Exhibit 4.5
LIMITED GUARANTEE, dated as of __________, ____, made by The
CIT Group, Inc. ("CIT") in favor of _______________, not in its individual
capacity but solely as Owner Trustee (the "Owner Trustee") under the Sale and
Servicing Agreement dated as of __________, ____ (the "Sale and Servicing
Agreement"), among The CIT Group Securitization Corporation II (the "Company"),
The CIT Group/Sales Financing, Inc. ("CITSF") and the CIT Marine Trust ____-_.
WHEREAS, the execution and delivery of this Limited Guarantee
by CIT on or before the Closing Date (as defined in the Sale and Servicing
Agreement) is a condition to the issuance and sale of the Notes and the
Certificates, as contemplated by the Sale and Servicing Agreement;
WHEREAS, CIT will derive substantial benefit from the
transactions contemplated by the Sale and Servicing Agreement, including,
without limitation, the payment of the Guarantee Fee (as defined in the Sale and
Servicing Agreement) to CIT;
WHEREAS, capitalized terms used herein and not otherwise
defined herein shall have the meaning ascribed to such terms in the Sale and
Servicing Agreement; and
WHEREAS, in order to induce the parties to the Sale and
Servicing Agreement to enter into the Sale and Servicing Agreement and perform
their respective obligations thereunder, CIT is willing to execute and deliver
this Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, CIT hereby
unconditionally agrees as follows:
SECTION 1. The Guarantee.
(a) CIT hereby unconditionally and absolutely guarantees the
payment to the Owner Trustee, on behalf of the Certificateholders, of the
Guarantee Payment due to the Certificateholders on each Distribution Date. Not
later than the third Business Day prior to each Distribution Date, the Servicer
shall notify CIT of the amount of the Guarantee Payment, if any, for such
Distribution Date (net of any reduction provided for in Section 1(e) hereof) and
not later than the Business Day preceding each Distribution Date, CIT shall
deposit the Guarantee Payment, if any, for such Distribution Date into the
Certificate Distribution Account in immediately available funds.
(b) Notwithstanding the obligation of CIT in clause (a) above,
in no event will CIT be obligated to make a Guarantee Payment if the aggregate
amounts paid under this Agreement would exceed $_________ (the "Initial
Guarantee Payment Limit"), except as provided in Section 3 hereof. Subject to
Section 3, the "Guarantee Payment Limit" will at any time equal the Initial
Guarantee Payment Limit reduced by the amount of each Guarantee
Payment. On the date that the Guarantee Payment Limit is reduced to zero (if the
Nonreinstatement Notice has been given), CIT shall have no further liability
under this Limited Guarantee, and CIT shall be deemed to have satisfied in full
all of its obligations under this Limited Guarantee.
(c) The obligations of CIT under this Limited Guarantee shall
not terminate upon or otherwise be reduced by a Service Transfer pursuant to
Article VII of the Sale and Servicing Agreement, by any amendment to the Sale
and Servicing Agreement, the Purchase Agreement, any Subsequent Purchase
Agreement or any other agreement relating to the Certificateholders or any
breach by any party to any such agreement of its obligations thereunder or the
failure of CIT to receive all or any part of the Guarantee Fee.
(d) The obligations of CIT under this Limited Guarantee shall
terminate on the earlier of (i) the date referred to in Section 1(b) hereof,
(ii) one year and one day following the Distribution Date on which the
Certificate Balance has been reduced to zero and all accrued interest on the
Certificates has been paid in full, or (iii) the date on which there shall have
been delivered "Alternate Credit Enhancement" in accordance with Section [5.06]
of the Sale and Servicing Agreement.
(e) On and after the Trigger Date (if the Nonreinstatement
Notice is given), the amount of the Guarantee Payment to be made by CIT
hereunder for each Distribution Date shall be reduced by the amount to be
transferred on such Distribution Date from the Certificate Reserve Account to
the Certificate Distribution Account.
(f) The obligation of CIT to make the Guarantee Payments
described in clause (a) above shall be unconditional and irrevocable, subject to
the limitations set forth in clauses (b), (d) and (e) above.
