Exhibit 10.2
SUBSEQUENT PURCHASE AGREEMENT
This Subsequent Purchase Agreement dated as of ____________, ____ (the
"Agreement"), is between THE CIT GROUP SECURITIZATION CORPORATION II, as
purchaser (the "Purchaser"), and THE CIT GROUP/SALES FINANCING, INC., as seller
(the "Seller").
Reference is hereby made to the Purchase Agreement dated as of
____________, ____ between the parties hereto (the "Purchase Agreement")
pursuant to which the Purchaser purchased from the Seller the marine installment
sales contracts set forth on Exhibit A thereto (the "Initial Contracts"). The
Purchaser sold the Initial Contracts to the trust established pursuant to the
Trust Agreement dated as of ____________, ____ between the Purchaser and
[____________________], as trustee (the "Owner Trustee").
Pursuant to the Sale and Servicing Agreement dated as of ____________,
____ between CIT Marine Trust ____-_ (the "Trust"), the Purchaser and the
Seller, the Purchaser agreed to purchase from the Seller and the Seller agreed
to sell to the Purchaser, subject to the terms and conditions set forth in
Section 3.01D of the Sale and Servicing Agreement, Subsequent Contracts for the
fixed purchase price specified in the Sale and Servicing Agreement for delivery
on the date specified herein. The purchase price for any Subsequent Contract
will be funded from money on deposit in the Pre-Funding Account during the
Funding Period. The purchase of any Subsequent Contract by the Purchaser must be
evidenced by the execution and delivery of a Subsequent Purchase Agreement
substantially in the form of Exhibit B to the Sale and Servicing Agreement.
Accordingly, subject to the terms hereof and the Sale and Servicing Agreement,
the Seller agrees to sell, and the Purchaser agrees to purchase, the marine
installment sales contracts set forth on Exhibit A hereto (collectively, the
"Subsequent Contracts"), having an aggregate outstanding principal balance as of
____________, ____ (the "Subsequent Cut-Off Date") of $___________.
The Purchaser and the Seller wish to prescribe the terms and conditions
of the purchase by the Purchaser of the Subsequent Contracts and the servicing
and administration of the Subsequent Contracts.
In consideration of the premises and the mutual agreements hereinafter
set forth, the Purchaser and the Seller agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Certain capitalized terms used in this
Agreement shall have the respective meanings assigned to them in the Sale and
Servicing Agreement. All references in
this Agreement to Articles, Sections, subsections and exhibits are to the same
contained in or attached to this Agreement unless otherwise specified.
ARTICLE II
SALE AND CONVEYANCE OF SUBSEQUENT CONTRACTS; CONTRACT FILES
SECTION 2.1. Sale and Conveyance of Contracts. On ____________, ____
(the "Subsequent Transfer Date"), subject to the terms and conditions hereof,
the Seller shall sell, transfer, assign absolutely, set over and otherwise
convey to the Purchaser as of the Subsequent Transfer Date (i) all the right,
title and interest of the Company in and to the Subsequent Contracts and all the
rights, benefits, and obligations arising from and in connection with each
Subsequent Contract, (ii) the security interests in the Subsequent Financed
Boats granted by the Obligors pursuant to the Subsequent Contracts, (iii) all
payments received by the Company on or with respect to the Subsequent Contracts
on or after the Subsequent Cut-off Date (exclusive of payments with respect to
Post Cut-off Date Insurance Add-Ons), (iv) the interest of the Company in any
Subsequent Financed Boat (including any right to receive future Net Liquidation
Proceeds) that secures the Subsequent Contracts and that shall have been
repossessed by the Servicer by or on behalf of the Trust; (v) all rights of the
Company to proceeds of Insurance Policies covering the Obligors and the
Subsequent Contracts, (vi) the proceeds from any Servicer's Errors and Omissions
Protection Policy, any fidelity bond and any blanket hazard policy, to the
extent such proceeds relate to any Subsequent Financed Vehicle, (vii) all rights
of recourse against any cosigner or under any personal guarantee with respect to
the Subsequent Contracts (other than any right as against a Dealer under a
Dealer Agreement), (viii) all proceeds in any way derived from any of the
foregoing items, and (ix) all documents contained or required to be contained in
the Contract Files relating to the Subsequent Contracts. The parties intend and
agree that the conveyance of the Seller's right, title and interest in and to
the Subsequent Contracts (and all rights, entitlements and amounts listed above)
pursuant to this Agreement shall constitute an absolute sale.
SECTION 2.2. Purchase Price; Payments on the Subsequent Contracts.
(a) The purchase price for the Subsequent Contracts shall be
an amount equal to $___________, which is the aggregate outstanding
principal balance of the Subsequent Contracts transferred pursuant to
this Agreement as of the Subsequent Cut-off Date, and the Seller hereby
acknowledges receipt of such amount in respect of the sale of the
Subsequent Contracts hereunder. Such purchase price shall be payable in
immediately available funds on the Subsequent Transfer Date from funds
on deposit in the Pre-Funding Account.
