pursuant to which CITSF
will perform certain of the servicing responsibilities of the Master Servicer
under the Pooling and Servicing Agreement.
The firm or firms listed on the attached Schedule I hereto which agreed to
purchase the Offered Certificates are hereinafter referred to as the
Underwriters (the "Underwriters") of such Offered Certificates, and the
representative of the Underwriters to whom this Underwriting Agreement (the
"Agreement") is addressed is hereinafter referred to as the Representative (the
"Representative").
Capitalized terms used herein and not otherwise defined shall have the
meanings given them in the Pooling and Servicing Agreement.
2. Representations and Warranties of the Depositor, CITCF and CIT. Each of
the Depositor, and CITCF, jointly and severally and CIT with respect to the
representations and warranties appearing in clauses (a), (b), (c)(i), (d),
(e)(ii) and (j)(ii) below, represents and warrants to, and agrees with, the
Underwriters, as of the date hereof and as of the date of the purchase and sale
of the Offered Certificates pursuant to Section 3 hereof (the "Closing Date")
that:
(a) A registration statement on Form S-3 (No. 333-22283), including a
prospectus, relating to the Registered Securities has been filed with the
Securities and Exchange Commission ("Commission") and, as amended, has become
effective. Such registration statement, as amended as of the date of this
Agreement, is hereinafter referred to as the "Registration Statement," and the
prospectus included in such Registration Statement, as supplemented to reflect
the terms of the Offered Certificates as first filed with the Commission after
the date of this Agreement pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Securities Act of 1933, as amended ("Act"), including all
material incorporated by reference therein, is hereinafter referred to as the
"Prospectus." A "preliminary prospectus" means any form of prospectus, including
any prospectus supplement, relating to the Offered Certificates used prior to
the date of this Agreement that is subject to completion.
(b) On the effective date of the registration statement relating to the
Registered Securities, such registration statement conformed in all respects to
the requirements of the Act and the rules and regulations of the Commission
promulgated under the Act ("Rules and Regulations") and did not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and on the date of this Agreement the Registration Statement and the preliminary
prospectus conform, and at the time of the filing of the Prospectus in
accordance with Rule 424(b), the Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents include, or will include any untrue
statement of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, except that the foregoing does not apply to statements in or
omissions from any of such
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documents based upon (i) written information furnished to the Depositor by any
Underwriter through the Representative specifically for use therein, it being
understood that the only such information consists of the Underwriters'
Information (as defined in Section 8(a)) or (ii) the Underwriter Derived
Information (as defined in Section 7 below) contained in the Current Report (as
defined in Section 5(m) below) or in any amendment thereof or supplement
thereto, incorporated by reference in such Registration Statement or such
Prospectus (or any amendment thereof or supplement thereto). The Depositor and
CITCF acknowledge that any information furnished by any of the Underwriters
specifically for use in the Registration Statement, any preliminary prospectus
or the Prospectus is the Underwriters' Information (as defined in Section 8(a)).
(c) (i) CIT meets the requirements for use of Form S-3 under the Act and
(ii) the Depositor meets the requirements for use of Form S-3 under the Act.
(d) The documents incorporated by reference in the Registration Statement
and Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the "1934
Act"), and the rules and regulations of the Commission thereunder.
(e) Each of the Depositor, CITCF and CITSF have been duly organized and
are validly existing as corporations in good standing under the laws of the
State of Delaware. CITCF-NY has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of New York. Each of
the Depositor, CITCF, CITSF and CITCF-NY have corporate power and authority to
own, lease and operate their respective properties and conduct their respective
businesses as described or incorporated in the Prospectus and to enter into and
perform their obligations under each of the Basic Documents (as defined below)
to which it is a party; and each of the Depositor, CITCF, CITSF and CITCF-NY is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on its respective
business, properties, assets, or condition (financial or other) or on its
ability to perform its obligations under any of the Basic Documents to which it
is a party and (ii) CIT has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and is in
good standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such qualification
and in which the failure so to qualify would have a material adverse effect on
its respective business, properties, assets, or condition (financial or other).
"Basic Documents" means this Agreement, the Pooling and Servicing Agreement, the
Subservicing Agreement, the Purchase Agreement, the CITCF-NY Sale Agreement, the
CITSF Sale Agreement and the Certificate Depository Agreement.
(f) The Depositor is not in violation of its certificate of incorporation
or by-laws or in default in the performance or observance of any material
obligation, agreement, 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
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business of the Depositor or which might materially and adversely affect the
properties or assets thereof or the ability to perform its obligations under any
of the Basic Documents to which it is a party.
(g) None of CITCF, CITSF or CITCF-NY is in violation of its certificate of
incorporation or by-laws or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any material
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which it is a party or by which it or its respective properties may be bound,
which default might result in any material adverse change in the financial
condition, earnings, affairs or business of any of CITCF, CITSF or CITCF-NY or
which might materially and adversely affect the properties or assets thereof or
their ability to perform its obligations under any of the Basic Documents to
which it is a party.
(h) The execution and delivery by the Depositor on the Closing Date of the
Basic Documents to which it is a party and the performance of its obligations
thereunder will be within the corporate power of the Depositor and duly
authorized by all necessary corporate action on the part of the Depositor on and
as of the Closing Date; and neither the issuance and sale of the Offered
Certificates to the Underwriters, nor the execution and delivery by the
Depositor of the Basic Documents to which it is a party, nor the consummation by
the Depositor of the transactions therein contemplated, nor compliance by the
Depositor with the provisions hereof or thereof, will materially conflict with
or result in a material breach of, or constitute a material default under, any
of the provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Depositor or its properties or the certificate of
incorporation or by-laws of the Depositor or any of the provisions of any
indenture, mortgage, contract or other instrument to which the Depositor is a
party or by which the Depositor is bound or result in the creation or imposition
of any lien, charge or encumbrance upon any of its property pursuant to the
terms of any such indenture, mortgage, contract or other instrument.
(i) The execution and delivery by each of CITCF, CITSF and CITCF-NY on and
as of the Closing Date of any of the Basic Documents to which it is a party and
the performance of its obligations thereunder, will be within the corporate
power of each of CITCF, CITSF and CITCF-NY and duly authorized by all necessary
corporate action on the part of each of CITCF, CITSF and CITCF-NY on and as of
the Closing Date; and neither the issuance and sale of the Offered Certificates
to the Underwriters, nor the execution and delivery by CITCF, CITSF and CITCF-NY
of any of the Basic Documents to which it is a party, nor the consummation by
CITCF, CITSF and CITCF-NY of the transactions therein contemplated, nor
compliance by CITCF, CITSF and CITCF-NY with the provisions hereof or thereof,
will materially conflict with or result in a material breach of, or constitute a
material default under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on CITCF, CITSF or CITCF-NY or
their respective properties or the certificate of incorporation or by-laws of
CITCF, CITSF or CITCF-NY, or any of the provisions of any material indenture,
mortgage, contract or other instrument to which CITCF, CITSF or CITCF-NY is a
party or by which CITCF, CITSF or CITCF-NY is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of their respective
property pursuant to the terms of any such material indenture, mortgage,
contract or other instrument.