SECTION 2. Representations and Warranties.
In making this Limited Guarantee CIT represents and warrants
to the Owner Trustee and the Certificateholders that:
(a) Organization and Good Standing. CIT is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the corporate power to own its assets
and to transact the business in which it is currently engaged. CIT 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 the business,
properties, assets, or condition (financial or other) of CIT.
(b) Authorization; Binding Obligations. CIT has the power and
authority to make, execute, deliver and perform this Limited Guarantee and all
of the transactions
-2-
contemplated under this Limited Guarantee, and has taken all necessary corporate
action to authorize the execution, delivery and performance of this Limited
Guarantee. When executed and delivered, this Limited Guarantee will constitute
the legal, valid and binding obligation of CIT enforceable in accordance with
its terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies.
(c) No Consent Required. CIT is not required to obtain the
consent of any other party or any consent, license, approval or authorization
from, or registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Limited Guarantee the failure of which so to obtain would
have a material adverse effect on the business, properties, assets or condition
(financial or otherwise) of CIT.
(d) No Violations. The execution, delivery and performance of
this Limited Guarantee by CIT will not violate any provision of any existing law
or regulation or any order or decree of any court or the Articles of
Incorporation or Bylaws of CIT, or constitute a material breach of any mortgage,
indenture, contract or other agreement to which CIT is a party or by which CIT
may be bound.
(e) Litigation. No litigation or administrative proceeding of
or before any court, tribunal or governmental body is currently pending, or to
the knowledge of CIT threatened, against CIT or any of its properties or with
respect to this Limited Guarantee or the Certificates which, if adversely
determined, would in the opinion of CIT have a material adverse effect on the
transactions contemplated by this Limited Guarantee.
Section 3. Reinstatement after Trigger Date; Nonreinstatement.
(a) On each Distribution Date on and after the first
Distribution Date (the "Trigger Date") on which the Guarantee Payment Limit is
less than $_________, unless CIT has delivered the "Nonreinstatement Notice" to
the Servicer and the Owner Trustee on or prior to such Trigger Date, the
Guarantee Payment Limit will equal an amount equal to the least of: (i)
$_________, and (ii) the Certificate Balance. If, subsequent to the Trigger
Date, CIT delivers the Nonreinstatement Notice to the Servicer and the Owner
Trustee, the Guarantee Payment Limit on and after the date of delivery of such
notice will equal the least of: (i) $_________, (ii) the Certificate Balance,
and (iii) the Guarantee Payment Limit in effect immediately prior to the
delivery of such Nonreinstatement Notice, less any Guarantee Payments made on or
after the delivery of such Nonreinstatement Notice.
(b) The "Nonreinstatement Notice" shall mean a written notice
given by CIT to the Servicer and the Owner Trustee stating that the Guarantee
Payment Limit shall not be reinstated.
-3-
(c) "Excess Spread" shall mean the Amount Available, on each
Distribution Date on and after the Trigger Date, remaining after application to
the uses specified in Section [5.05(c)(i)-(viii)] of the Sale and Servicing
Agreement.
(d) CIT, in its sole discretion, may at any time give the
Nonreinstatement Notice.
SECTION 4. Miscellaneous.
(a) All payments by CIT under this Limited Guarantee shall be
made free and clear of and without deduction for any present or future income,
stamp or other taxes, levies, imposts, deductions, charges, fees, withholdings,
liabilities, restrictions or conditions of any nature whatsoever now or
hereafter imposed, levied, collected, assessed or withheld by any jurisdiction
or by any political subdivision or taxing authority thereof or therein, and all
interest, penalties or similar liabilities ("Taxes"); provided, however, that
CIT shall not be obligated to pay any amount allocable to Taxes (i) which the
Trust was required to withhold or (ii) which result or were incurred by reason
of the ownership of any interest in a Certificate by any non-U.S. Person which
is not eligible for a complete exemption from U.S. withholding tax on U.S.
source interest.