(b) The Purchaser shall be entitled to all payments of
principal and interest received on or after the Subsequent Cut-off
Date. All payments of principal and interest received before the
Subsequent Cut-off Date shall belong to the Seller. The Seller shall
hold in trust for the Purchaser and shall promptly remit to the
Purchaser, any payments on
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the Subsequent Contracts received by the Seller that belong to the
Purchaser under the terms of this Agreement.
SECTION 2.3. Conditions to Sale of Subsequent Contracts. The
Purchaser's obligations hereunder are subject to the following conditions:
(a) The Purchaser shall have received: the Sale and Servicing
Agreement executed by all the parties thereto, the documents listed in
Section 3.01D of the Sale and Servicing Agreement, and such other
opinions and documents as the Purchaser may reasonably require in
connection with the purchase of the Subsequent Contracts hereunder or
the sale of the Notes and Certificates;
(b) The representations and warranties with respect to the
Subsequent Contracts of (i) the Seller and the Servicer made in the
Sale and Servicing Agreement and (ii) the Seller made in the Purchase
Agreement and this Agreement shall be true and correct with respect to
the Subsequent Contracts on the Subsequent Transfer Date; and
(c) The conditions for transfer of the Subsequent Contracts
from the Purchaser to the Trust set forth in Section 3.01D of the Sale
and Servicing Agreement have been fulfilled.
SECTION 2.4. Examination of Files. The Seller will make the Contract
Files with respect to the Subsequent Contracts available to the Purchaser or its
agent for examination at the Trust's offices or such other location as otherwise
shall be agreed upon by the Purchaser and the Seller.
SECTION 2.5. Transfer of Subsequent Contracts. Pursuant to the Sale and
Servicing Agreement, the Purchaser will assign all of its right, title and
interest in and to the Subsequent Contracts to the Trust for the benefit of the
Securityholders. The Purchaser has the right to assign its interest under this
Agreement as may be required to effect the purposes of the Sale and Servicing
Agreement, by written notice to the Seller and without the consent of the
Seller, and the assignee shall succeed to the rights and obligations hereunder
of the Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER;
REPURCHASE OF CONTRACTS
SECTION 3.1. Representations and Warranties of the Seller.
(a) The representations and warranties of the Seller contained
in Article III of the Sale and Servicing Agreement with respect to the
Subsequent Contracts are incorporated herein, and are made to the
Purchaser on the Subsequent Transfer Date, as if set forth herein and
as if made to the Purchaser on the date hereof. The Seller will make
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such representations and warranties in the Sale and Servicing Agreement
directly to the Trust and will become obligated in respect of such
representations and warranties pursuant to Article III of the Sale and
Servicing Agreement. On the Subsequent Transfer Date, the Seller shall
deliver to the Purchaser an Officers' Certificate, dated the Subsequent
Transfer Date, to the effect that the representations and warranties
made in the Sale and Servicing Agreement with respect to the Subsequent
Contracts by the Seller are true and correct as of the Subsequent
Transfer Date.
(b) It is understood and agreed that the representations and
warranties incorporated by reference in this Agreement by Section 3.1.
A hereof shall remain operative and in full force and effect, shall
survive the transfer and conveyance of the Subsequent Contracts by the
Seller to the Purchaser and by the Purchaser to the Trust, and shall
inure to the benefit of the Purchaser, the Trust and their successors
and permitted assignees.
(c) The Seller shall indemnify the Purchaser and the Servicer
and hold the Purchaser and the Servicer harmless against any loss,
penalties, fines, forfeitures, legal fees and related costs, judgments
and other costs and expenses resulting from any claim, demand, defense
or assertion based on or grounded upon, or resulting from, a breach of
the Seller's representations and warranties contained or incorporated
by reference in this Agreement. It is understood and agreed that the
obligation of the Seller set forth in this Section 3.1 to indemnify the
Purchaser and the Servicer as provided in this Section 3.1. constitutes
the sole remedy of the Purchaser and the Servicer respecting a breach
of the foregoing representations and warranties. The Trust shall also
have the remedies provided in the Sale and Servicing Agreement.
(d) Each indemnified party shall give prompt notice to the Seller of
any action commenced against it with respect to which indemnity may be sought
hereunder but failure to so notify an indemnifying party shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement, unless the failure to notify materially prejudices the rights and
condition of the Seller. The Seller shall be entitled to participate in any such
action, and to assume the defense thereof, and after notice from the Seller to
an indemnified party of its election to assume the defense thereof, the Seller
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.