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(j) (i) This Agreement has been duly authorized, executed and delivered by
each of the Depositor and CITCF, and it constitutes a legal, valid and binding
instrument enforceable against each of the Depositor and CITCF in accordance
with its terms, subject (x) to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors' rights
generally, (y) as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law) and (z) as
to enforceability with respect to rights of indemnity thereunder, to limitations
of public policy under applicable securities laws and (ii) this Agreement has
been duly authorized, executed and delivered by CIT, and it constitutes a legal,
valid and binding instrument enforceable against CIT in accordance with its
terms, subject (x) to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally, (y) as
to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (z) as to
enforceability with respect to rights of indemnity thereunder, to limitations of
public policy under applicable securities laws.
(k) The Pooling and Servicing Agreement, the Subservicing Agreement and
the Purchase Agreement when executed and delivered on the Closing Date and, in
the case of the Pooling and Servicing Agreement when executed and delivered by
the Trustee, will be duly authorized, executed and delivered by each of the
Depositor, CITCF and CITSF, and each will constitute a legal, valid and binding
instrument enforceable against each of the Depositor, CITCF and CITSF in
accordance with its terms, subject (i) to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors' rights
generally and (ii) as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
(l) The Offered Certificates, when duly and validly authorized by the
Depositor, and, when executed and authenticated as specified in the Pooling and
Servicing Agreement, will be validly issued and outstanding and will be entitled
to the benefits of the Pooling and Servicing Agreement.
(m) No filing or registration with, notice to or consent, approval,
authorization or order of any court or governmental authority or agency is
required for the consummation by any of the Depositor, CITCF, CITSF and CITCF-NY
of the transactions contemplated by any of the Basic Documents to which it is a
party, except such as may be required under the Act, the Rules and Regulations,
or state securities or Blue Sky laws or such other filings, registrations,
notices, consents, approvals, authorizations, orders or permits as have been
obtained.
(n) The Depositor, CITCF, CITSF and CITCF-NY each possess all material
licenses, certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
businesses now operated by them and as described in the Prospectus, other than
such licenses, certificates, authorities or permits the failure of which to
possess would not have a material adverse effect on the interests of
Certificateholders under the Pooling and Servicing Agreement and neither the
Depositor, CITCF, CITSF nor CITCF-NY have received any notice of proceedings
relating to the revocation or modification of any such license, certificate,
authority or permit which, singly or in the
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aggregate, if the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the conduct of the business, operations,
financial condition or income of any of the Depositor, CITCF, CITSF or CITCF-NY
or their ability to perform their respective obligations under any of the Basic
Documents to which it is a party.
(o) As of the Closing Date, the Mortgage Loans and related property will
have been duly and validly assigned to the Trustee in accordance with the Basic
Documents; and when such assignment is effected, a duly and validly perfected
transfer of all such Mortgage Loans will have occurred, subject to no prior
lien, mortgage, security interest, pledge, charge or other encumbrance created
by the Depositor, CITCF, CITSF or CITCF-NY.
(p) As of the Closing Date, each of the Mortgage Loans will meet the
eligibility criteria described in the Prospectus.
(q) The chief executive office of each of the Depositor, CITCF, CITSF and
CITCF-NY is listed opposite its name on Schedule II hereto, which office is the
place where it is "located" for the purposes of Section 9-103(3)(d) of the
Uniform Commercial Code as in effect in the State of New York.
(r) Except as disclosed or incorporated by reference in the Prospectus,
since the date of the latest audited financial statements of CIT included or
incorporated by reference in the Prospectus there has been no material adverse
change, nor any development or event which is reasonably likely to result in a
material adverse change, in the condition (financial or other), business,
properties or results of operations of CIT and its subsidiaries taken as a
whole.
(s) Neither the Depositor, nor CITCF nor the Trust Fund created by the
Pooling and Servicing Agreement will be subject to registration as an
"investment company" under the Investment Company Act of 1940, as amended (the
"1940 Act").
(t) In connection with the offering of the Offered Certificates in the
State of Florida, the Depositor hereby certifies that they have complied with
all provisions of Section 5.17.075 of the Florida Securities and Investor
Protection Act.
(u) As of the Closing Date, each of the respective representations and
warranties of the Depositor, CITCF, CITSF and CITCF-NY set forth in the Basic
Documents will be true and correct, and the Underwriters may rely on such
representations and warranties as if they were set forth herein in full.
(v) The Depositor has filed the preliminary prospectus supplement relating
to the Offered Certificates pursuant to and in accordance with Rule 424(b).
3. Purchase, Sale and Delivery of Offered Certificates. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Depositor agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Depositor, the aggregate principal amounts of the Class of Offered
Certificates set forth opposite the name of such Underwriters in Schedule
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I hereto at a purchase price equal to the "Price $" specified for such Class of
Offered Certificates opposite the name of such Underwriter on Schedule I hereto
with respect to such Class of Offered Certificates.
Against payment of the purchase price by wire transfer of immediately
available funds to the Depositor, or to such bank as may be designated by the
Depositor, the Depositor will deliver the Offered Certificates to the
Representative, for the account of the Underwriters, at the office of ▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on August 10, 1998
at 10:00 a.m., New York City time, or at such other time not later than seven
full business days thereafter as the Representative and the Depositor determine,
such time being herein referred to as the "Closing Date." The Offered
Certificates to be so delivered will be initially represented by one or more
Offered Certificates registered in the name of Cede & Co., the nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of the
Offered Certificates will be represented by book entries on the records of DTC
and participating members thereof. Definitive Certificates will be available
only under the limited circumstances set forth in the Pooling and Servicing
Agreement. The certificates evidencing the Offered Certificates will be made
available for checking and packaging at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Certificates for sale to the public as
set forth in the Prospectus.
5. Covenants of the Depositor and CITCF. Each of the Depositor and CITCF,
jointly and severally, covenants and agrees with the several Underwriters that:
(a) The Depositor will file the Prospectus, properly completed, with the
Commission pursuant to and in accordance with subparagraph (2) (or, if
applicable and if consented to by the Representative, which consent shall not be
unreasonably withheld, subparagraph (5)) of Rule 424(b) no later than the second
business day following the earlier of the date of the determination of the
offering price or the date it is first used. The Depositor will advise the
Representative promptly of any such filing pursuant to Rule 424(b).
(b) The Depositor will advise the Representative promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus, and will
not effect any such amendment or supplementation without the Representative's
consent which consent shall not be unreasonably withheld; and the Depositor will
also advise the Representative promptly of any amendment or supplementation of
the Registration Statement or the Prospectus and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) The Depositor will arrange for the qualification of the Offered
Certificates for offering and sale under the securities laws of such
jurisdictions in the United States as the Representative may reasonably
designate and will continue such qualifications in effect so long as necessary
under such laws for the distribution of such Offered Certificates, provided that
in connection therewith the Depositor shall not be required to qualify as a
foreign corporation to do
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business nor become subject to service of process generally, but only to the
extent required for such qualification, in any jurisdiction in which it is not
currently so qualified.
(d) If, at any time when a prospectus relating to the Offered Certificates
is required to be delivered by law in connection with sales by any Underwriter
or dealer, either (i) any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or (ii) for any other reason it shall be necessary to
amend or supplement the Prospectus to comply with the Act, the Depositor will
promptly notify the Representative and will promptly prepare and file with the
Commission, at their own expense, an amendment or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance. Neither
the consent of the Representative to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 6 hereof.