(b) CIT shall not exercise any rights which it may acquire by
way of subrogation hereunder, by any payment made by it hereunder or otherwise,
until such date when all amounts of principal and interest payable to the
Holders of the Notes and the Certificates shall have been paid in full. If any
amount shall be paid to CIT on account of such subrogation rights at any time
when all of the amounts of principal and interest payable to the Holders of the
Notes and the Certificates shall not have been paid in full, such amount shall
be held in trust for the benefit of the Noteholders and the Certificateholders,
shall be segregated from the other funds of CIT and shall forthwith be applied
in whole or in part against such amounts owed in accordance with the terms of
the Sale and Servicing Agreement.
(c) This Limited Guarantee is not secured by a security
interest in, pledge of or lien on any assets of CIT or any of its subsidiaries.
The Limited Guarantee is a senior, unsecured general obligation of CIT and is
not supported by any letter of credit or other credit enhancement arrangement.
(d) This Limited Guarantee may be amended from time to time by
the Company, CIT, the Servicer and the Owner Trustee, without the consent of any
of the Certificateholders, (i) to correct manifest error, to cure any ambiguity,
to correct or supplement any provisions herein or therein which may be
inconsistent with any other provisions herein or therein, as the case may be,
(ii) to add any other provisions with respect to matters or questions arising
under this Limited Guarantee which shall not be inconsistent with the provisions
of this Limited Guarantee, and (iii) to add or amend any provisions as required
by Xxxxx'x, Standard & Poor's or another national statistical rating
organization in order to maintain or improve the rating of the Certificates (it
being understood that, after the rating required by the Sale and Servicing
-4-
Agreement has been obtained, neither the Owner Trustee, the Company, CITSF or
CIT is obligated to maintain or improve such rating); provided, however, that
such action shall not, as evidenced by an opinion of counsel for CIT, adversely
affect in any material respect the interests of any Certificateholder.
This Limited Guarantee may also be amended from time to time
by the Company, CIT, the Servicer and the Owner Trustee, with the consent of
Holders of the Certificates aggregating 51% or more of the Certificate Balance
as of the preceding Determination Date, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Limited Guarantee or modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall (i) reduce
in any manner the amount of, or delay the timing of, any Guarantee Payment or
(ii) grant by contract or operation of law any defense to the payment of any
Guarantee Payment without the consent of the Holder of each Certificate affected
thereby.
CIT shall provide Xxxxx'x and Standard & Poor's with a copy of
any amendment made to this Limited Guarantee prior to the execution and delivery
thereof, and the Rating Agency Condition shall be satisfied prior to the
effective date of such amendment.
(e) This Limited Guarantee shall be construed in accordance
with and governed by the internal laws of the State of New York applicable to
contracts made and to be performed therein without regard to conflicts of law
principles. Any litigation relating to or arising out of this Limited Guarantee
shall be brought and maintained in the courts of the State of New York or in the
United States District Court for the Southern District of New York.
(f) CIT agrees that, prior to the date which is one year and
one day after the payment in full of the Notes and the Certificates it shall not
institute against, or join any other person in instituting against, the Company
or the Trust any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other proceedings under any Federal or state
bankruptcy or similar law.
(g) CIT hereby acknowledges that the Guarantee Fee and any
reimbursement to CIT for Guarantee Payments is subordinated to payments in
respect of the Notes and the Certificates, the Servicer Payment and the
reimbursement of Monthly Advances to the extent provided in the Sale and
Servicing Agreement and will be payable only if and to the extent funds are
available therefor in accordance with the Sale and Servicing Agreement. CIT
further acknowledges that the failure of CIT to receive, in whole or in part,
payment of the Guarantee Fee shall not in any way diminish CIT's obligations
hereunder and CIT hereby waives any right of set-off or counterclaim against the
Trust for the failure to receive all or any part of such Guarantee Fee or for
the failure to receive reimbursement for Guarantee Payments.
-5-
IN WITNESS WHEREOF, The CIT Group, Inc. has duly executed this Limited
Guarantee as of the day and year first written above.
THE CIT GROUP, INC.
By:________________________
Name:
Title:
-6-