(e) Any cause of action against the Seller or relating to or arising
out of the breach of any representations and warranties made or incorporated by
reference in this Section 3.01 shall accrue as to any Subsequent Contract upon
(i) discovery of such breach by the Purchaser or the Servicer or notice thereof
by the Seller to the Purchaser and the Servicer, (ii) failure by the Seller to
cure such breach and (iii) demand upon the Seller by the Purchaser for all
amounts payable in respect of such Subsequent Contract.
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ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 4.1. Amendment. This Agreement may be amended from time to time
by the Seller and the Purchaser by written agreement signed by the Seller and
the Purchaser.
SECTION 4.2. Counterparts. For the purpose of facilitating the
execution of this Agreement as herein provided and for other purposes, this
Agreement may be executed simultaneously in any number of counterparts, each of
which counterparts shall be deemed to be an original, and such counterparts
shall constitute but one and the same instrument.
SECTION 4.3. Termination. The Seller's obligations under this Agreement
shall survive the sale of the Subsequent Contracts to the Purchaser.
SECTION 4.4. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
SECTION 4.05. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed by first class mail, postage prepaid, to (i) in the case of the Seller,
The CIT Group/Sales Financing, Inc., ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, Attention: President, or such other address as may hereafter be furnished
to Purchaser in writing by the Seller, or (ii) in the case of the Purchaser, The
CIT Group Securitization Corporation II, ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, Attention: President, or such other address as may hereafter be furnished
to the Seller by the Purchaser.
SECTION 4.6. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
SECTION 4.7. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Seller and the Purchaser and their respective
successors and assigns, as may be permitted hereunder.
SECTION 4.8. Opinion. The Counsel to the Seller shall deliver to the
Purchaser and the Trustees an opinion in the form of Exhibit B hereto.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
THE CIT GROUP SECURITIZATION
CORPORATION II,
as Purchaser
By: ___________________________________
Name:
Title:
THE CIT GROUP/SALES FINANCING, INC.,
as Seller
By: ___________________________________
Name:
Title:
EXHIBIT A
List of Subsequent Contracts
EXHIBIT B
[FORM OF OPINION OF COUNSEL]
[Date]
[____________________],
solely in its capacity as Indenture Trustee
under the Sale and Servicing Agreement
referred to herein
[____________________],
solely in its capacity as Owner Trustee
under the Sale and Servicing Agreement
referred to herein
Ladies and Gentlemen:
I have acted as counsel to The CIT Group/Sales Financing, Inc.
("CITSF") and The CIT Group Securitization Corporation II, a Delaware
corporation (the "Company"), in connection with the sale of CIT Marine Trust
____-_, Class A _____% Asset Backed Notes (the "Notes") and _____% Asset Backed
Certificates (the "Certificates" and, collectively with the Notes, the
"Securities"). The Notes represent obligations of, and the Certificates
represent interests in, a trust, the CIT Marine Trust ____-_ (the "Trust"),
consisting of a pool of installment sale contracts secured by new and used boats
(collectively, the "Contracts") and certain related property. The Company
purchased certain of the Contracts from CITSF (the "Initial Contracts") pursuant
to a Purchase Agreement, dated as of ____________, ____, by and between CITSF
and the Company. Additional Contracts are being purchased by the Company from
CITSF (the "Subsequent Contracts") pursuant to the Subsequent Purchase Agreement
dated as of ____________, ____ (the "Subsequent Purchase Agreement"). Pursuant
to a Sale and Servicing Agreement, dated as of ____________, ____ (the "Sale and
Servicing Agreement"), among the Company, CITSF and the Trust, the Company
transferred the Initial Contracts to the Trust. The Company will also transfer,
pursuant to the Sale and Servicing Agreement, the Subsequent Contracts to the
Trust, the corpus of which will consist of each of the Initial Contracts and the
Subsequent Contracts and certain other property transferred by the Company to
the Trust.
All capitalized terms used herein and not defined shall have the
meanings assigned to them in the Subsequent Purchase Agreement.
In rendering the following opinions, I have examined (i) the Subsequent
Purchase Agreement; (ii) the Sale and Servicing Agreement; (iii) the Certificate
of Incorporation of each of
CITSF and the Company; (iv) the By-laws of each of CITSF and the Company; (v)
copies of certain unanimous consents adopted by the Board of Directors of the
Company authorizing the issuance and sale of the Securities and the purchase of
the Contracts; and (vi) copies of certain unanimous written consents of the
Board of Directors of CITSF. I have also examined such other documents and made
such investigations of law as I have considered necessary and appropriate for
the purposes of the opinions expressed herein. I have assumed the authenticity
of signatures on original documents and the conformity to the original of all
documents submitted to me as certified, conformed or photostatic copies and have
relied as to all matters of fact on certificates, representations or statements
by officers of the Company or CITSF.