(e) The Depositor will timely prepare and file all periodic reports
required to be filed pursuant to Section 15(d) of the 1934 Act as interpreted by
the Commission through certain No-Action Letters, on behalf of the Trust, with
the Commission until no longer required to do so as permitted by Section 15(d)
of the 1934 Act.
(f) The Depositor will furnish to each of the Underwriters copies of the
Registration Statement (two of which will be signed and include all exhibits),
each related preliminary prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as the Representative may from time to time reasonably request.
(g) So long as any of the Offered Certificates are outstanding, the
Depositor or CITCF, as the case may be, will furnish to the Representative
copies of all written reports or other written communications (financial or
otherwise) furnished or made available to Certificateholders, and deliver to the
Representative during such same period, (i) as soon as they are available,
copies of any reports and financial statements filed by or on behalf of the
Trust by the Registrants with the Commission pursuant to the 1934 Act and (ii)
such additional information concerning the Depositor or CITCF (relating to the
Mortgage Loans, the servicing thereof, the ability of CITCF to act as Master
Servicer or the ability of CITSF to act as Sub-Servicer), the Offered
Certificates or the Trust as the Representative may reasonably request from time
to time.
(h) Whether or not the transactions contemplated by this Agreement are
consummated, the Depositor and CITCF will pay or cause to be paid all costs and
expenses incident to the performance of their respective obligations hereunder,
including (i) the preparation, issuance and delivery of the Offered
Certificates, (ii) any fees charged by ▇▇▇▇▇'▇ 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 Offered Certificates, (iii) the expenses
incurred in printing,
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reproducing and distributing the registration statement as filed, the
Registration Statement, preliminary prospectuses and the Prospectus (including
any amendments and supplements thereto required pursuant to Section 5(d)
hereof), (iv) the fees and disbursements of counsel to the Depositor, and CITCF
and the independent public accountants of the Depositor, (v) the fees and
disbursements of the Trustee and its counsel, (vi) the fees of DTC in connection
with the book-entry registration of the Offered Certificates, (vii) the
reasonable expenses of the Representative including the reasonable fees and
disbursements of its counsel, in connection with the initial qualification of
the Offered Certificates for sale in the jurisdictions that the Representative
may designate pursuant to Section 5(c) hereof and in connection with the
preparation of any blue sky survey and legal investment survey and (viii) the
printing and delivery to the Underwriters, in such quantities as the
Underwriters may reasonably request, of copies of the Basic Documents. Subject
to Section 9 hereof, the Underwriters shall be responsible for their own costs
and expenses, including the fees and expenses of their counsel (other than the
reasonable expenses of the Representative including the reasonable fees and
disbursements of its counsel, in connection with the initial qualification of
the Offered Certificates for sale in the jurisdictions that the Representative
may designate pursuant to Section 5(c) hereof and in connection with the
preparation of any blue sky survey and legal investment survey).
(i) On or before the Closing Date, the Depositor, CITCF, CITSF and
CITCF-NY shall cause each of their respective books and records (including any
computer records) relating to the Mortgage Loans to be marked to show the
Trust's absolute ownership of the Mortgage Loans, and from and after the Closing
Date neither the Depositor, CITCF, as Master Servicer, nor CITSF, as
Sub-Servicer, shall take any action inconsistent with the Trust's ownership of
such Mortgage Loans, other than as permitted by the Pooling and Servicing
Agreement.
(j) Until the retirement of the Offered Certificates, or until such time
as the Underwriters shall cease to maintain a secondary market in the Offered
Certificates, whichever occurs first, the Depositor or CITCF will deliver to the
Representative the certified public accountants' annual statements of compliance
furnished to the Trustee pursuant to the Pooling and Servicing Agreement, as
soon as such statements are furnished to the Trustee.
(k) To the extent, if any, that either of the ratings provided with
respect to the Offered Certificates by either Rating Agency is conditional upon
the furnishing of documents or the taking of any other actions by the Depositor,
CITCF, CITSF or CITCF-NY, as the case may be, shall furnish such documents and
take any such other actions as may be required to satisfy such conditions. A
copy of such document shall be provided to the Representative at the time it is
delivered to the Rating Agencies.
(l) The Depositor will prepare, or cause to be prepared, and file, or
cause to be filed, a timely election to treat the Mortgage Loan Pool as a "real
estate mortgage investment conduit" ("REMIC") as such terms defined in the
Internal Revenue Code of 1986, as amended (the "Code"), for Federal income tax
purposes.
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(m) Provided that the Depositor has received the letter from KPMG Peat
Marwick LLP, described in Section 7(a) relating to the Computational Materials,
the Depositor will cause such Computational Materials (as defined in Section 7
below) with respect to the Offered Certificates which are delivered to the
Depositor as provided in Section 7 below to be filed with the Commission on a
Current Report on Form 8-K (the "Current Report") not later than the date on
which a prospectus supplement relating to the Offered Certificates is available
for distribution to investors.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Offered Certificates will
be subject to the accuracy of the representations and warranties on the part of
the Depositor, CITCF, CIT and CITSF, and contained or incorporated herein, to
the accuracy of the statements of officers of the Depositor, CITCF, CIT and
CITSF made pursuant to the provisions hereof, to the performance by the
Depositor, CITCF, CIT and CITSF of its obligations hereunder and to the
following additional conditions precedent:
(a) (i) On the date of this Agreement, the Representative and the
Depositor shall have received a draft of a letter, dated the date of delivery
thereof, of KPMG Peat Marwick LLP confirming that they are independent public
accountants with respect to the Depositor and CITCF within the meaning of the
Act and the Rules and Regulations, substantially in the form of the draft to
which the Representative has previously agreed and otherwise in form and
substance satisfactory to the Representative and counsel for the Underwriters
and (ii) on the Closing Date, a letter, dated the date of delivery thereof, of
KPMG Peat Marwick LLP confirming that they are independent public accountants
with respect to the Depositor and CITCF within the meaning of the Act and the
Rules and Regulations, consistent with the letter delivered pursuant to clause
(i) above and otherwise in form and substance satisfactory to the Representative
and counsel for the Underwriters.
(b) The Prospectus shall have been filed with the Commission in accordance
with the Rules and Regulations and Section 5(a) hereof. On or prior to the
Closing Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Registrants, shall be contemplated
by the Commission.
(c) The Representative shall have received an officer's certificate, dated
the Closing Date, executed by any two of the President, any Vice President, the
principal financial or the principal accounting officer of (i) the Depositor
representing and warranting that, as of the Closing Date, to the best of each
such officer's knowledge after reasonable investigation, the representations and
warranties of the Depositor in this Agreement and the other Basic Documents to
which it is a party are true and correct, that the Depositor has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder or thereunder at or prior to the Closing Date, that no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or, to the best of
their knowledge, are contemplated by the Commission, (ii) CITSF in which such
officers shall state that, to the best of each such officer's knowledge after
reasonable
-10-
investigation, the representations and warranties of CITSF in the Basic
Documents to which it is a party are true and correct and that CITSF has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder or thereunder at or prior to the Closing Date,
(iii) CITCF in which such officers shall state that, to the best of each such
officer's knowledge after reasonable investigation, the representations and
warranties of CITCF in this Agreement and the other Basic Documents to which it
is a party are true and correct and that CITCF has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder
or thereunder at or prior to the Closing Date and (iv) CIT representing and
warranting that, as of the Closing Date, to the best of such officer's knowledge
after reasonable investigation, the representations and warranties of CIT in
this Agreement are true and correct, provided that the officer's certificate
from CIT may be signed by only one officer.
(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Trust, the Depositor, CITCF, CITSF or CITCF-NY which, in the judgment of the
Representative, materially impairs the investment quality of the Offered
Certificates or makes it impractical or inadvisable to proceed with completion
of the sale of and payment for the Offered Certificates; (ii) any downgrading in
the rating of any debt securities of CIT, CITCF or CITSF or any of their direct
or indirect subsidiaries by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any such debt securities (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange or any setting of minimum
prices for trading on such exchange; (iv) any banking moratorium declared by
Federal, New Jersey or New York authorities; or (v) any outbreak or escalation
of major hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international calamity or
emergency if, in the judgment of the Representative, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Offered Certificates.
(e) The Representative shall have received a written opinion of in-house
counsel to the Depositor, CITCF, CITSF and CITCF-NY, or other counsel
satisfactory to the Representative in its reasonable judgment, dated the Closing
Date, in substantially the form set forth below, with such changes therein as
the Representative and counsel for the Underwriters shall reasonably agree:
(i) The Depositor, CITCF and CITSF have each been duly organized and
are validly existing as corporations in good standing under the laws of
the State of Delaware. CITCF-NY has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
New York.
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(ii) The Depositor, CITCF, CITSF and CITCF-NY each have the
corporate power and corporate authority to carry on their respective
businesses as described in the Prospectus and to own and operate their
respective properties in connection therewith.
(iii) The Depositor, CITCF, CITSF and CITCF-NY each has the
corporate power to own its assets and to transact the business in which it
is currently engaged and to perform their respective obligations under
each of the Basic Documents to which it is a party. The Depositor, CITCF,
CITSF and CITCF-NY are each qualified to do business as a foreign
corporation and each is in good standing in each jurisdiction in which the
character of the business transacted by it or properties owned or leased
by it requires such qualification and in which the failure so to qualify
would have a material adverse effect on the business, properties, assets,
or condition (financial or other) of the Depositor, CITCF, CITSF or
CITCF-NY, respectively or on their ability to perform their respective
obligations under the Basic Documents.
(iv) This Agreement has been duly authorized, executed and delivered
by each of the Depositor and CITCF, and is a valid and binding obligation
of each of the Depositor and CITCF enforceable against each of the
Depositor and CITCF in accordance with its terms, except that (A) such
enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, (B) such enforcement may be limited by
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law), and (C) the enforceability as to
rights to indemnity thereunder may be limited under applicable law.
(v) Each of the Basic Documents to which the Depositor, CITCF, CITSF
or CITCF-NY is a party has been duly authorized, executed and delivered by
each of the Depositor, CITCF, CITSF and CITCF-NY, and each constitutes a
valid and binding obligation of, each of the Depositor, CITCF, CITSF and
CITCF-NY, enforceable against each of the Depositor, CITCF, CITSF and
CITCF-NY in accordance with its terms, except that (A) such enforcement
may be subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally, (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.
(vi) The execution and delivery by each of the Depositor, CITCF,
CITSF and CITCF-NY of each of the Basic Documents to which it is a party,
the performance of their respective obligations thereunder and the signing
of the Registration Statement by the Depositor are within the corporate
power of the Depositor, CITCF, CITSF and CITCF-NY, as applicable, and have
been duly authorized by all necessary corporate action on the part of the
Depositor, CITCF, CITSF and CITCF-NY, as applicable; and neither the issue
and sale of the Offered Certificates, nor the consummation of the
transactions contemplated by the Basic Documents nor the fulfillment of
the terms
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thereof will, to the best of such counsel's actual knowledge, conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or asset of the Depositor, CITCF, CITSF or CITCF-NY pursuant to
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument, if any, to which the Depositor, CITCF, CITSF or CITCF-NY is a
party or by which either may be bound or to which the property or assets
of the Depositor, CITCF, CITSF or CITCF-NY are subject (but only as to
contracts, indentures, mortgages, loan agreements, notes, leases and other
such instruments which have been identified by the Depositor, CITCF, CITSF
or CITCF-NY to such counsel), nor will such action result in any violation
of the provisions of the certificate of incorporation or by-laws of the
Depositor, CITCF, CITSF or CITCF-NY or, to the best of such counsel's
actual knowledge, any law, administrative regulation or administrative or
court decree of any state or federal courts, regulatory bodies, other
body, governmental entity or arbitrator having jurisdiction over the
Depositor, CITCF, CITSF or CITCF-NY.
(vii) The Depositor has duly authorized and executed the written
order to the Trustee to execute and deliver the Offered Certificates.
(viii) To the best of such counsel's actual knowledge, no filing or
registration with or notice to or consent, approval, authorization or
order of any New Jersey, New York or federal court or governmental
authority or agency is required for the consummation by the Depositor,
CITCF, CITSF or CITCF-NY of the transactions contemplated by this
Agreement, except such as may be required under the Act or the Rules and
Regulations, or state securities or Blue Sky laws or such other filings,
registrations, notices, consents, approvals, authorizations, orders or
permits as have been obtained.
(ix) There are no legal or governmental proceedings pending to which
the Depositor, CITCF, CITSF or CITCF-NY is a party or of which any
property of the Depositor, CITCF, CITSF or CITCF-NY is the subject, and no
such proceedings are known by such counsel to be threatened or
contemplated by governmental authorities or threatened by others, (A) that
are required to be disclosed in the Registration Statement and are not
disclosed therein or (B)(1) asserting the invalidity of all or part of any
of the Basic Documents, (2) seeking to prevent the issuance of the Offered
Certificates, (3) that could materially and adversely affect the
Depositor's, CITCF's, CITSF's or CITCF-NY's obligations under any of the
Basic Documents or (4) seeking to affect adversely the federal or state
income tax attributes of the Offered Certificates.
(x) Such counsel is familiar with CITCF's, CITSF's's and CITCF-NY's
standard operating procedures relating to CITCF's, CITSF's's and
CITCF-NY's acquisition of a duly recorded mortgage, deed of trust or
similar interest (a "mortgage") against homes financed by CITCF, CITSF and
CITCF-NY pursuant to home equity loans in the ordinary course of CITCF's,
CITSF's's and CITCF-NY's business. Assuming that CITCF's standard
procedures are followed with respect to the acquisition and recording of
mortgages in the homes securing the Mortgage Loans (the "Mortgaged Homes")
(and
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such counsel has no reason to believe that any of CITCF, CITSF or CITCF-NY
has not or will not continue to follow its standard procedures in
connection with the acquisition and recording of mortgages in the
Mortgaged Homes), CITCF, CITSF and CITCF-NY have recorded or will record a
mortgage against the applicable Mortgaged Homes.
(xi) The CITCF-NY Sale Agreement is sufficient in form and substance
to convey to CITCF all of CITCF-NY's right, title and interest in and to
the related Mortgage Loans. When the CITCF-NY Sale Agreement has been duly
executed and delivered by all parties thereto, and the purchase price has
been paid to CITCF-NY by CITCF in the manner specified in the CITCF-NY
Sale Agreement, all of CITCF-NY's right, title and interest in and to the
related Mortgage Loans will have been conveyed to CITCF, except as such
interest in the related Mortgaged Homes may be limited by the absence of a
duly recorded mortgage assignment.
(xii) The CITSF Sale Agreement is sufficient in form and substance
to convey to CITCF all of CITSF's right, title and interest in and to the
related Mortgage Loans. When the CITSF Sale Agreement has been duly
executed and delivered by all parties thereto, and the purchase price has
been paid to CITSF by CITCF in the manner specified in the CITSF Sale
Agreement, all of CITSF's right, title and interest in and to the related
Mortgage Loans will have been conveyed to CITCF, except as such interest
in the related Mortgaged Homes may be limited by the absence of a duly
recorded mortgage assignment.
(xiii) The Purchase Agreement is sufficient in form and substance to
convey to the Depositor all of CITCF's right, title and interest in and to
the Mortgage Loans. When the Purchase Agreement has been duly executed and
delivered by all parties thereto, and the purchase price has been paid to
CITCF by the Depositor in the manner specified in the Purchase Agreement,
all of CITCF's right, title and interest in and to the Mortgage Loans will
have been conveyed to the Depositor, except as such interest in the
related Mortgaged Homes may be limited by the absence of a duly recorded
mortgage assignment.
(xiv) The Pooling and Servicing Agreement is sufficient in form and
substance to convey to the Trustee all of the Depositor's right, title and
interest in and to the Mortgage Loans. When the Basic Documents have each
been duly executed and delivered by all parties thereto, the purchase
price therefor has been paid to the Depositor by the Trust in the manner
specified in the Pooling and Servicing Agreement, and the Offered
Certificates have been duly executed and duly authenticated and delivered
by the Trustee to or upon the order of the Depositor in accordance with
the Pooling and Servicing Agreement, all of the Depositor's right, title
and interest in and to the Mortgage Loans will have been conveyed to the
Trust and the Trust will be the holder of a valid and binding interest in
the Mortgage Loans against the Depositor, except that, until such time as
assignments of mortgages are recorded in the name of the Trustee, on
behalf of the Trust, in the appropriate jurisdictions (x) the Trustee may
not, in certain jurisdictions, be independently able to enforce the
mortgage against the related Mortgaged Homes or the
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related mortgagor, (y) CITCF-NY, CITSF or CITCF, as the case may be, could
record an assignment of a mortgage in the name of a third party or record
a discharge and satisfaction of a mortgage, and (z) any notice given to
the holder of record of a mortgage would be given to CITCF-NY, CITSF or
CITCF, as the case may be.
(xv) The documents incorporated by reference in the Registration
Statement and Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects
with the requirements of the 1934 Act and the Rules and Regulations,
except as to the financial statements and other financial and statistical
data included therein, to which such counsel need not express any opinion.
Said counsel may state that they are admitted to practice only in the
States of New York and New Jersey, as applicable, that they are not admitted to
the Bar in any other State, that they do not express an opinion as to the laws
of any jurisdiction other than the laws of the States of New York and New
Jersey, as applicable, the General Corporate Law of the State of Delaware and
the laws of the United States of America.
(f) The Representative shall have received an opinion of in-house General
Counsel of CIT or other counsel satisfactory to the Representative in its
reasonable judgment, dated the Closing Date, in substantially the form set forth
below, with such changes therein as the Representative and counsel for the
Underwriters shall reasonably agree:
(i) CIT has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) This Agreement has been duly authorized, executed and delivered
by CIT and is a valid and binding obligation of CIT enforceable against
CIT in accordance with its terms, except that (A) such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, (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.
(iii) The signing of the Registration Statement by CIT is within the
corporate power of CIT and has been duly authorized by all necessary
corporate action on the part of CIT; the consummation of the transactions
contemplated herein and the fulfillment of the terms hereof will not, to
the best of such counsel's knowledge, conflict with or constitute a breach
of, or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or asset of CIT pursuant to, any
material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which CIT is a party or by which it may be bound or to
which the property or assets of CIT are subject (but only as to material
contracts, indentures, mortgages, loan agreements, notes, leases and other
such instruments which have been identified by CIT to such counsel), nor
will such action result in any violation of the provisions of the
certificate of incorporation or by-laws of CIT or, to the best of such
counsel's knowledge, any law,
-15-
administrative regulation or administrative or court decree of any state
or federal courts, regulatory bodies, other body, governmental entity or
arbitrator having jurisdiction over CIT.
(iv) The documents with respect to CIT incorporated by reference in
the Registration Statement and Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the Rules and
Regulations, except as to the financial statements and other financial and
statistical data included therein, to which such counsel need not express
any opinion.
(v) To the best of such counsel's knowledge, there are no contracts
or documents of CIT which are required to be filed as exhibits to the
Registration Statement pursuant to the Act or the Rules and Regulations
including any documents incorporated by reference pursuant to Item 12 of
Form S-3 which were filed under the 1934 Act which have not been so filed.
Said counsel may state that they are admitted to practice only in the
States of New York and New Jersey, as applicable, that they are not admitted to
the Bar in any other State, that they do not express an opinion as to the laws
of any jurisdiction other than the laws of the States of New York and New
Jersey, as applicable, the General Corporate Law of the State of Delaware and
the laws of the United States of America.
(g) The Representative shall have received a written opinion of ▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel to the Depositor, CITCF, CITSF and CITCF-NY,
dated the Closing Date, in substantially the form set forth below, with such
changes therein as the Representative and counsel for the Underwriters shall
reasonably agree:
(i) The Offered Certificates have been duly authorized and, when
executed and authenticated by the Trustee as specified in the Pooling and
Servicing Agreement and issued and delivered and paid for as contemplated
by this Agreement, will be validly issued, outstanding and entitled to the
benefits of the Pooling and Servicing Agreement.
(ii) The Registration Statement became effective under the Act as of
April 11, 1997 and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement or any part
thereof or any amendment thereto has been issued under the Act and no
proceeding for that purpose has been instituted or threatened by the
Commission.
(iii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
(iv) The Trust is not, and will not as a result of the offer and
sale of the Offered Certificates as contemplated in the Prospectus and in
this Agreement become, required to register as an "investment company"
under the Investment Company Act of 1940, as amended.
-16-
(v) The statements in the prospectus supplement relating to the
Offered Certificates, dated July31, 1998, under the caption "Description
of the Certificates," insofar as such statements purport to summarize
certain terms of the Offered Certificates and the Basic Documents, present
a fair summary of such documents.
(vi) To the best of such counsel's knowledge, there are no contracts
or documents of the Depositor which are required to be filed as exhibits
to the Registration Statement pursuant to the Act or the Rules or
Regulations which have not been so filed.
(vii) The statements in the Prospectus under the headings "Certain
Federal Income Tax Consequences" and "ERISA Considerations," to the extent
that they constitute matters of law or legal conclusions with respect
thereto, are correct in all material respects.
(viii) The registration statement on Form S-3 (No. 333-22283)
relating to the Registered Securities as of its effective date, the
Registration Statement and the Prospectus as of the date of this
Agreement, and any amendment or supplement thereto, as of its date,
complied as to form in all material respects with the requirements of the
Act and the applicable Rules and Regulations. Such counsel need express no
opinion with respect to the financial statements, the exhibits, annexes
and other financial, statistical, numerical or portfolio data or
information on the economic condition or financial condition of the
portfolio information included in or incorporated by reference into the
registration statement on Form S-3 (No. 333-22283) relating to the
Registered Securities, the Registration Statement, the Prospectus or any
amendment or supplement thereto.
Such counsel shall state that it has participated in conferences with
officers and representatives of the Depositor, CITCF, CIT, CITSF, counsel to
CIT, CITCF, the Depositor, CITSF and officers and representatives of the
Underwriters, at which conferences certain of the contents of the Registration
Statement and the Prospectus were discussed and, although such counsel is not
passing upon and does not assume any responsibility whatsoever for, the factual
accuracy, completeness or fairness of the statements contained in the
registration statement on Form S-3 (No. 333-22283) relating to the Registered
Securities, the Registration Statement or Prospectus (except as stated in
Sections 6(h)(v) and 6(h)(vii) above) and has made no independent check or
verification thereof for the purpose of rendering this opinion, on the basis of
the foregoing (relying as to materiality to a large extent upon the certificates
of officers and other representatives of the Depositor, CIT, CITSF and CITCF),
no facts have come to their attention that leads such counsel to believe that
the registration statement on Form S-3 (No. 333-22283) relating to the
Registered Securities, as of its effective date, the Registration Statement, as
of the date of this Agreement, or any amendment thereto, as of its date when it
became effective, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus on its date contained
or on the Closing Date contains, any untrue statement of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that such
counsel need express no view with respect to the financial statements, tables,
schedules, exhibits, annexes and other financial,
-17-
statistical, numerical or portfolio data, or information on the economic
condition or financial condition of the portfolio included in or incorporated by
reference into, the Registration Statement or Prospectus.
Said counsel may state that they are admitted to practice only in the
State of New York, that they are not admitted to the Bar in any other State and
are not experts in the law of any other State and to the extent that the
foregoing opinions concern the laws of any other State such counsel may rely
upon the opinion of counsel satisfactory to the Underwriters and admitted to
practice in such jurisdiction. Any opinions relied upon by such counsel as
aforesaid shall be addressed to the Underwriters and shall be delivered together
with the opinion of such counsel, which shall state that such counsel believes
that their reliance thereon is justified.
(h) The Representative shall have received an opinion of ▇▇▇▇▇▇▇ & Stroock
& ▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Date, with respect
to the validity of the Offered Certificates and such other related matters as
the Representative shall require and the Depositor shall have furnished or
caused to be furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(i) The Representative shall have received an opinion of ▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇ ▇▇▇, counsel to the Trustee, dated the Closing Date, in form and in
substance satisfactory to the Representative and counsel for the Underwriters,
to the effect that:
(i) The Pooling and Servicing Agreement, assuming due authorization,
execution and delivery of such document by all other parties thereto,
constitutes the legal, valid and binding agreement of the Trustee, except
as enforceability thereof may be limited by bankruptcy, insolvency,
liquidation, reorganization, moratorium or other similar laws affecting
the enforcement of rights of creditors against the Trustee generally, as
such laws would apply in the event of bankruptcy, insolvency, liquidation,
receivership or reorganization or any moratorium or similar occurrence
affecting the Trustee, and the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or law).
(ii) The Offered Certificates have been duly executed, authenticated
and delivered by the Trustee in accordance with the terms of the Pooling &
Servicing Agreement.
(j) The Representative shall have received an opinion of in-house counsel
to the Trustee, dated the Closing Date, in form and in substance satisfactory to
the Representative and counsel for the Underwriters, to the effect that:
(i) The Trustee is a New York banking corporation validly existing
under the laws of the State of New York and has the full power and
authority to enter into, and to take all action required of it, under the
Pooling and Servicing Agreement.
(ii) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee.
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(iii) To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened against the Trustee
under the Pooling and Servicing Agreement before any court, administrative
agency or other tribunal (A) asserting the invalidity of the Pooling and
Servicing Agreement or the Offered Certificates, or (B) seeking to prevent
the issuance of the Offered Certificates or consummation of any of the
transactions contemplated by the Pooling and Servicing Agreement or the
Offered Certificates, or (C) that might materially or adversely affect the
performance by the Trustee of its obligations under, or the validity or
enforceability of the Pooling and Servicing Agreement and the Offered
Certificates.
(iv) The execution and delivery of the Pooling and Servicing
Agreement by the Trustee and the performance by the Trustee of its terms
do not conflict with or result in a violation of (a) any law or regulation
of the United States of America or the State of New York governing the
banking or trust powers of the Trustee, or (b) the articles of association
and by-laws of the Trustee.
(v) No consent, approval or authorization of, filing or registration
with, or notice to, any court or governmental agency or regulatory
authority is required for the Trustee in connection with the execution and
delivery of, performance under, or compliance with, the Pooling and
Servicing Agreement or the Offered Certificates.
(k) The Class A Certificates shall all have been rated "Aaa" by ▇▇▇▇▇'▇
and "AAA" by S&P, the Class M-1 Certificates shall have been rated "Aa2" by
▇▇▇▇▇'▇ and "AA" by S&P, the Class M-2 Certificates shall have been rated "A2"
by ▇▇▇▇▇'▇ and "A-" by S&P and , and the Class B-1 Certificates shall have been
rated "Baa2" by ▇▇▇▇▇'▇ and "BBB-" by S&P.
(l) The Representative shall have received copies of each opinion of
counsel delivered to either Rating Agency, together with a letter addressed to
the Representative, dated the Closing Date, to the effect that each Underwriter
may rely on each such opinion to the same extent as though such opinion was
addressed to each as of its date.
(m) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they reasonably may require for
the purpose of enabling them to pass upon the issuance and sale of the Offered
Certificates as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Depositor in connection with the issuance and sale
of the Offered Certificates as herein contemplated shall be in form and
substance satisfactory to the Representative and counsel for the Underwriters.
7. Computational Materials.
(a) Not later than 10:30 a.m. New York time, on the business day before
the date on which the Current Report relating to the Offered Certificates is
required to be filed by the Depositor with the Commission pursuant to Section
5(m) hereof, each Underwriter shall deliver to the Depositor five complete
copies of all materials, if any, provided by such Underwriter to
-19-
prospective investors in such Offered Certificates which constitute
"Computational Materials" within the meaning of the no-action letter dated May
20, 1994 issued by the Division of Corporation Finance of the Commission to
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated,
and ▇▇▇▇▇▇ Structured Asset Corporation, the no-action letter dated May 27, 1994
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association and the no-action letter of February 17, 1995 issued by
the Commission to the Public Securities Association (collectively, the
"▇▇▇▇▇▇/PSA Letters") and the filing of which is a condition of the relief
granted in such letters (such materials being the "Computational Materials").
Each delivery of Computational Materials to the Depositor pursuant to this
paragraph (a) shall be effected by delivering four copies of such materials to
counsel for the Depositor on behalf of the Depositor and one copy of such
materials to the Depositor. The Computational Materials so delivered shall be
accompanied by a letter from KPMG Peat Marwick LLP, addressed to the Depositor
and the Representative, in form and substance reasonably satisfactory to the
Depositor and the Representative, to the effect that KPMG Peat Marwick LLP have
performed certain agreed upon procedures with respect to such Computational
Materials as a result of which they have determined that such Computational
Materials are mathematically correct.
(b) Each Underwriter that so delivers Computational Materials represents
and warrants to and agrees with the Depositor, as of date hereof and as of the
Closing Date, that:
(i) on the date any such Computational Materials with respect to the
Offered Certificates were last furnished to each prospective investor by
such Underwriter and on the date of delivery thereof to the Depositor
pursuant to Section 7(a), any Underwriter Derived Information (defined
below), assuming the accuracy of the related Depositor Provided
Information, included therein did not and will not include any untrue
statement of a material fact, or, when read in conjunction with the
Prospectus and a prospectus supplement relating to the Offered
Certificates, did not and will not omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and
(ii) the Computational Materials contain customary legends and are
in substantially the same form as previously furnished to the Depositor.
Notwithstanding the foregoing, no Underwriter makes any representation or
warranty as to any information other than the Underwriter Derived Information
provided by such Underwriter. "Underwriter Derived Information" means such
portion, if any, of the information delivered to the Depositor pursuant to
Section 5(m) for filing with the Commission on Form 8-K as: (i) is not contained
in the Prospectus without taking into account information incorporated therein
by reference and (ii) does not constitute Depositor Provided Information.
"Depositor Provided Information" means any computer tape furnished to the
Underwriters by the Depositor concerning the assets comprising the Trust upon
which the mathematical calculations reflected in the Underwriter Derived
Information of any Underwriter are based.
-20-
(c) Each Underwriter severally covenants with the Depositor that if any
Underwriter Derived Information required to be provided to the Depositor
pursuant to this Section 7 is determined to contain any information that is
inaccurate or misleading, such Underwriter (whether or not such Underwriter
Derived Information was provided to the Depositor or filed by the Depositor with
the Commission) shall promptly prepare and deliver to the Depositor and each
prospective investor which received such Underwriter Derived Information
corrected Underwriter Derived Information. All information provided to the
Depositor pursuant to this Section 7(c) shall be provided within the time
periods set forth in Section 7(a).
(d) Each Underwriter shall comply with all applicable laws and regulations
in connection with the use of Computational Materials including the ▇▇▇▇▇▇/PSA
Letters.
(e) Each Underwriter shall provide the Company with representative forms
of all Computational Materials prior to their first use, to the extent such
forms have not previously been approved by the Company for use by such
Underwriter.
(f) If an Underwriter does not provide any Computational Materials to the
Company pursuant to Section 7(e) and if no Computational Materials have been
previously approved, such Underwriter shall be deemed to have represented, as of
the Closing Date, that it did not provide any prospective investors with any
information in written or electronic form in connection with the offering of the
Offered Certificates that is required to be filed with the Commission in
accordance with the ▇▇▇▇▇▇/PSA Letters.
(g) In the event of any delay in the delivery by any Underwriter to the
Company of all Computational Materials required to be delivered in accordance
with Section 7(a), the Company shall have the right to delay the release of the
Prospectus to investors or to any Underwriter, to delay the Closing Date and to
take other appropriate actions in each case as necessary in order to allow the
Company to comply with its agreement set forth in Section 5(m) to file the
Computational Materials by the time specified therein.
8. Indemnification and Contribution.
(a) CITCF will indemnify and hold each Underwriter harmless against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that (i) CITCF will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any of such
-21-
documents (x) in reliance upon and in conformity with written information
furnished to the Depositor or CITCF by any Underwriter through the
Representative specifically for use therein it being understood and agreed that
the only such information furnished by any Underwriter consists of the following
information contained in the prospectus supplement relating to the Offered
Certificates dated the date hereof: (a) the last paragraph at the bottom of the
cover page concerning the terms of the offering by the Underwriters, (b) the
legend concerning over-allotments and (c) the information contained under the
caption "Underwriting" (the "Underwriters' Information") or (y) with respect to
Underwriter Derived Information included in any Current Report or any amendment
or supplement thereof, except to the extent that any untrue statement or alleged
untrue statement therein results (or is alleged to have resulted) from an error
(a "Depositor Error") in the Depositor Provided Information other than a
Depositor Error which is corrected by information subsequently furnished by the
Depositor in writing or by electronic transmission to such Underwriter prior to
the time such Computational Materials are furnished to the Depositor pursuant to
Section 7(a), (ii) such indemnity with regard to any related preliminary
prospectus shall not inure to the benefit of each Underwriter (or any person
controlling each Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Offered Certificates which are the
subject thereof if such person did not receive a copy of the Prospectus (or, in
the event it is amended or supplemented, such Prospectus as amended or
supplemented) at or prior to the confirmation of the sale of such Offered
Certificates to such person if such Prospectus (or, in the event it is amended
or supplemented, such Prospectus as amended or supplemented) was timely
forwarded to each Underwriter as required by this Agreement and the untrue
statement or omission of a material fact contained in such related preliminary
prospectus was corrected in the Prospectus (or, in the event it is amended or
supplemented, such Prospectus as amended or supplemented) and (iii) CITCF shall
not, in connection with any one such action or separate but substantially
similar or related transactions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for all such Underwriters,
which firm shall be designated in accordance with Section 8(c) hereof.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Depositor and CITCF against any losses, claims, damages or
liabilities to which the Depositor or CITCF may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Depositor or CITCF by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Depositor or CITCF in connection with investigating
or defending any such action or claim as such expenses are incurred, it being
understood and agreed that (i) the only such information furnished by any
Underwriter consists of (x) the Underwriters' Information and (y) in any
Underwriter Derived Information (or
-22-
amendments or supplements thereof) furnished to the Depositor by such
Underwriter pursuant to Section 7 (except that no such indemnity shall be
available for any losses, claims, damages or liabilities (or actions in respect
thereof) resulting from a Depositor Error other than a Depositor Error which is
corrected by information subsequently furnished by the Depositor in writing or
by electronic transmission to such Underwriter prior to the time such
Computational Materials are furnished to the Depositor pursuant to Section 7(a),
and (ii) the Underwriters shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys for
each of the Depositor and CITCF, which firm shall be designated in accordance
with Section 8(c) hereof.
(c) Promptly after receipt by an indemnified party under this Section of
written notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and after acceptance by the indemnified party of counsel, except
as provided in the next following paragraph, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
Any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; or (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
-23-
of more than one separate firm of attorneys (in addition to one local counsel
per jurisdiction) at any time for all such indemnified parties, which firm shall
be designated in writing by the related Underwriter, if the indemnified parties
under this Section 8 consist of one or more Underwriters or any of its or their
controlling persons, or the Depositor, if the indemnified parties under this
Section 8 consist of the Depositor or any of the Depositor's directors, officers
or controlling persons.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above, (i) in such proportion
as is appropriate to reflect the relative benefits received by the Depositor and
CITCF on the one hand and the Underwriters on the other from the offering of the
Offered Certificates or (ii) if the allocation provided in clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Depositor and CITCF on the one hand and the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the Depositor and
CITCF on the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering of the Offered
Certificates (before deducting expenses) received by the Depositor and CITCF
bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Depositor, CITCF or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Certificates underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to constribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of CITCF under this Section shall be in addition to
any liability which the Depositor or CITCF may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same
-24-
terms and conditions, to each director of the Depositor or CITCF, to each
officer of the Depositor or CITCF who has signed the Registration Statement and
to each person, if any, who controls the Depositor or CITCF within the meaning
of the Act.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Depositor, and CITCF or their respective officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation or statement as to the results thereof,
made by or on behalf of any Underwriter, the Depositor, CITCF, CITSF or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Certificates.
If this Agreement is terminated pursuant to Section 10 or if for any reason the
purchase of the Offered Certificates by the Underwriters is not consummated, the
Depositor, CITCF, CITSF and CITCF-NY shall remain responsible for the expenses
to be paid or reimbursed by it pursuant to Section 5 hereof and the respective
obligations of the Depositor, CITCF, CITSF and the Underwriters pursuant to
Section 8 hereof shall remain in effect. If the purchase of the Offered
Certificates by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 10 or
the occurrence of any event specified in clauses (iii), (iv) or (v) of Section
6(d) hereof, the Depositor, and CITCF will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Certificates.
10. Failure to Purchase the Offered Certificates. If any Underwriter or
Underwriters default in their obligations to purchase the principal amount of
the Class or Classes of Offered Certificates opposite such Underwriter's name on
Schedule I hereto and the aggregate principal amount of such Class or Classes of
Offered Certificates that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total principal amount of the
Offered Certificates, the Representative may make arrangements satisfactory to
the Depositor, and CITCF for the purchase of such Offered Certificates by other
persons, including any of the Underwriters, but if no such arrangements are made
by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Offered Certificates that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount of the Class or Classes of Offered Certificates with respect to
such default or defaults exceeds 10% of the total principal amount of the
Offered Certificates and arrangements satisfactory to the Representative, the
Depositor, and CITSF for the purchase of such Offered Certificates by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Depositor, or CITCF, except as provided in Section 9. As used in this Agreement,
the term "Underwriter" includes any person substituted for an Underwriter under
this Section. Nothing herein will relieve a defaulting Underwriter or
Underwriters from liability for its default.
11. Notices. All communications hereunder will be in writing and, if sent
to the Representative or the Underwriters, will be mailed, delivered or sent by
facsimile transmission and confirmed to it at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
-25-
York, New York 10036, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (facsimile number (212)
761-0782); with a copy to its General Counsel office (facsimile number (212)
761-8519), if sent to the Depositor, will be mailed, delivered or sent by
facsimile transmission and confirmed to it at The CIT Group Securitization
Corporation III, ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, 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 CITCF, will be mailed,
delivered or sent by facsimile transmission and confirmed to it at The CIT
Group/Consumer Finance, Inc., ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: President (facsimile number (▇▇▇) ▇▇▇-▇▇▇▇).
12. No Bankruptcy Petition. Each Underwriter agrees that, prior to the
date which is one year and one day after the payment in full of all securities
issued by the Depositor or by a trust for which the Depositor was the depositor
which securities were rated by any nationally recognized statistical rating
organization, it will not institute against, or join any other person in
instituting against, the Depositor any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any Federal or
state bankruptcy or similar law.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the Underwriters, the Depositor, CIT and CITCF and their respective
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligations hereunder.
14. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with the transactions described in this
Agreement, and any action taken by Representative under this Agreement will be
binding upon all the Underwriters.
15. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
16. Counterparts. This Agreement may be executed by each of the parties
hereto in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
-26-
If the foregoing is in accordance with the Representative's understanding
of our agreement, kindly sign and return to us a counterpart hereof, whereupon
it will become a binding agreement among the Depositor, CIT, CITCF and the
several Underwriters in accordance with its terms.
Very truly yours,
THE CIT GROUP SECURITIZATION
CORPORATION III
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE CIT GROUP/CONSUMER
FINANCE, INC.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE CIT GROUP, INC.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
-27-
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Acting on behalf of itself
and as the Representative
of the several Underwriters.
-28-
SCHEDULE I
Pass
Original Principal Through
Class Balance $ Price % Price $ Rate %
----- --------- ------- ------- ------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated A-1 20,333,334 99.84706 20,302,236.20 5.88
First Chicago Capital Markets, Inc. A-1 20,333,333 99.84706 20,302,235.20 5.88
Credit Suisse First Boston Corporation A-1 20,333,333 99.84706 20,302,235.20 5.88
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated A-2 12,666,668 99.82255 12,644,190.99 6.01
First Chicago Capital Markets, Inc. A-2 12,666,666 99.82255 12,644,189.00 6.01
Credit Suisse First Boston Corporation A-2 12,666,666 99.82255 12,644,189.00 6.01
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated A-3 15,000,000 99.75466 14,963,199.00 6.08
First Chicago Capital Markets, Inc. A-3 15,000,000 99.75466 14,963,199.00 6.08
Credit Suisse First Boston Corporation A-3 15,000,000 99.75466 14,963,199.00 6.08
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated A-4 8,333,334 99.73338 8,311,115.66 6.20
First Chicago Capital Markets, Inc. A-4 8,333,333 99.73338 8,311,114.66 6.20
Credit Suisse First Boston Corporation A-4 8,333,333 99.73338 8,311,114.66 6.20
-29-
Pass
Original Principal Through
Class Balance $ Price % Price $ Rate %
----- --------- ------- ------- ------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated A-5 3,666,668 99.61653 3,652,607.43 6.36
First Chicago Capital Markets, Inc. A-5 3,666,666 99.61653 3,652,605.43 6.36
Credit Suisse First Boston Corporation A-5 3,666,666 99.61653 3,652,605.43 6.36
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated A-6 3,624,000 99.69266 3,612,861.99 6.70
First Chicago Capital Markets, Inc. A-6 3,624,000 99.69266 3,612,861.99 6.70
Credit Suisse First Boston Corporation A-6 3,624,000 99.69266 3,612,861.99 6.70
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated A-7 6,333,334 99.69128 6,313,781.73 6.30
First Chicago Capital Markets, Inc. A-7 6,333,333 99.69128 6,313,781.73 6.30
Credit Suisse First Boston Corporation A-7 6,333,333 99.69128 6,313,780.73 6.30
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated A-8 17,105,668 99.70000 17,054,350.99 LIBOR + 0.16
First Chicago Capital Markets, Inc. A-8 17,105,666 99.70000 17,054,349.00 LIBOR + 0.16
Credit Suisse First Boston Corporation A-8 17,105,666 99.70000 17,054,349.00 LIBOR + 0.16
-30-
Pass
Original Principal Through
Class Balance $ Price % Price $ Rate %
----- --------- ------- ------- ------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated M-1 7,682,000 99.56202 7,648,354.38 6.44
First Chicago Capital Markets, Inc. M-1 7,682,000 99.56202 7,648,354.38 6.44
Credit Suisse First Boston Corporation M-1 7,682,000 99.56202 7,648,354.38 6.44
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated M-2 6,544,000 99.54516 6,514,235.27 6.72
First Chicago Capital Markets, Inc. M-2 6,544,000 99.54516 6,514,235.27 6.72
Credit Suisse First Boston Corporation M-2 6,544,000 99.54516 6,514,235.27 6.72
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated B-1 3,983,334 99.39250 3,959,135.25 7.37
First Chicago Capital Markets, Inc. B-1 3,983,333 99.39250 3,959,134.25 7.37
Credit Suisse First Boston Corporation B-1 3,983,333 99.39250 3,959,134.25 7.37
B-1 99.39250 7.37
Total Price to Public: $315,783,764
Total Price to Depositor: $314,928,187
Underwriting Discounts and Commissions: $ 855,577
-31-
SCHEDULE II
Locations of Chief Executive Offices
The CIT Group Securitization Corporation III ▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
The CIT Group/ Consumer Finance, Inc. ▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
The CIT Group/Sales Financing, Inc. ▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
The CIT Group/Consumer Finance, Inc. (NY) ▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-0491