In making my examination of agreements, instruments and other documents
and in giving opinions herein, I have assumed that the Trustees have and had the
power and capacity to execute and deliver such agreements, instruments and other
documents and to perform all of their obligations thereunder and that such
agreements, instruments and other documents were duly authorized by all
requisite action by or on behalf of the Trustees were duly executed,
acknowledged, as necessary, and delivered by or on behalf of and are the legal,
valid and binding obligations of, and are enforceable in accordance with their
terms against, the Trustees.
Based upon, and subject to, the foregoing I am of the opinion that:
1. The Subsequent Purchase Agreement has been duly authorized, executed
and delivered by each of CITSF and the Company and constitutes the legal, valid
and binding agreement of each of CITSF and the Company, and is enforceable
against each of CITSF and the Company in accordance with its terms; the
Subsequent Purchase Agreement is effective to transfer all of CITSF's right,
title and interest in and to the Subsequent Contracts and other property
described in Section 2.1 of the Subsequent Purchase Agreement to the Company;
the Sale and Servicing Agreement is effective to transfer all of the Company's
right, title and interest in and to such Subsequent Contracts and other property
to the Trust subject to no prior liens or encumbrances.
2. No consent, approval, authorization or order of, registration or
filing with, or notice to any governmental authority or court is required under
federal laws or the laws of the State of Delaware for the execution, delivery
and performance by the Company of the Subsequent Purchase Agreement or the
consummation of any other transaction contemplated thereby by the Company,
except for those which have been obtained or except such as may be required
under the Securities Act of 1933, as amended or the regulations promulgated
thereunder or state securities or Blue Sky laws of any jurisdiction.
3. No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required under
federal laws or the laws of the State of Delaware for the execution, delivery
and performance by CITSF of the Subsequent Purchase Agreement or the
consummation of any other transaction contemplated thereby by CITSF except for
those which have been obtained or except such as may be required under the
Securities Act of 1933, as amended or the regulations promulgated thereunder or
state securities or Blue Sky laws of any jurisdiction.
I am furnishing this opinion to you solely for your benefit. This
opinion is not to be used, circulated, quoted or otherwise referred to or relied
on by any other person or for any other purpose.
The foregoing opinion is given on the express understanding that the
undersigned is an officer of the Company and CITSF and shall in no event incur
any personal liability in connection with the said opinion.
Very truly yours,
ASSIGNMENT OF SUBSEQUENT CONTRACTS
For good and valuable consideration in the amount of $___________ paid
by THE CIT GROUP SECURITIZATION CORPORATION II (the "Purchaser"), to THE CIT
GROUP/SALES FINANCING, INC. (the "Seller"), CITSF does hereby sell, transfer,
assign absolutely, set over and otherwise convey to the Purchaser as of the
Subsequent Transfer Date (i) all the right, title and interest of the Company in
and to the marine installment sales contracts set forth on Exhibit A to the
Subsequent Purchase Agreement, dated as of ____________, ____, between the
Purchaser and the Seller (the "Subsequent Contracts") and all the rights,
benefits, and obligations arising from and in connection with each Subsequent
Contract, (ii) the security interests in the Subsequent Financed Boats granted
by the Obligors pursuant to the Subsequent Contracts, (iii) all payments
received by the Company on or with respect to the Subsequent Contracts on or
after the Subsequent Cut-off Date (exclusive of payments with respect to Post
Cut-off Date Insurance Add-Ons), (iv) the interest of the Company in any
Subsequent Financed Boat (including any right to receive future Net Liquidation
Proceeds) that secures the Subsequent Contracts and that shall have been
repossessed by the Servicer by or on behalf of the Trust; (v) all rights of the
Company to proceeds of Insurance Policies covering the Obligors and the
Subsequent Contracts, (vi) the proceeds from any Servicer's Errors and Omissions
Protection Policy, any fidelity bond and any blanket hazard policy, to the
extent such proceeds relate to any Subsequent Financed Boat, (vii) all rights of
recourse against any cosigner or under any personal guarantee with respect to
the Subsequent Contracts (other than any right as against a Dealer under a
Dealer Agreement), (viii) all proceeds in any way derived from any of the
foregoing items, and (ix) all documents contained or required to be contained in
the Contract Files relating to the Subsequent Contracts. The parties intend and
agree that the conveyance of the Seller's right, title and interest in and to
the Subsequent Contracts (and all rights, entitlements and amounts listed above)
pursuant to this Agreement shall constitute an absolute sale. Certain
capitalized terms used in this Assignment shall have the respective meanings
assigned to them in the Sale and Servicing Agreement, dated as of ____________,
____, among The CIT Group Securitization Corporation II, CITSF and CIT Marine
Trust ____-_.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed this ____ day of __________, ________.
THE CIT GROUP/SALES FINANCING, INC.,
By: ___________________________________
Name:
Title: