Exhibit 4.1
Form of Pooling and Servicing Agreement
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Home Equity Loan
[Senior/Subordinate]
Asset Backed Certificates
Series 199_-_
POOLING AND SERVICING AGREEMENT
among
THE CIT GROUP SECURITIZATION CORPORATION III
as Depositor,
THE CIT GROUP/CONSUMER FINANCE, INC.
as Seller and Master Servicer,
and
[TRUSTEE]
not in its individual capacity but solely as Trustee
Dated as of ___________, 199_
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS .........................................................1
SECTION 1.01. General ......................................................1
SECTION 1.02. Specific Terms................................................1
ARTICLE II ESTABLISHMENT OF TRUST; TRANSFER OF CONTRACTS......................15
SECTION 2.01. Closing .....................................................15
SECTION 2.02. Conditions of the Closing....................................15
SECTION 2.03. Acceptance by Trustee........................................16
SECTION 2.04. REMIC Designations...........................................17
SECTION 2.05. REMIC Tax Matters............................................17
SECTION 2.06. REMIC Certificate Maturity Date..............................17
ARTICLE III REPRESENTATIONS AND WARRANTIES....................................18
SECTION 3.01. Representations and Warranties Regarding
CIT Consumer Finance.........................................18
SECTION 3.02. Representations and Warranties Regarding
Each Mortgage Loan...........................................19
SECTION 3.03. Representations and Warranties Regarding
the Mortgage Loans in the Aggregate..........................21
SECTION 3.04. Representations and Warranties Regarding
the Mortgage Loan Files......................................22
SECTION 3.05. Repurchase of Mortgage Loans or Substitution of
Mortgage Loans for Breach of Representations and Warranties..22
ARTICLE IV PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS........25
SECTION 4.01. Custody of Mortgage Loans....................................25
SECTION 4.02. Filings......................................................26
SECTION 4.03. Name Change or Relocation....................................26
SECTION 4.04. Chief Executive Office.......................................26
SECTION 4.05. Costs and Expenses...........................................27
ARTICLE V SERVICING OF CONTRACTS..............................................28
SECTION 5.01. Responsibility for Mortgage Loan Administration..............28
SECTION 5.02. Standard of Care.............................................28
SECTION 5.03. Records......................................................28
SECTION 5.04. Inspection; Computer Tape....................................28
SECTION 5.05. Certificate Account..........................................29
SECTION 5.06. Enforcement..................................................31
SECTION 5.07. Trustee to Cooperate.........................................32
SECTION 5.08. Costs and Expenses...........................................32
SECTION 5.09. Maintenance of Insurance.....................................32
SECTION 5.10. REMIC Compliance.............................................33
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SECTION 5.11. Foreclosure..................................................35
ARTICLE VI REPORTS............................................................36
SECTION 6.01. Monthly Reports to the Trustee...............................36
SECTION 6.02. Certificate of Servicing Officer.............................36
SECTION 6.03. Other Data...................................................36
SECTION 6.04. Annual Report of Accountants.................................36
SECTION 6.05. Statements to Certificateholders.............................36
ARTICLE VII SERVICE TRANSFER..................................................38
SECTION 7.01. Event of Termination.........................................38
SECTION 7.02. Transfer.....................................................38
SECTION 7.03. Trustee to Act; Appointment of Successor.....................39
SECTION 7.04. Notification to Certificateholders and to Rating Agency......40
SECTION 7.05. Effect of Transfer...........................................40
SECTION 7.06. Transfer of Certificate Account..............................40
ARTICLE VIII DISTRIBUTIONS AND WITHDRAWALS FROM CERTIFICATE ACCOUNT...........42
SECTION 8.01. Monthly Distributions........................................42
SECTION 8.02. Permitted Withdrawals from the Certificate Account...........43
SECTION 8.03. Repurchase Option............................................44
[SECTION 8.04. Credit Enhancement for [Class A] [Class B] Certificates.
[Text to be provided.] ].....................................45
ARTICLE IX THE CERTIFICATES...................................................48
SECTION 9.01. The Certificates.............................................48
SECTION 9.02. Registration of Transfer and Exchange of Certificates........48
SECTION 9.03. No Charge; Disposition of Void Certificates..................51
SECTION 9.04. Mutilated, Destroyed, Lost or Stolen Certificates............51
SECTION 9.05. Persons Deemed Owners........................................52
SECTION 9.06. Access to List of Certificateholders' Names and Addresses....52
SECTION 9.07. Authenticating Agents........................................52
ARTICLE X INDEMNITIES.........................................................54
SECTION 10.01. Liabilities to Mortgagors...................................54
SECTION 10.02. Tax Indemnification.........................................54
SECTION 10.03. Master Servicer's Indemnities...............................54
SECTION 10.04. Operation of Indemnities....................................54
ARTICLE XI THE TRUSTEE........................................................55
SECTION 11.01. Duties of Trustee...........................................55
SECTION 11.02. Certain Matters Affecting the Trustee.......................56
SECTION 11.03. Trustee Not Liable for Certificates or Mortgage Loans.......57
SECTION 11.04. Rights of Certificateholders to Direct
Trustee and to Waive Events of Termination..................57
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SECTION 11.05. Master Servicer to Pay Trustee's Fees and Expenses..........61
SECTION 11.06. Eligibility Requirements for Trustee........................61
SECTION 11.07. Resignation or Removal of Trustee...........................62
SECTION 11.08. Successor Trustee...........................................62
SECTION 11.09. Merger or Consolidation of Trustee..........................60
SECTION 11.10. Mortgagor Claims............................................60
SECTION 11.11. Separate Trustees and Co-Trustees...........................61
SECTION 11.12. Trustee May Own Certificates................................62
SECTION 11.13. Agents of Trustee...........................................62
ARTICLE XII MISCELLANEOUS 65
SECTION 12.01. Master Servicer Not To Resign..............................63
SECTION 12.02. Maintenance of Officer or Agency...........................63
SECTION 12.03. Termination................................................63
SECTION 12.04. Acts of Certificateholders.................................65
SECTION 12.05. Calculations...............................................66
SECTION 12.06. Assignment or Delegation by the Master Servicer;
Merger or Consolidation of the Company, CIT Consumer
Finance or the Master Servicer.............................66
SECTION 12.07. Amendment..................................................67
SECTION 12.08. Contribution of Assets.....................................78
SECTION 12.09. Notices....................................................69
SECTION 12.10. Merger and Integration.....................................70
SECTION 12.11. Headings...................................................70
SECTION 12.12. Governing Law..............................................70
SECTION 12.13. Counterparts...............................................70
Exhibit A [FORM OF CLASS A CERTIFICATE].......................................1
Exhibit B [Form of Class B Certificate].......................................1
Exhibit C [FORM OF CLASS R CERTIFICATE].......................................1
Exhibit D [FORM OF ASSIGNMENT]................................................1
Exhibit E THE CIT GROUP/CONSUMER FINANCE, INC. CERTIFICATE OF OFFICERS........1
Exhibit F [FORM OF OPINION OF COUNSEL FOR THE CIT GROUP/
CONSUMER FINANCE, INC.]........................................................1
Exhibit G FORM OF TRUSTEE'S ACKNOWLEDGMENT AND CERTIFICATION..................1
Exhibit H THE CIT GROUP/CONSUMER FINANCE, INC. CERTIFICATE
OF SERVICING OFFICERS..........................................................1
Exhibit I-1 THE CIT GROUP/CONSUMER FINANCE, INC.
CERTIFICATE REGARDING REPURCHASED CONTRACTS....................................1
Exhibit J FORM OF INVESTMENT LETTER...........................................1
Exhibit K-1 [FORM OF TRANSFEROR'S CERTIFICATE]................................1
Exhibit L THE CIT GROUP SECURITIZATION CORPORATION III HOME
EQUITY LOAN SENIOR/SUBORDINATE ASSET BACKED CERTIFICATES,
SERIES 199_ MONTHLY REPORT.....................................................1
EXHIBIT M FORM OF TRANSFER AFFIDAVIT..........................................1
EXHIBIT N LIST OF MORTGAGE LOANS..............................................1
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AGREEMENT, dated as of _________ ___, ____, among The CIT Group
Securitization Corporation III, as Depositor (together with its permitted
successors and assigns, the "Company"), The CIT Group/Consumer Finance, Inc., a
corporation organized and existing under the laws of the State of Delaware, as
Seller and Master Servicer (in its individual capacity, "CIT Consumer Finance,"
or, together with its permitted successors and assigns, the "Master Servicer"),
and , a _____________________ organized and existing under the laws of
______________, not in its individual capacity but solely as Trustee (together
with permitted successors and assigns, the "Trustee").
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, the parties hereto agree as provided herein:
ARTICLE I
DEFINITIONS
SECTION 1.01. GeneralSECTION 1.01. General.
For the purpose of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires, the terms defined in this Article
include the plural as well as the singular, the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision, and Section
references refer to Sections of this Agreement.
SECTION 1.02. Specific TermsSECTION 1.02. Specific Terms.
"Advance Payment" means any payment by an Mortgagor in advance of the Due
Period in which it would be due under such Mortgage Loan and which payment is
not a Principal Prepayment.
"Affiliate" of any specified Person means any other Person controlling or
controlled by or under common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" or "controlled" have meanings
correlative to the foregoing.
"Agreement" means this Pooling and Servicing Agreement.
"Amount Available" means, as to any Distribution Date, an amount equal to
(a) the amount on deposit (or which would have been on deposit on such day but
for the operation of the penultimate sentence of Section 5.05(a)) in the
Certificate Account as of the close of business on the last day of the related
Due Period less (b) the sum, as of the close of business on the Business Day
preceding such Distribution Date, of (i) the Amount Held for Future
Distribution, and (ii) amounts permitted to be withdrawn by the Master Servicer
from the Certificate Account in respect of the Mortgage Loans pursuant to
clauses (b) - (g), inclusive, of Section 8.02.
"Amount Held for Future Distribution" means, as to any Distribution Date,
the total of the amounts on deposit (or which would have been on deposit on such
day but for the operation of the penultimate sentence of Section 5.05(a)) in the
Certificate Account as of the close of business on the last day of the related
Due Period on account of Advance Payments in respect of such Due Period.
"Applicants" has the meaning assigned in Section 9.06.
"Appraised Value" means, with respect to any Mortgaged Property, the value
of such Mortgaged Property as determined by a professional appraiser (who may be
an employee of CIT Consumer Finance).
"Assumption Fee" means any assumption or other similar fee paid by the
Mortgagor on a Mortgage Loan.
"Authenticating Agent" means any authenticating agent appointed pursuant to
Section 9.07.
"Book-Entry Certificate" means any Certificate registered in the name of
the Depository or its nominee, ownership of which is reflected on the books of
the Depository or on the books of a person maintaining an account with such
Depository (directly or as an indirect participant in accordance with the rules
of such Depository).
"Business Day" means any day other than (a) a Saturday or a Sunday or (b)
another day on which national banking institutions in the States of Oklahoma,
__________ or New York are authorized or obligated by law, executive order, or
governmental decree to be closed.
"Certificate" means a Home Equity Loan Asset Backed Certificate executed
and delivered by the Trustee substantially in the form of Exhibits A, B or C.
"Certificate Account" means a separate trust account maintained in the name
of the Trust in an Eligible Institution.
"Certificate Owner" means the person who is the beneficial owner of a
Book-Entry Certificate.
"Certificate Register" means the register maintained pursuant to Section
9.02.
"Certificate Registrar" or "Registrar" means the registrar appointed
pursuant to Section 9.02.
"Certificateholder" or "Holder" means the person in whose name a
Certificate is registered on the Certificate Register, except that, solely for
the purposes of giving any consent, waiver, request or demand pursuant to this
Agreement, any Class A Certificate [and any Class B Certificate] registered in
the name of the Mortgage Loan Seller, the Master Servicer or any Affiliate of
the Mortgage Loan Seller or the Master Servicer shall be deemed not to be
outstanding, and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the
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requisite Percentage Interest necessary to effect any such consent, request,
waiver or demand has been obtained unless all the Class A Certificates [or all
the Class B Certificates] are held by such Persons; provided, however, that in
determining whether the Trustee shall be protected in relying upon any such
consent, waiver, request or demand only Class A Certificates [and Class B
Certificates] which the Trustee knows to be so owned shall be so disregarded.
"Class," "Class A," ["Class B"] or "Class R" means pertaining to Class A
Certificates[, Class B Certificates] and/or Class R Certificates, as the case
may be.
"Class A Certificate" means any one of the certificates executed and
delivered by the Trustee and authenticated by the Authenticating Agent
substantially in the form set forth in Exhibit A and evidencing an interest
designated as a "regular interest" in the Trust for purposes of the REMIC
Provisions[, which certificates shall be senior to the Class B Certificates].
"Class A Certificate Balance" means, as to any Distribution Date, the
Original Class A Certificate Balance less all amounts previously distributed to
Holders of Class A Certificates on account of principal.
"Class A Interest Distribution Amount" means, as to any Distribution Date,
an amount equal to the sum of (a) one month's interest at the Class A
Pass-Through Rate on the Class A Certificate Balance and (b) the Unpaid Class A
Interest Shortfall, if any, for such Distribution Date.
"Class A Interest Shortfall" means, as to any Distribution Date, any amount
by which the amount distributed to Holders of the Class A Certificates on such
Distribution Date is less than the Class A Interest Distribution Amount for such
Distribution Date.
"Class A Pass-Through Rate" means ____% per annum, computed on the basis of
a 360-day year of twelve 30-day months.
["Class B Certificate" means any one of the certificates executed by the
Trustee and authenticated by the Authenticating Agent substantially in the form
set forth in Exhibit B hereto and evidencing an interest designated as a
"regular interest" in the Trust for purposes of the REMIC Provisions which
certificates shall be subordinate to the Class A Certificates.](1)
["Class B Certificate Balance" means, as to any Distribution Date, the
Original Class B Certificate Balance minus the sum of all amounts previously
distributed to Class B Certificateholders on account of principal.]
["Class B Enhancement Payment" means _______________.]
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(1) Class B definitions apply only wherer the regular interests in the REMIC
are represented by a senior (Class A) and a subordinated (Class B) class.
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["Class B Interest Distribution Amount" means, as to any Distribution Date,
the sum of (a) one month's interest at the Class B Pass-Through Rate on the
Class B Certificate Balance and (b) the Unpaid Class B Interest Shortfall, if
any, for such Distribution Date.]
["Class B Interest Shortfall" means, as to any Distribution Date, any
amount by which the amount distributed to Holders of Class B Certificates on
such Distribution Date is less than the Class B Interest Distribution Amount for
such Distribution Date.]
["Class B Pass-Through Rate" means ____% per annum, computed on the basis
of a 360-day year of twelve 30-day months.]
["Class B Principal Loss Liquidation Amount" means, as to any Distribution
Date prior to the Cross-over Date, the amount, if any, by which the sum of the
Class A Certificate Balance and the Class B Certificate Balance for such
Distribution Date exceeds the Pool Scheduled Certificate Balance for such
Distribution Date.]
"Class R Certificate" means any one of the Certificates executed by the
Trustee and authenticated by the Authenticating Agent substantially in the form
set forth in Exhibit C hereto and evidencing an interest designated as a
"residual interest" in the Trust for purposes of the REMIC Provisions.
"Class R Certificateholder" means the person in whose name a Class R
Certificate is registered on the Certificate Register.
"Class R Distribution Amount" means, as to any Distribution Date, the
amount, if any, payable to the Holders of the Class R Certificates pursuant to
subsection 8.01(c)(iii).
"Closing Date" means _________ __, 199_.
"Code" means the Internal Revenue Code of 1986, as amended.
"Computer Tape" means the computer tape generated by the Master Servicer
which provides information relating to the Mortgage Loans, and includes the
master file and the history file.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of the execution of this Agreement is located at the
address set forth in Section 12.09.
"Cross-over Date" means the Distribution Date on which the Class A
Certificate Balance (after giving effect to the distributions and adjustments on
the Class A Certificates on such Distribution Date) is reduced to zero.
"Cut-off Date" means _____________, 199_.
"Cut-off Date Pool Certificate Balance" means the aggregate of the Cut-off
Date Certificate Balances of the Mortgage Loans.
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"Cut-off Date Certificate Balance" means, as to any Mortgage Loan, the
unpaid Scheduled Certificate Balance thereof at the Cut-off Date.
"Defaulted Mortgage Loan" means, with respect to any Due Period, a Mortgage
Loan in respect of which payments exceeding $25 in the aggregate were delinquent
120 days or more as of the last day of such Due Period, provided that any
Mortgage Loan in respect of which such delinquencies were permitted by the
Soldiers' and Sailors' Relief Act of 1940 shall not be deemed a Defaulted
Mortgage Loan.
"Depository" means the initial Depository, The Depository Trust Company,
the nominee of which is CEDE & CO., and any permitted successor depository. The
Depository shall at all times be a "clearing corporation" defined in Section
8-102(3) of the Uniform Commercial Code of the State of New York.
"Depository Participant" means a broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date" means the third Business Day prior to each
Distribution Date during the term of this Agreement.
"Distribution Date" means the _____________ day of each calendar month
during the term of this Agreement, or if such day is not a Business Day, the
next succeeding Business Day, commencing __________ __, 199_.
"Due Date" means, as to any Mortgage Loan, the date of the month on which
the scheduled monthly payment for such Mortgage Loan is due.
"Due Period" means, as to any Distribution Date, the period commencing on
the 26th day of the month (or, if the 25th day of such month is not a Business
Day, the day following the first preceding Business Day) in the second month
preceding the month of such Distribution Date (or the Cut-off Date, in the case
of the first Distribution Date) and ending on the 25th day of the month (or, if
such day is not a Business Day, the preceding Business Day) in the month
preceding the month of such Distribution Date.
"Electronic Ledger" means the electronic master record of installment sales
contracts of the Master Servicer.
"Eligible Institution" means the Trustee or any depository institution or
trust company (which may be the Trustee or an Affiliate of the Trustee)
organized under the laws of the United States or any state, the deposits of
which are insured to the full extent permitted by law by the Bank Insurance Fund
(presently administered by the Federal Deposit Insurance Corporation), which is
subject to supervision and examination by federal or state authorities and whose
short term securities or unsecured long-term debt has been rated [A-1 or higher
by Standard & Poor's and P-1 or higher by Moody's] in the case of short term
securities, or in one of the two highest rating categories by [Standard & Poor's
and Moody's] in the case of unsecured long-term debt.
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"Eligible Investments" has the meaning assigned in Section 5.05(b).
"Eligible Master Servicer" means CIT Consumer Finance or any Person
qualified to act as Master Servicer of the Mortgage Loans under applicable
federal and state laws and regulations, which Person services not less than
$100,000,000 in outstanding principal amount of mortgage loans.
"Eligible Substitute Mortgage Loan" means, as to any Replaced Mortgage Loan
for which such Eligible Substitute Mortgage Loan is being substituted pursuant
to Section 3.05(b), a Mortgage Loan that (a) as of the date of its substitution,
satisfies all of the representations and warranties (which, except when
expressly stated to be as of origination, shall be deemed to be determined as of
the date of its substitution rather than as of the Cut-off Date or the Closing
Date) in Section 3.02 and does not cause any of the representations and
warranties in Section 3.03, after giving effect to such substitution, to be
incorrect, (b) after giving effect to the scheduled payment due in the month of
such substitution, has a Scheduled Certificate Balance that is not greater than
the Scheduled Certificate Balance of such Replaced Mortgage Loan, (c) has a
Mortgage Loan Rate that is at least equal to the Mortgage Loan Rate of such
Replaced Mortgage Loan and (d) has a remaining term to scheduled maturity that
is not greater than the remaining term to scheduled maturity of the Replaced
Mortgage Loan. Notwithstanding the foregoing, in the event that on any date more
than one Eligible Substitute Mortgage Loan is substituted for one or more
Replaced Mortgage Loans, the requirement set forth in clause (b) above with
respect to the Scheduled Certificate Balance may be satisfied if the aggregate
of the Scheduled Certificate Balances of such Eligible Substitute Mortgage Loans
is not greater than the aggregate of the Scheduled Certificate Balances of such
Replaced Mortgage Loans, the requirement set forth in clause (c) above with
respect to the Mortgage Loan Rate may be satisfied if the weighted average
Mortgage Loan Rate of such Eligible Substitute Mortgage Loans is at least equal
to the weighted average Mortgage Loan Rate of such Replaced Mortgage Loans; and
the requirement set forth in clause (d) above with respect to remaining term to
scheduled maturity may be satisfied if the weighted average remaining term to
scheduled maturity of such Eligible Substitute Mortgage Loans is not greater
than the weighted average remaining term to scheduled maturity of such Replaced
Mortgage Loans.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Termination" has the meaning assigned in Section 7.01.
"Extension Fee" means any extension or other similar fee paid by the
Mortgagor on a Mortgage Loan.
"Final Distribution Date" means the Distribution Date on which the final
distribution in respect of Certificates is made pursuant to Section 12.03.
"Formula Principal Distribution Amount" means, as to any Distribution Date,
the sum of (i) in the case of each Mortgage Loan which is a Precomputed Mortgage
Loan, all scheduled payments of principal due on each Outstanding Mortgage Loan
during the Due Period which ends during the month preceding the month in which
such Distribution Date occurs as
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specified in the amortization schedule at the time applicable thereto (after
adjustments for previous Partial Principal Prepayments but before any adjustment
to such amortization schedule by reason of any bankruptcy of an Mortgagor or
similar proceeding or any moratorium or similar waiver or grace period) and, in
the case of each Mortgage Loan which is a simple interest Mortgage Loan, any
payments in respect of principal received during such Due Period; (ii) all
Partial Principal Prepayments applied and all Principal Prepayments in Full
received during such preceding Due Period; (iii) the Scheduled Certificate
Balance of each Mortgage Loan that became a Liquidated Mortgage Loan during such
preceding Due Period; and (iv) the Scheduled Certificate Balance of each
Mortgage Loan which was repurchased immediately prior to such Distribution Date
pursuant to Section 3.05.
"Hazard Insurance Policy" means, with respect to each Mortgage Loan, the
policy of fire and extended coverage insurance (and federal flood insurance, if
the Mortgaged Property is located in a federally designated special flood area)
required to be maintained for the related Mortgaged Property, as provided in
Section 5.09, and which, as provided in said Section 5.09, may be a blanket
policy maintained by the Master Servicer in accordance with the terms and
conditions of said Section 5.09.
"Holder" has the same meaning as "Certificateholder".
"Independent" means, with respect to any specified Person, any person or
firm rendering an opinion at Closing or any Person who (a) is in fact
independent of the specified Person, (b) does not have any direct financial
interest or any material indirect financial interest in the specified Person or
any Affiliate of the specified Person (other than acting as outside counsel for
the specified Person or such Affiliate), and (c) is not connected with the
specified Person as an officer, employee, promoter, underwriter, trustee,
partner, director (other than a law firm a member of which is a director) or
person performing similar functions. Except with respect to any person or firm
rendering an opinion at the Closing, whenever it is herein provided that any
Independent Person's opinion or certificate shall be furnished to the Trustee,
such person shall be approved by the Trustee and such opinion or certificate
shall state that the signer has read this definition and that the signer is
independent within the meaning hereof.
"Insurance Proceeds" means proceeds paid by any insurer pursuant to any
insurance policy or contract.
"Late Payment Fees" means late payment fees paid by Mortgagors on Mortgage
Loans.
"Liquidated Mortgage Loan" means any Defaulted Mortgage Loan as to which
the Master Servicer has determined that all amounts which it expects to recover
from or on account of such Mortgage Loan have been recovered.
"Liquidation Expenses" means out-of-pocket expenses (exclusive of any
overhead expenses) which are incurred by the Master Servicer in connection with
the liquidation of any Defaulted Mortgage Loan.
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"Liquidation Proceeds" means cash (including Insurance Proceeds) received
in connection with the liquidation of Defaulted Mortgage Loans, whether through
foreclosure sale or otherwise.
"List of Mortgage Loans" means the list attached hereto as Exhibit N
identifying each Mortgage Loan constituting part of the corpus of the Trust,
which list (a) identifies each Mortgage Loan and (b) sets forth as to each
Mortgage Loan (i) the Cut-off Date Certificate Balance, (ii) the amount of
monthly payment due from the Mortgagor, (iii) the Mortgage Loan Rate and (iv)
the maturity date.
"Loan-to-Value Ratio" means, with respect to any Mortgage Loan, the
original principal amount thereof divided by the Original Value of the Mortgaged
Property.
"Monthly Report" has the meaning assigned in Section 6.05. The forms of the
Monthly Report for the Certificates are attached as Exhibit L hereto.
"Monthly Servicing Fee" means, as to any Distribution Date, one-twelfth of
the product of ____% and the Pool Scheduled Certificate Balance for such
Distribution Date.
["Moody's" means Xxxxx'x Investors Service Inc. or any successor thereto.]
"Mortgage" means the mortgage or deed of trust creating a first lien on an
estate in fee simple in the real property securing a Mortgage Loan.
"Mortgaged Property" means the property subject to a Mortgage.
"Mortgage Loan(s)" means one or more of the mortgage loans described in the
List of Mortgage Loans, which constitute part of the corpus of the Trust, and
which Mortgage Loans are to be assigned by the Company to the Trustee;
including, without limitation, all related security interests, collateral,
liens, insurance policies and guarantees of the obligations of the related
Mortgagor and any and all rights to receive payments which are due, in the case
of Precomputed Mortgage Loans, or received, in the case of simple interest
Mortgage Loans, pursuant thereto from and after the Cut-off Date, but excluding
any rights to receive payments which are due, in the case of Precomputed
Mortgage Loans, or received, in the case of Simple Interest contracts, pursuant
thereto prior to the Cut-off Date.
"Mortgage Loan File" means, as to each Mortgage Loan (a) the original copy
of the Mortgage Loan, (b) the original Mortgage and [(c) each assignment of the
Mortgage Loan evidencing the chain of title of the Mortgage Loan from the
originator thereof (if other than CIT Consumer Finance) to CIT Consumer
Finance,] and (d) any extension, modification or waiver agreement(s).
"Mortgage Loan Holders' Errors and Omissions Protection Policy" means the
contract holders' errors and omissions policy maintained by the Master Servicer
or any similar replacement policy, if any, pursuant to Section 5.09(c).
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["Mortgage Loan Originator" means _____________________.]
"Mortgage Loan Purchase Agreement" means the Mortgage Loan Purchase
Agreement, dated as of __________ __, 199_ between CIT Consumer Finance and the
Company, providing for the sale of the Mortgage Loans from CIT Consumer Finance
to the Company.
"Mortgage Loan Rate" means, with respect to any particular Mortgage Loan,
the rate of interest specified in that Mortgage Loan and computed on a
precomputed basis with an actuarial rebate of unearned interest upon prepayment,
provided that the rebate upon prepayment of Mortgage Loans originated in
California and Oklahoma may be computed on the simple interest method if so
required by applicable law or regulations.
"Mortgage Loan Seller" means CIT Consumer Finance.
"Mortgagor" means each Person who is indebted under a Mortgage Loan.
"Net Liquidation Loss" means, with respect to a Liquidated Mortgage Loan,
the amount, if any, by which (a) the outstanding Certificate Balance of such
Liquidated Mortgage Loan plus accrued and unpaid interest thereon to the date on
which such Liquidated Mortgage Loan became a Liquidated Mortgage Loan exceeds
(b) the Net Liquidation Proceeds for such Liquidated Mortgage Loan.
"Net Liquidation Proceeds" means, as to any Liquidated Mortgage Loan,
Liquidation Proceeds net of Liquidation Expenses.
"NRSRO" means any nationally recognized statistical rating organization.
"Officers' Certificate" means a certificate signed by the chairman of the
board, president or any vice president of the Master Servicer and delivered to
the Trustee.
"Opinion of Counsel" means a written opinion of counsel acceptable to the
Trustee, who may be counsel for the Master Servicer, except that any opinion of
counsel relating to the qualification of the Trust as a REMIC or compliance with
the REMIC Provisions must be an opinion of counsel Independent with respect to
the Company and the Master Servicer.
"Original Class A Certificate Balance" means $_____________.
["Original Class B Certificate Balance" means $____________.]
["Originating Institution" means _________________.]
["Original Value" means _________________.]
"Outstanding Mortgage Loan" means, as to any Due Period, a
Mortgage Loan which was not the subject of a Principal Prepayment in Full prior
to such Due Period, which did not
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become a Liquidated Mortgage Loan prior to such Due Period, which was not
purchased prior to such Due Period pursuant to Section 3.05 and the scheduled
maturity date (as it existed on the Cut-off Date) of which has not occurred
prior to such Due Period.
"Ownership Interest" means with respect to any Certificate, any ownership
or security interest in such Certificate, including any interest in such
Certificate as the Holder thereof and any other interest therein, whether direct
or indirect, legal or beneficial.
"Partial Principal Prepayment" means (a) any Principal Prepayment other
than a Principal Prepayment in Full and (b) any cash amount deposited in the
Certificate Account pursuant to the proviso in Section 3.05(a) or pursuant to
Section 3.05(b).
"Paying Agent" has the meaning assigned in Section 8.01(e).
"Percentage Interest" means, as to any Certificate, the percentage interest
evidenced thereby in distributions made on the related Class, such percentage
interest being equal to, in the case of the Class A Certificates, the percentage
(carried to eight places) obtained from dividing the denomination of such
Certificate by the aggregate denomination of all Class A Certificates (which
equals the Original Class A Certificate Balance) [and the aggregate denomination
of all Class B Certificates (which equals the Original Class B Certificate
Balance) in the case of the Class B Certificates] and, in the case of the Class
R Certificates, being equal to the percentage specified on the face of such
Certificate. The aggregate Percentage Interests for each Class of Certificates
shall equal 100%.
"Permitted Transferee" means, as to any Class R Certificateholder or any
other prospective transferee of a Class R Certificate, any Person other than (a)
the United States, a State or any political subdivision thereof, any possession
of the United States, a foreign government, an international organization, or
any agency or instrumentality of any of the foregoing, (b) an organization
(other than a cooperative described in Section 521 of the Code) which would not
be subject to tax under the Code (including the tax on unrelated business
taxable income, as defined in Section 512(a)(1) of the Code) on any excess
inclusions (as defined in Section 860E(c)(1) of the Code) with respect to any
Class R Certificate, or (c) an organization which is engaged in furnishing
electrical energy, or providing telephone service, to persons in rural areas (as
described in Section 1381(a)(2)(C) of the Code). The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Code Section 7701 or any successor provision. A corporation will not be treated
as an instrumentality of the United States or of any State or political
subdivision thereof, if all of the activities are subject to tax, and, with the
exception of the Federal Home Loan Mortgage Corporation, a majority of its board
of directors is not selected by such governmental unit.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
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"Pool Factor" means, at any time, the percentage derived from a fraction,
the numerator of which is the aggregate Certificate Balance of each Class of
Certificates at such time and the denominator of which is the Cut-off Date Pool
Certificate Balance.
"Pool Scheduled Certificate Balance" means, as to any Distribution Date,
the aggregate of the Scheduled Certificate Balance of each Mortgage Loan that
was an Outstanding Mortgage Loan on the last day of the Due Period next
preceding such Distribution Date.
"Precomputed Mortgage Loan" means any Mortgage Loan as to which its
scheduled monthly payment for each Due Date is, by the terms thereof, applied to
interest and principal in accordance with a precomputed allocation, regardless
of whether such scheduled monthly payment is paid on such Due Date; provided
that a Rule of 78s Mortgage Loan shall be deemed to be a Precomputed Mortgage
Loan.
"Principal Prepayment" means a payment or other recovery of principal on a
Mortgage Loan (exclusive of Liquidation Proceeds) which is received in advance
of its Due Date and applied upon receipt (or, in the case of a Partial Principal
Prepayment, upon the next scheduled payment date on such Mortgage Loan) to
reduce the outstanding principal amount due on such Mortgage Loan prior to the
date or dates on which such principal amount is due.
"Principal Prepayment in Full" means any Principal Prepayment of the entire
Certificate Balance of a Mortgage Loan.
"Qualified Bank" means any depositary institution whose unsecured long-term
debt is rated at least __ by Rating Agency.
["Qualified Institutional Buyer" shall have the meaning specified in Rule
144A.]
"Rating Agency" means _________________ or any successor thereto; provided
that if [Rating Agency] no longer has a rating outstanding on any Class of the
Certificates, then references herein to [Rating Agency] shall be deemed to refer
to the NRSRO then rating any Class of the Certificates (or, if more than one
such NRSRO is then rating any Class of the Certificates, to such NRSRO as may be
designated by the Master Servicer), and references herein to ratings by or
requirements of [Rating Agency] shall be deemed to have the equivalent meanings
with respect to ratings by or requirements of such NRSRO.
"Record Date" means the last Business Day of any calendar month.
"REMIC" means a "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
"REMIC Certificate Maturity Date" means the "latest maturity date" of the
Class A Certificates [and Class B Certificates] as that term is defined in
Section 2.06.
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"REMIC Change of Law" means any proposed, temporary or final regulation,
revenue ruling, revenue procedure or other official announcement or
interpretation relating to the REMIC and the REMIC Provisions issued after the
Closing Date.
"REMIC Provisions" means provisions of the federal income tax law and the
applicable state and local law relating to REMICs and related provisions, and
regulations promulgated thereunder, as the foregoing may be in effect from time
to time.
"REO Disposition" means a disposition of REO Property, as described in
Section 5.10.
"REO Property" means any Mortgaged Property acquired in a foreclosure.
"Replaced Mortgage Loan" has the meaning given in Section 3.05(b).
"Repurchase Event" shall mean (a) any Mortgage Loan being subject to any
right of rescission, setoff, counterclaim or defense, including the defense of
usury, (b) the operation of any of the terms of any Mortgage Loan or the
exercise of any right thereunder (i) rendering such Mortgage Loan unenforceable
in whole or in part or (ii) subjecting such Mortgage Loan to any right of
rescission, setoff, counterclaim or defense, including the defense of usury; and
in each case such condition materially adversely affects the Trust's interest in
such Mortgage Loan.
"Repurchase Price" means, with respect to a Mortgage Loan to be repurchased
hereunder, an amount equal to the remaining principal amount outstanding on such
Mortgage Loan on the date of repurchase plus accrued and unpaid interest thereon
at its Mortgage Loan Rate up to the Due Date in the month of such repurchase.
"Responsible Officer" means, with respect to the Trustee, the chairman and
any vice chairman of the board of directors, the president, the chairman and
vice chairman of any executive committee of the board of directors, every vice
president, assistant vice president, the secretary, every assistant secretary,
cashier or any assistant cashier, controller or assistant controller, the
treasurer, every assistant treasurer, every trust officer, assistant trust
officer and every other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by persons who at the time shall
be such officers, respectively, or to whom a corporate trust matter is referred
because of knowledge of, familiarity with, and authority to act with respect to
a particular matter.
["Rule 144A" shall mean Rule 144A under the Securities Act, as such Rule
may be amended from time to time.]
"Scheduled Certificate Balance" means (a) as to any Mortgage Loan which as
a Precomputed Mortgage Loan and any Distribution Date or the Cut-off Date, the
Certificate Balance of such Mortgage Loan as of the Due Date in the Due Period
next preceding such Distribution Date or as of the Due Date next preceding the
Cut-off Date, as specified in the amortization schedule at the time relating
thereto (before any adjustment to such amortization schedule by reason of any
bankruptcy of an Mortgagor or similar proceeding or any moratorium or similar
waiver or grace
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period), after giving effect to any previous Partial Principal Prepayments and
to the payment of principal due on such Due Date and irrespective of any
delinquency in payment by, or extension granted to, the related Mortgagor, and
(b) as to any Mortgage Loan which is a simple interest Mortgage Loan and any
Distribution Date or the Cut-off Date, the unpaid Certificate Balance thereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Service Transfer" has the meaning assigned in Section 7.02.
"Servicing Fee" means, as to any Distribution Date, the sum of (a) the
Monthly Servicing Fee for such Distribution Date, (b) any Late Payment Fees paid
during the preceding calendar month, (c) any Extension Fees paid during the
preceding calendar month, (d) any Assumption Fees paid during the preceding
calendar month, and (e) any net investment earnings due to the Master Servicer
as of such Distribution Date.
"Servicing Officer" means any officer of the Master Servicer involved in,
or responsible for, the administration and servicing of Mortgage Loans whose
name appears on a list of servicing officers appearing in an Officers'
Certificate furnished to the Trustee by the Master Servicer, as the same may be
amended from time to time.
"Simple Interest Mortgage Loan" means a Mortgage Loan as to which interest
is calculated each day on the basis of the actual Certificate Balance
outstanding on such day.
["Standard & Poor's" means Standard & Poor's Corporation or any successor
thereto.]
"Transfer" means any direct or indirect transfer or sale of any Ownership
Interest in a Certificate.
"Transferee" means any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Treasury Regulations" means any proposed, temporary or final regulation
promulgated under the Code.
"Trust" means the trust created by this Agreement, the corpus of which
consists of (a) all the rights, benefits, and obligations arising from and in
connection with each Mortgage Loan and any related Mortgage, (b) all rights
under any Hazard Insurance Policy relating to a Mortgaged Property securing a
Mortgage Loan for the benefit of the creditor of such Mortgage Loan and proceeds
from any Mortgage Loan Holders' Errors and Omissions Protection Policy and any
blanket hazard policy to the extent such proceeds relate to any Mortgaged
Property, (c) all remittances, deposits and payments made into the Certificate
Account and amounts in the Certificate Account, (d) all proceeds in any way
derived from any of the foregoing items and (e) all documents contained in the
Mortgage Loan Files [and (f) [description of credit enhancement, if any]].
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"Trustee's Fee" means the fees and expenses of the Trustee as described in
Section 11.05.
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction.
"Unpaid Class A Interest Shortfall" means, as to any Distribution Date, the
amount, if any, of the Class A Interest Shortfall for the prior Distribution
Date, plus accrued interest (to the extent payment thereof is legally
permissible) at the Class A Pass-Through Rate on the amount thereof from such
prior Distribution Date to such current Distribution Date.
["Unpaid Class B Interest Shortfall" means, as to any Distribution Date,
the amount, if any, of the Class B Interest Shortfall for the prior Distribution
Date, plus accrued interest (to the extent payment thereof is legally
permissible) at the Class B Pass-Through Rate on the amount thereof from such
prior Distribution Date to such current Distribution Date.]
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ARTICLE II
ESTABLISHMENT OF TRUST; TRANSFER OF CONTRACTS
SECTION 2.01. Closing.
(a) There is hereby created, by the Company as settlor, a separate
trust which shall be known as Home Equity Loan Asset Backed Certificate Trust
199_. [By the execution and delivery of this Agreement, the Company has agreed
that it will elect, or cause an election to be made, to treat the pool of assets
comprising the Trust as a REMIC.] The Trust shall be administered pursuant to
the provisions of this Agreement for the benefit of Certificateholders.
(b) On the Closing Date, the Company shall sell, transfer, assign, set
over and otherwise convey to the Trust by execution of an assignment
substantially in the form of Exhibit D hereto (i) all the right, title and
interest of the Company in and to the Mortgage Loans, including, without
limitation, the security interest created thereby and any related Mortgages and
all interest and principal received by the Company on or with respect to the
Mortgage Loans (other than principal and interest due on the Mortgage Loans
before the Cut-off Date or the date of origination, if later), (ii) all rights
under any Hazard Insurance Policy relating to a Mortgaged Property securing a
Mortgage Loan for the benefit of the creditor of such Mortgage Loan, (iii) the
proceeds from any Mortgage Loan Holders' Errors and Omissions Protection Policy
and all rights under any blanket hazard insurance policy to the extent they
relate to the Mortgaged Properties, (iv) all documents contained in the Mortgage
Loan Files, and (v) all proceeds in any way derived from any of the foregoing.
The parties intend that the conveyance of the Company's right, title and
interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute an absolute sale.
SECTION 2.02. Conditions of the Closing
On or before the Closing Date, the Master Servicer shall deliver the
following documents to the Trustee:
(a) The List of Mortgage Loans.
(b) A certificate of officers of CIT Consumer Finance, substantially in the
form of Exhibit E hereto.
(c) Opinions of counsel for CIT Consumer Finance, substantially in the form
of Exhibit F hereto.
(d) A letter from _________________, or another nationally recognized
accounting firm that is Independent with respect to CIT Consumer Finance,
stating that such firm has reviewed the Mortgage Loans on a statistical sampling
basis [and, based on such sampling, concluding that the Mortgage Loans conform
in all material respects to the List of Mortgage Loans, generally to a
confidence level of ____%, with an error rate of ____%, specifying those
Mortgage Loans which do not so conform].
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(e) Copies of resolutions of the board of directors of CIT Consumer Finance
approving the execution, delivery and performance of this Agreement and the
transactions contemplated hereunder.
(f) Officially certified recent evidence of due organization and good
standing of CIT Consumer Finance.
(g) Evidence of filing with the appropriate office in the following
jurisdictions of the following UCC-1 financing statements, each listing the
Mortgage Loans: (i) UCC-1 financing statement executed by CIT Consumer Finance
as debtor, naming the Company as secured party and filed in [New Jersey and
Oklahoma] to perfect the sale from CIT Consumer Finance to the Company; (ii)
UCC-1 financing statement executed by the Company as debtor, naming the Trustee
as secured party and filed in [New Jersey and Oklahoma] to perfect the sale from
the Company to the Trustee and (iii) such other filings under the UCC as may be
appropriate.
(h) A blanket assignment of the Mortgage Loans for each of the transfers
specified in Section 2.02(g).
(i) An Officers' Certificate listing the Master Servicer's Servicing
Officers.
(j) An Officers' Certificate stating that the Master Servicer has reviewed
each Mortgage Loan and Mortgage Loan File and confirming that each Mortgage Loan
and Mortgage Loan File conforms in all material respects to the List of Mortgage
Loans, that each Mortgage Loan File is complete in all material respects, and
that each Mortgaged Property securing a Mortgage Loan is covered by a Hazard
Insurance Policy as required by Section 3.02(f).
(k) Letter[s] from ______________ confirming that the Class __ Certificates
have been assigned a rating of "__".
[(l) Letters from [Rating Agency] confirming that the Class ___
Certificates have been assigned a rating of "___".]
(m) Evidence of deposit in the Certificate Account of all funds received
with respect to the Mortgage Loans from the Cutoff Date to the Closing Date,
other than amounts due before the Cutoff Date, together with an Officer's
Certificate to the effect that such amount is correct.
(n) Any other documents or certificates that the Trustee may reasonably
request.
SECTION 2.03. Acceptance by TrusteeSECTION 2.03. Acceptance by Trustee. On
the Closing Date, if the conditions set forth in Section 2.02 have been
satisfied, the Trustee shall deliver a certificate to the Company substantially
in the form of Exhibit G hereto acknowledging conveyance of the Mortgage Loans,
Mortgage Loan Files to the Trustee and declaring that the Trustee, through the
Master Servicer, as custodian, pursuant to Section 4.01 hereof, will hold all
Mortgage Loans that have been delivered in trust, upon the trusts herein set
forth, for the use and benefit of all Certificateholders, and shall issue
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to or upon the order of the Company Certificates representing ownership of a
beneficial interest in 100% of the Trust.
SECTION 2.04. REMIC Designations
The Closing Date is hereby designated as the "start-up day" of the REMIC
within the meaning of Section 860G(a)(9) of the Code. The Company hereby
designates each of the Class A Certificates [and the Class B Certificates] as a
class of "regular interests", and the Class R Certificates as the single class
of "residual interests" in the Trust for purposes of the REMIC Provisions.
SECTION 2.05. REMIC Tax Matters
The tax year of the Trust shall be the calendar year, and the Trust shall
use the accrual method of reporting income and loss.
SECTION 2.06. REMIC Certificate Maturity Date
Solely for purposes of satisfying Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, and based upon certain assumptions described below, the
"latest possible maturity date" of each of the Class A [and Class B]
Certificates is no later than __________ __, ____. The foregoing date represents
the date by which the Certificates would be reduced to zero as determined under
a hypothetical scenario which assumes, among other things, that (i) no scheduled
interest and principal payments on the Mortgage Loans are received after the
respective Due Date, (ii) there are no principal prepayments and (iii) the
Company and the Master Servicer will not exercise its option to purchase the
Certificates pursuant to Section 8.03 of this Agreement and thereby cause a
termination of the Trust pursuant to Section ______ of this Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties Regarding CIT Consumer
Finance.
CIT Consumer Finance represents and warrants that:
(a) Organization and Good Standing. CIT Consumer Finance 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 Consumer
Finance 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 Consumer
Finance.
(b) Authorization; Binding Obligations. CIT Consumer Finance has the power
and authority to make, execute, deliver and perform this Agreement and all of
the transactions contemplated under this Agreement, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of CIT Consumer Finance 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 Consumer Finance 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 Agreement 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 Consumer Finance.
(d) No Violations. The execution, delivery and performance of this
Agreement by CIT Consumer Finance 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 Consumer Finance, or constitute a material breach
of any mortgage, indenture, contract or other agreement to which CIT Consumer
Finance is a party or by which CIT Consumer Finance 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 Consumer Finance threatened, against CIT Consumer Finance or any of its
properties or with respect to this Agreement or the Certificates which, if
adversely determined, would in the opinion of CIT Consumer Finance have a
material adverse effect on the transactions contemplated by this Agreement.
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SECTION 3.02. Representations and Warranties Regarding Each Mortgage Loan
The Mortgage Loans have been sold by CIT Consumer Finance to the Company
pursuant to the Mortgage Loan Purchase Agreement. In connection with such sale,
CIT Consumer Finance made the representations and warranties in Sections 3.02,
3.03 and 3.04 to the Company and assumed the obligations in Section 3.05. As a
condition of the purchase by the Company, the Company has required that CIT
Consumer Finance make such representations and warranties directly to the
Trustee and the Certificateholders so that the Trustee may recover directly
against CIT Consumer Finance on such representations and warranties rather than
indirectly through claims by the Company against CIT Consumer Finance.
Consequently, CIT Consumer Finance represents and warrants to the Trustee and
the Certificateholders as to each Mortgage Loan as of the Closing Date (except
as otherwise expressly stated):
(a) List of Mortgage Loans. The information set forth in the List of
Mortgage Loans is true and correct as of its date.
(b) Payments. As of the Cut-off Date, the scheduled payment of principal
and interest for its Due Date next preceding the Cut-off Date was made by or on
behalf of the Mortgagor (without any advance from CIT Consumer Finance or any
Person acting at the request of CIT Consumer Finance) or was not delinquent for
more than 60 days.
(c) No Waivers. The terms of the Mortgage Loan have not been waived,
altered or modified in any respect, except by instruments or documents
identified in the Mortgage Loan File.
(d) Binding Obligation. The Mortgage Loan is the legal, valid and binding
obligation of the Mortgagor thereunder and is enforceable in accordance with its
terms, except as such enforceability may be limited by laws affecting the
enforcement of creditors' rights generally.
(e) No Defenses. No right of rescission, setoff, counterclaim or defense,
including the defense of usury, has been asserted with respect to the Mortgage
Loan.
(f) Insurance. The Mortgaged Property securing the Mortgage Loan is or will
be covered by a Hazard Insurance Policy in the amount required by Section 5.09.
All premiums due as of the Closing Date on such insurance have been paid in
full.
(g) Origination. The Mortgage Loan was [either (i) was purchased by CIT
Consumer Finance or an Originating Institution in the ordinary course of its
business, (ii) originated by an Originating Institution in the ordinary course
of its business or (iii)] originated by CIT Consumer Finance in the ordinary
course of its business.
(h) Lawful Assignment. The Mortgage Loan was not originated in and is not
subject to the laws of any jurisdiction whose laws would make the transfer of
the Mortgage Loan to the Company under the Mortgage Loan Purchase Agreement, to
the Trustee under this Agreement or pursuant to transfers of Certificates, or
the ownership of the Mortgage Loans by the Trust, unlawful.
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(i) Compliance with Law. All requirements of any federal, state or local
law, including, without limitation, usury, truth in lending and equal credit
opportunity laws, applicable to the Mortgage Loan have been complied with and
such compliance is not affected by the Trust's ownership of the Mortgage Loans,
and CIT Consumer Finance shall for at least the period of this Agreement,
maintain in its possession, available for the Trustee's inspection, and shall
deliver to the Trustee upon demand, evidence of compliance with all such
requirements.
(j) Mortgage Loan in Force. The Mortgage Loan has not been satisfied or
subordinated in whole or in part or rescinded, and the Mortgaged Property
securing the Mortgage Loan has not been released from the lien of the Mortgage
Loan in whole or in part.
(k) Valid Security Interest. The Mortgage Loan creates a valid and
enforceable perfected first priority security interest in favor of CIT Consumer
Finance [(or, if CIT Consumer Finance is not the Mortgage Loan Originator, such
Mortgage Loan Originator)] in the Mortgaged Property covered thereby as security
for payment of the Cut-off Date Certificate Balance of such Mortgage Loan[,
which security interest has been validly and effectively assigned to CIT
Consumer Finance]. CIT Consumer Finance has assigned all of its right, title and
interest in such Mortgage Loan, including the security interest in the Mortgaged
Property covered thereby, to the Company, and the Company has assigned all of
its right, title and interest in such Mortgage Loan and related Mortgaged
Property to the Trustee. Subject to the effect of Section 4.02, the Trustee has
and will have a valid and perfected and enforceable first priority security
interest in such Mortgaged Property. The Trustee, pursuant to the sale in
Section 2.01, has and will have a valid and perfected ownership interest in such
Mortgage Loan. Each Mortgage is a valid first lien on real property in favor of
CIT Consumer Finance [(or, if CIT Consumer Finance is not the Mortgage Loan
Originator, such Mortgage Loan Originator)] securing the amount owed by the
Mortgagor under the Mortgage Loan subject only to (i) the lien of current real
property taxes and assessments, (ii) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date of
recording of such Mortgage, such exceptions appearing of record being acceptable
to mortgage lending institutions generally in the area wherein the property
subject to the Mortgage is located or specifically reflected in the appraisal
obtained in connection with the origination of the related Mortgage Loan
obtained by the Originator and (iii) other matters to which like properties are
commonly subject which do not materially interfere with the benefits of the
security intended to be provided by such Mortgage. CIT Consumer Finance has
assigned to the Company, and the Company has assigned to the Trustee, all of its
right, title and interest in such Mortgage. Subject to the effect of Section
4.02, the Trustee has and will have a valid and perfected and enforceable first
priority security interest in such Mortgage. The Trustee, pursuant to the sale
in Section 2.01, has and will have a valid and perfected ownership interest in
such Mortgage.
(l) Capacity of Parties. All parties to the Mortgage Loan had legal
capacity to execute the Mortgage Loan.
(m) Good Title. CIT Consumer Finance has not sold, assigned or pledged the
Mortgage Loan to any person other than the Company and prior to the transfer of
the Mortgage Loan by CIT Consumer Finance to the Company and the Company to the
Trust, CIT Consumer Finance had good and marketable title thereto free and clear
of any encumbrance, equity, loan,
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pledge, charge, claim or security interest and was the sole owner thereof with
full right to transfer the Mortgage Loan to the Company. The Company paid fair
value to CIT Consumer Finance for the Mortgage Loan.
(n) No Defaults. As of the Cut-off Date (or the date of origination, if
later), there was no default, breach, violation or event permitting acceleration
existing under the Mortgage Loan and no event which, with notice and the
expiration of any grace or cure period, would constitute such a default, breach,
violation or event permitting acceleration under such Mortgage Loan (except
payment delinquencies permitted by clause (b) above). CIT Consumer Finance has
not waived any such default, breach, violation or event permitting acceleration
except payment delinquencies permitted by clause (c) above.
(o) No Liens. As of the Closing Date there are, to the best of CIT Consumer
Finance's knowledge, no liens or claims which have been filed for work, labor or
materials affecting the Mortgaged Property securing the Mortgage Loan which are
or may be liens prior to, or equal or coordinate with, the lien of the Mortgage
Loan.
(p) Equal Installments. The Mortgage Loan [has a fixed Mortgage Loan Rate
and provides for level monthly payments which fully amortize the loan over its
term].
(q) Enforceability. The Mortgage Loan contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the collateral of the benefits of the
security, except as enforceability of such provisions may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by the availability of equitable remedies.
(r) Loan-to-Value Ratio. At the time of their origination, (i) all [but
__%] of the Mortgage Loans had Loan-to-Value Ratios not greater than __% and
(ii) each of the Mortgage Loans had a Loan-to-Value Ratio not greater than 125%.
(s) Qualified Mortgage for REMIC. Each Mortgage Loan is a "qualified
mortgage" under Section 860G(a)(3) of the Code.
SECTION 3.03. Representations and Warranties Regarding the Mortgage Loans
in the AggregateSECTION 3.03. Representations and Warranties Regarding the
Mortgage Loans in the Aggregate.
CIT Consumer Finance represents and warrants to the Trustee and the
Certificateholders, that:
(a) Amounts. The aggregate principal amounts payable by Mortgagors under
the Mortgage Loans as of the Cut-off Date equal the Cut-off Date Pool
Certificate Balance.
(b) Characteristics. The Mortgage Loans have the following characteristics
as of the Cut-off Date: (i) not more than __% of the Mortgage Loans are located
in any one state (except Mortgage Loans secured by Mortgaged Properties located
in ___________, which represent ___% of the Cut-off Date Pool Certificate
Balance); (ii) not more than __% of the
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Mortgage Loans by remaining Certificate Balance are secured by Mortgaged
Properties located in an area with the same zip code; (iii) no Mortgage Loan has
a remaining maturity of less than __ months or more than ___ months; (iv) the
final scheduled payment date on the Mortgage Loan with the latest maturity is in
_________, ____; (v) no more than __% of the Cut-off Date Pool Certificate
Balance is attributable to loans for purchases of used Mortgaged Properties;
(vi) no Mortgage Loan was originated before _____ __, 19__; (vii) the Mortgage
Loan Rate on each Mortgage Loan is not less than ___% and not greater than __%;
and (viii) the Scheduled Certificate Balance of each Mortgage Loan is not less
than $______.
(c) Computer Tape. The Computer Tape made available by the Master Servicer
was complete and accurate as of its date and includes a description of the same
Mortgage Loans that are described in the List of Mortgage Loans.
(d) Marking Records. By the Closing Date, CIT Consumer Finance has caused
the portions of the Electronic Ledger relating to the Mortgage Loans
constituting part of the Trust to be clearly and unambiguously marked to
indicate that such Mortgage Loans constitute part of the Trust and are owned by
the Trust in accordance with the terms of the trust created hereunder.
(e) No Adverse Selection. Except for the effect of the representations and
warranties made in Section 3.02 and 3.03 hereof, no adverse selection procedures
have been employed in selecting the Mortgage Loans.
SECTION 3.04. Representations and Warranties Regarding the Mortgage Loan
Files.
CIT Consumer Finance represents and warrants to the Trustee and the
Certificateholders that:
(a) Possession. Immediately prior to the Closing Date, CIT Consumer Finance
will have possession of each original Mortgage Loan and the related Mortgage
Loan File, and there are and there will be no custodial agreements in effect
materially and adversely affecting the right of CIT Consumer Finance to make, or
to cause to be made, any delivery required in connection with the conveyance of
the Mortgage Loans to the Company.
(b) Bulk Transfer Laws. The transfer, assignment and conveyance of the
Mortgage Loans and the Mortgage Loan Files to the Company are not subject to the
bulk transfer or any similar statutory provisions in effect in any applicable
jurisdiction.
SECTION 3.05. Repurchase of Mortgage Loans or Substitution of Mortgage
Loans for Breach of Representations and WarrantiesSECTION 3.05. Repurchase of
Mortgage Loans or Substitution of Mortgage Loans for Breach of Representations
and Warranties2.
(a) Subject to Section 3.05(b), CIT Consumer Finance shall repurchase a
Mortgage Loan, at its Repurchase Price, not later than 85 days after CIT
Consumer Finance receives written notice from the Trustee or the Master
Servicer, or not later than 90 days after CIT Consumer Finance otherwise becomes
aware, of (i) a breach of any representation or warranty of CIT Consumer Finance
set forth in Section 3.02 or 3.03 of this Agreement that materially adversely
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affects the Trust's interest in such Mortgage Loan and which breach has not been
cured or (ii) the occurrence of a Repurchase Event which has not been cured. CIT
Consumer Finance shall effect such repurchase by paying to the Master Servicer
for deposit in the Certificate Account on the Business Day immediately preceding
the Distribution Date in the month following the month in which the loan was
repurchased the aggregate of the Repurchase Price of all Mortgage Loans that are
required to be repurchased pursuant to the preceding sentence. With respect to
any Mortgage Loan incorrectly described on the List of Mortgage Loans only with
respect to remaining unpaid Certificate Balance, which CIT Consumer Finance
would otherwise be required to repurchase pursuant to this Section 3.05, CIT
Consumer Finance may, in lieu of repurchasing such Mortgage Loan, deposit in the
Certificate Account, not later than one Business Day after the first
Determination Date which is more than 90 days after CIT Consumer Finance becomes
aware or receives written notice from the Trustee or the Master Servicer of such
incorrect description, cash in an amount sufficient to cure such deficiency or
discrepancy. CIT Consumer Finance shall send written notice of any such cash
deposit to [Rating Agency] as promptly as possible following such deposit.
Notwithstanding any other provision of the Agreement, the obligation of CIT
Consumer Finance under this Section shall not terminate upon a Service Transfer
pursuant to Article VII.
Notwithstanding the provisions of the preceding paragraph, but subject to
Section 3.05(b), CIT Consumer Finance will not be required to repurchase a
Mortgage Loan (or deposit cash in the Certificate Account as provided in the
preceding paragraph) as a result of a breach of a representation or warranty or
the occurrence of a Repurchase Event unless the Trustee has received an Opinion
of Counsel that such repurchase (or deposit of cash) will not cause the Trust to
fail to qualify as a REMIC at any time under the then applicable REMIC
Provisions. The Master Servicer shall attempt to obtain such Opinion of Counsel.
CIT Consumer Finance shall, subject to Section 3.05(b), repurchase such Mortgage
Loan (or deposit cash in the Certificate Account as provided in the preceding
paragraph) and shall guarantee the payment of any tax imposed under the REMIC
Provisions as a result of such repurchase or deposit by paying to the Trustee
the amount of such tax not later than five Business Days before such tax shall
be due and payable to the extent that amounts previously paid over to and then
held by the Trustee pursuant to Section 5.10 hereof are insufficient to pay such
tax and all other taxes chargeable under Section 5.10. Pursuant to Section 5.10,
the Master Servicer is hereby directed to withhold, and shall withhold and pay
over to the Trustee, an amount sufficient to pay such tax and any other taxes
imposed on "prohibited transactions" under Section 860F(a)(i) of the Code or
imposed on "contributions after start up date" under Section 860G(d) of the Code
from amounts otherwise distributable to Class R Certificateholders. The Master
Servicer shall give notice to the Trustee at the time of such repurchase (or
deposit) of the amounts due from CIT Consumer Finance pursuant to the guarantee
of CIT Consumer Finance and notice as to who should receive such payment.
The Trustee shall have no obligation to pay any such amounts pursuant to
this Section other than from moneys provided to it by CIT Consumer Finance or
from moneys held in the funds and accounts created under this Agreement. The
Trustee shall be deemed conclusively to have complied with this Section if it
follows the directions of CIT Consumer Finance.
In the event any tax that is guaranteed by CIT Consumer Finance is refunded
to the Trust or otherwise is determined not to be payable, CIT Consumer Finance
shall be repaid
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the amount of such refund or that portion of any guarantee payment made by CIT
Consumer Finance that is not applied to the payment of such tax.
(b) On or prior to the date that is the second anniversary of the Closing
Date, CIT Consumer Finance, at its election, may substitute an Eligible
Substitute Mortgage Loan for a Mortgage Loan that it is obligated to repurchase
pursuant to Section 3.05(a) (such Mortgage Loan being referred to as the
"Replaced Mortgage Loan") upon satisfaction of the following conditions:
(i) CIT Consumer Finance shall have conveyed to the Trustee the
Mortgage Loan to be substituted for the Replaced Mortgage Loan and the
Mortgage Loan File related to such Mortgage Loan and CIT Consumer Finance
shall have marked the Electronic Ledger indicating that such Mortgage Loan
constitutes part of the Trust;
(ii) the Mortgage Loan to be substituted for the Replaced Mortgage
Loan is an Eligible Substitute Mortgage Loan and CIT Consumer Finance
delivers an Officers' Certificate, substantially in the form of Exhibit I-2
hereto, to the Trustee certifying that such Mortgage Loan is an Eligible
Substitute Mortgage Loan;
(iii) CIT Consumer Finance shall have delivered to the Trustee
evidence of filing of a UCC-1 financing statement executed by CIT Consumer
Finance naming the Trustee as secured party and filed in _______, listing
such Mortgage Loan;
(iv) CIT Consumer Finance shall have delivered to the Trustee an
Opinion of Counsel to the effect that the substitution of such Mortgage
Loan for such Replaced Mortgage Loan will not cause the Trust to fail to
qualify as a REMIC at any time under then applicable REMIC Provisions or
cause any "prohibited transaction" that will result in the imposition of a
tax under such REMIC Provision; and
(v) if the Scheduled Certificate Balance of such Replaced Mortgage
Loan is greater than the Scheduled Certificate Balance of the Mortgage Loan
being substituted, CIT Consumer Finance shall have deposited in the
Certificate Account the amount of such excess and shall have included in
the Officers' Certificate required by clause (ii) above a certification
that such deposit has been made.
Upon satisfaction of such conditions, the Trustee shall add such Mortgage Loan
to, and delete such Replaced Mortgage Loan from, the List of Mortgage Loans.
Such substitution shall be effected prior to the expiration of the period in
which CIT Consumer Finance is otherwise obligated to repurchase such Replaced
Mortgage Loan pursuant to Section 3.05(a). Promptly after any substitution of
Mortgage Loan, CIT Consumer Finance shall give written notice of such
substitution to [Rating Agency].
(c) Promptly after the repurchase referred to in Section 3.05(a) or the
substitution referred to in Section 3.05(b), the Trustee shall execute such
documents as are presented to it by CIT Consumer Finance and are reasonably
necessary to reconvey the repurchased Mortgage Loan or Replaced Mortgage Loan,
as the case may be, to CIT Consumer Finance.
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ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
SECTION 4.01. Custody of Mortgage Loans
(a) Subject to the terms and conditions of this Section 4.01, the Master
Servicer shall act as custodian of the Mortgage Loan Files for the benefit of
the Certificateholders and the Trustee.
(b) The Master Servicer agrees to maintain the related Mortgage Loan Files
at its offices in the State of New Jersey, or at such of its offices of the
Master Servicer in the State of Oklahoma as shall from time to time be
identified to the Trustee by written notice. The Master Servicer may temporarily
move individual Mortgage Loan Files or any portion thereof without notice as
necessary to conduct collection and other servicing activities in accordance
with its customary practices and procedures.
(c) As custodian, the Master Servicer shall have and perform the following
powers and duties:
(i) hold the Mortgage Loan Files on behalf of the Certificateholders
and the Trustee, maintain accurate records pertaining to each Mortgage Loan
to enable it to comply with the terms and conditions of this Agreement,
maintain a current inventory thereof, conduct annual physical inspections
of Mortgage Loan Files held by it under this Agreement and certify to the
Trustee annually that it continues to maintain possession of such Mortgage
Loan Files;
(ii) implement policies and procedures in writing and signed by a
Servicing Officer, with respect to persons authorized to have access to the
Mortgage Loan Files on the Master Servicers' premises and the receipting
for Mortgage Loan Files taken from their storage area by an employee of the
Master Servicer for purposes of servicing or any other purposes; and
(iii) attend to all details in connection with maintaining custody of
the Mortgage Loan Files on behalf of the Certificateholders and the
Trustee.
(d) In performing its duties under this Section 4.01, the Master Servicer
agrees to act with reasonable care, consistent with the same degree of skill and
care that it exercises with respect to similar contracts serviced by it for its
own account. The Master Servicer shall promptly report to the Trustee any
failure by it to hold the Mortgage Loan Files as herein provided and shall
promptly take appropriate action to remedy any such failure. In acting as
custodian of the Mortgage Loan Files, the Master Servicer agrees further not to
assert any beneficial ownership interests in the Mortgage Loans or the Mortgage
Loan Files. The Master Servicer agrees to indemnify the Certificateholders and
the Trustee for any and all liabilities, obligations, losses, damages, payments,
costs, or expense of any kind whatsoever which may be imposed on, incurred or
asserted against the Certificateholders and the Trustee as the result of any act
or omission by the
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Master Servicer relating to the maintenance and custody of the Mortgage Loan
Files; provided, however, that the Master Servicer will not be liable for any
portion of any such amount resulting from the negligence or willful misconduct
of any Certificateholder or the Trustee.
SECTION 4.02. FilingsSECTION 4.02. Filings.
On or prior to the Closing Date, the Master Servicer shall cause the UCC-1
financing statements referred to in Section 2.02(g) to be filed. The Master
Servicer shall cause to be filed all necessary continuation statements of the
UCC-1 financing statement referred to in Section 2.02(g) on which it is the
debtor, and the Company shall cause to be filed all necessary continuation
statements of the UCC-1 financing statement referred to in Section 2.02(g) on
which it is the debtor. From time to time the Master Servicer shall, subject to
the following sentence, take and cause to be taken such actions and execute such
documents as are necessary to perfect and protect the Certificateholders'
interests in the Mortgage Loans and their proceeds and the Mortgaged Properties
against all other persons, including, without limitation, the filing of
financing statements, amendments thereto and continuation statements.
The Master Servicer will maintain the Trustee's perfected first priority
security interest in each Mortgaged Property so long as the related Mortgage
Loan is the property of the Trust; provided, however, that because of the
expense and administrative inconvenience involved, the Master Servicer will not
record the successive assignments of the first lien on any Mortgaged Property
from the related Mortgage Loan Originator to CIT Consumer Finance, from CIT
Consumer Finance to the Company and from the Company to the Trustee.
SECTION 4.03. Name Change or RelocationSECTION 4.03. Name Change or
Relocation.
(a) During the term of this Agreement, neither the Company nor CIT Consumer
Finance shall change its name, identity or structure or relocate its chief
executive office without first giving notice thereof to the Trustee and the
Master Servicer. In addition, following any such change in the name, identity,
structure or location of the chief executive office of the Company or CIT
Consumer Finance, the Company or CIT Consumer Finance, as appropriate, shall
give written notice thereof to [Rating Agency].
(b) If any change in the Company's, the Master Servicer's or CIT Consumer
Finance's name, identity or structure or the relocation of its chief executive
office would make any financing or continuation statement or notice of lien
filed under this Agreement seriously misleading within the meaning of applicable
provisions of the UCC or would cause any such financing or continuation
statement or notice of lien to become unperfected (whether immediately or with
lapse of time), the Master Servicer no later than five days after the effective
date of such change, shall file, or cause to be filed, such amendments or
financing statements as may be required to preserve, perfect and protect the
Certificateholders' interests in the Mortgage Loans and proceeds thereof and in
the Mortgaged Properties.
SECTION 4.04. Chief Executive Office
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During the term of this Agreement, the Company and CIT Consumer Finance
will maintain their respective chief executive offices in one of the States of
the United States.
SECTION 4.05. Costs and ExpensesSECTION 4.05. Costs and Expenses.
The Master Servicer agrees to pay all reasonable costs and disbursements in
connection with the perfection and the maintenance of perfection, as against all
third parties, of the Certificateholders' right, title and interest in and to
the Mortgage Loans (including, without limitation, the security interest in the
Mortgaged Properties granted thereby).
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ARTICLE V
SERVICING OF CONTRACTS
SECTION 5.01. Responsibility for Mortgage Loan Administration
The Master Servicer shall manage, administer, service and make collections
on the Mortgage Loans and perform or cause to be performed all contractual and
customary undertakings of the holder of the Mortgage Loans to the Mortgagor. The
Trustee, at the request of a Servicing Officer, shall furnish the Master
Servicer with any reasonable documents or take any action reasonably requested,
necessary or appropriate to enable the Master Servicer to carry out its
servicing and administrative duties hereunder. CIT Consumer Finance is hereby
appointed the Master Servicer until such time as any Service Transfer shall be
effected under Article VII.
SECTION 5.02. Standard of Care
In managing, administering, servicing and making collections on the
Mortgage Loans pursuant to this Agreement, the Master Servicer will exercise
that degree of skill and care consistent with the same degree of skill and care
that the Master Servicer exercises with respect to similar contracts serviced by
the Master Servicer for its own account; provided, however, that (i) such degree
of skill and care shall be at least as favorable as the degree of skill and care
generally applied by Master Servicers of mortgage loans for institutional
investors and (ii) notwithstanding the foregoing, the Master Servicer shall not,
other than in connection with a default or an imminent default on a Mortgage
Loan, release or waive the right to collect the unpaid balance on such Mortgage
Loan, unless the Master Servicer obtains an Opinion of Counsel to the effect
that such action will not cause the Trust to fail to qualify as a REMIC under
the Code and under the relevant state and local law or result in the imposition
of taxes on the Trust under the REMIC Provisions.
SECTION 5.03. Records
The Master Servicer shall during the period it is Master Servicer
hereunder, maintain such books of account and other records as will enable the
Trustee to determine the status of each Mortgage Loan.
SECTION 5.04. Inspection; Computer Tape
(a) At all times during the term hereof, the Master Servicer shall afford
the Trustee and its authorized agents reasonable access during normal business
hours to the Master Servicer's records relating to the Mortgage Loans and will
cause its personnel to assist in any examination of such records by the Trustee
or its authorized agents. The examination referred to in this Section 5.04 will
be conducted in a manner which does not unreasonably interfere with the Master
Servicer's normal operations or customer or employee relations. Without
otherwise limiting the scope of the examination the Trustee may make, the
Trustee or its authorized agents may, using generally accepted audit procedures,
verify the status of each Mortgage Loan and review the Electronic Ledger and
records relating thereto for conformity to Monthly Reports prepared pursuant
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to Article VI and compliance with the standards represented to exist as to each
Mortgage Loan in this Agreement.
(b) At all times during the term hereof, the Master Servicer shall keep
available a copy of the List of Mortgage Loans at its principal executive office
for inspection by Certificateholders.
SECTION 5.05. Certificate Account
(a) On or before the Closing Date, the Trustee shall establish the
Certificate Account on behalf of the Trust with an Eligible Institution. The
Certificate Account shall be entitled "_________________________ as trustee for
the benefit of Holders of Home Equity Loan Asset Backed Certificates, Series
_____ (The CIT Group/Consumer Finance, Inc., Master Servicer)." The Master
Servicer shall, subject to the second following sentence, deposit in the
Certificate Account, no later than two Business Days after the Closing Date, any
amounts representing (i) scheduled payments of principal and interest due on
Precomputed Mortgage Loans on or after the Cut-off Date (but not including
payments received after the Cut-off Date but due before the Cut-off Date)
regardless of when the Master Servicer received such payments and (ii) payments
received on the simple interest Mortgage Loans on or after the Cut-off Date,
regardless of when due. The Master Servicer shall, subject to the following
sentence, pay into the Certificate Account as promptly as practicable (not later
than the second Business Day) following the receipt thereof by the Master
Servicer, all amounts received in respect of the Mortgage Loans (other than in
respect of principal of and interest on the Precomputed Mortgage Loans due
before the Cut-off Date), including all loan payments from Mortgagors,
Liquidation Proceeds (net of Liquidation Expenses) and any Repurchase Price (or
cash deposit) paid pursuant to Section 3.05. Notwithstanding anything in this
Agreement to the contrary, for so long as, and only so long as, CIT Consumer
Finance shall remain the Master Servicer hereunder, if (i) The CIT Group
Holdings, Inc. shall have and maintain a short-term debt rating of at least __
by [Rating Agency] and (ii) the Trustee shall have received an Opinion of
Counsel that any action taken pursuant to this sentence shall not adversely
affect the status of the Trust as a REMIC or result in the imposition of a tax
upon the Trust, the Master Servicer may make the deposits to the Certificate
Account specified in the two preceding sentences on a monthly basis, but not
later than the Business Day immediately preceding the Distribution Date
following the last day of the Due Period within which such payments were
processed by the Master Servicer, in an amount equal to the net amount of such
deposits and payments which would have been made to the Certificate Account
during such Due Period but for the provisions of this paragraph. All amounts
paid into the Certificate Account under this Agreement shall be held in trust
for the Certificateholders until payment of any such amounts is authorized under
this Agreement.
(b) The Eligible Institution maintaining the Certificate Account shall, in
the name of the Trustee, as trustee, invest the amounts in the Certificate
Account solely in Eligible Investments that mature not later than one Business
Day prior to the next succeeding Distribution Date, in accordance with
instructions provided to the Trustee by the Master Servicer in writing. Once
such funds are invested, such Eligible Institution shall not change the
investment of such funds. All net income and gain from such investments shall be
deposited in the Certificate
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Account. All income and gain realized from any such investments shall be for the
benefit of the Master Servicer and may be withdrawn by the Master Servicer on
each Distribution Date pursuant to subsection 8.02(g). An amount equal to any
net loss on such investments shall be deposited in the Certificate Account by
the [Master Servicer/Class R Certificateholders] out of its own funds, without
right to reimbursement, immediately as realized. "Eligible Investments" are any
of the following:
(i) direct obligations of, and obligations fully guaranteed by, the
United States of America, the Federal Home Loan Mortgage Corporation, the
Federal National Mortgage Association, or any agency or instrumentality of
the United States of America the obligations of which are backed by the
full faith and credit of the United States of America and which are
non-callable;
(ii) [A] demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by, or federal funds sold by any depository
institution or trust company (including the Trustee or any Affiliate of the
Trustee, acting in its commercial capacity) incorporated under the laws of
the United States of America or any state thereof and subject to
supervision and examination by federal and/or state authorities, so long
as, at the time of such investment or contractual commitment providing for
such investment, the commercial paper or other short-term debt obligations
of such depository institution or trust company have been rated [P-1 by
Moody's/A-1 or higher by Standard & Poor's] [and (B) any other demand or
time deposit or certificate of deposit which is fully insured by the
Federal Deposit Insurance Corporation];
(iii) repurchase obligations with respect to any security described in
either clause (i) or (ii) above and entered into with any institution whose
commercial paper is rated at least [P-1 from Moody's/A-1 from Standard &
Poor's];
(iv) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or
any State thereof which have a credit rating of at least [Aa from
Moody's/AA from Standard & Poor's] at the time of such investment;
(v) commercial paper having a rating of at least [P-1 from Moody's/A-1
from Standard & Poor's] at the time of such investment; and
(vi) [shares of an investment company registered under the Investment
Company Act of 1940, whose shares are registered under the Securities Act
of 1933 and have the highest credit rating then available from Moody's or
money market funds rated AAAm or AAAm-G by Standard & Poor's.]
The Trustee may trade with itself or with an Affiliate on an arm's length
basis in the purchase or sale of such Eligible Investments.
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SECTION 5.06. Enforcement
(a) The Master Servicer will, consistent with customary servicing
procedures and the terms of this Agreement, act with respect to the Mortgage
Loans in such manner as will maximize the receipt of principal and interest on
the Mortgage Loans and Liquidation Proceeds in respect of Defaulted Mortgage
Loans.
(b) The Master Servicer may xxx to enforce or collect upon Mortgage Loans,
including foreclosure of any security interest or Mortgaged Property, in its own
name, if possible, or as agent for the Trustee. If the Master Servicer elects to
commence a legal proceeding to enforce a Mortgage Loan, the act of commencement
shall be deemed to be an automatic assignment of the Mortgage Loan to the Master
Servicer for purposes of collection only. If, however, in any enforcement suit
or legal proceeding it is held that the Master Servicer may not enforce a
Mortgage Loan on the ground that it is not a real party in interest or a holder
entitled to enforce the Mortgage Loan, the Trustee on behalf of the Trust shall,
at the Master Servicer's expense, take such steps as the Master Servicer deems
necessary to enforce the Mortgage Loan, including bringing suit in its name or
the names of the Certificateholders.
(c) The Master Servicer shall exercise any rights of recourse against third
persons that exist with respect to any Mortgage Loan in accordance with Master
Servicer's usual practice. In exercising recourse rights, the Master Servicer is
authorized on the Trustee's behalf to reassign the Mortgage Loan or to resell
the related Mortgaged Property to the person against whom recourse exists at the
price set forth in the document creating the recourse.
(d) Prior to a Service Transfer the Master Servicer may grant to the
Mortgagor on any Mortgage Loan any rebate, refund or adjustment out of the
Certificate Account that the Master Servicer in good faith believes is required
because of prepayment in full of the Mortgage Loan. The Master Servicer will not
permit any rescission or cancellation of any Mortgage Loan.
(e) Prior to a Service Transfer, the Master Servicer may, consistent with
its customary servicing procedures and consistent with Section 5.02, grant to
the Mortgagor on any contract an extension of payments due under such Mortgage
Loan, provided that such extension does not result in any payments coming due on
or after __________ __, ____, and provided further that Mortgagors may not be
solicited for extensions and no more than one extension of payments under a
Mortgage Loan may be granted in any twelve-month period.
(f) The Master Servicer may enforce any due-on-sale clause in a Mortgage
Loan if such enforcement is called for under its then current servicing policies
for obligations similar to the Mortgage Loans, provided that such enforcement is
permitted by applicable law and will not adversely affect any applicable
insurance policy. If an assumption of a Mortgage Loan is permitted by the Master
Servicer upon the conveyance of the related Mortgaged Property, the Master
Servicer shall use its best efforts to obtain an assumption agreement in
connection therewith and deliver such assumption agreement to the Trustee for
addition to the related Mortgage Loan File.
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(g) In the event that applicable state law requires that the sale of any
Mortgaged Property to which the Trustee has acquired title, through foreclosure
or otherwise, be conducted through a licensed real estate broker, the Master
Servicer shall retain such broker, and the fees payable to such broker in
connection with any such sale shall constitute Liquidation Expenses.
SECTION 5.07. Trustee to Cooperate
Upon payment in full on any Mortgage Loan, the Master Servicer will notify
the Trustee by certification of a Servicing Officer (which certification shall
include a statement to the effect that all amounts received in connection with
such payments which are required to be deposited in the Certificate Account
pursuant to Section 5.05 have been so deposited). The Master Servicer is
authorized to execute an instrument in satisfaction of such Mortgage Loan and to
do such other acts and execute such other documents as the Master Servicer deems
necessary to discharge the Mortgagor thereunder and eliminate the security
interest in the Mortgaged Property related thereto. The Master Servicer shall
determine when a Mortgage Loan has been paid in full. To the extent that
insufficient payments are received on a Mortgage Loan credited by the Master
Servicer as prepaid or paid in full and satisfied, the shortfall shall be paid
by the Master Servicer out of its own funds.
SECTION 5.08. Costs and Expenses
All costs and expenses incurred by the Master Servicer in carrying out its
duties hereunder, including all fees and expenses incurred in connection with
the enforcement of Mortgage Loans (including enforcement of Defaulted Mortgage
Loans), shall be paid by the Master Servicer and the Master Servicer shall not
be entitled to reimbursement hereunder, except that the Master Servicer shall be
reimbursed out of the Liquidation Proceeds of a Defaulted Mortgage Loan for
customary Liquidation Expenses incurred by it directly in connection with
realizing upon the related Mortgaged Property. To the extent that nonpayment of
any taxes or charges would result in the creation of a lien upon any Mortgaged
Property having a priority equal or senior to the lien of the related Mortgage
Loan, the Master Servicer shall pay any such delinquent tax or charge and be
reimbursed by the related Mortgagor or from Liquidation Proceeds in respect of
such Mortgage Loan.
SECTION 5.09. Maintenance of Insurance
(a) Except as otherwise provided in subsection (b) of this Section 5.09,
the Master Servicer shall cause to be maintained with respect to each Mortgage
Loan in connection with a Defaulted Mortgage Loan one or more Hazard Insurance
Policies which provide, at a minimum, the same coverage as a standard form fire
and extended coverage insurance policy that is customary for home equity loans,
issued by a company authorized to issue such policies in the state in which the
related Mortgaged Property is located, and in an amount which is not less than
the maximum insurable value of such Mortgaged Property or the Certificate
Balance due from the Mortgagor on the related Mortgage Loan, whichever is less;
provided, however, that the amount of coverage provided by each Hazard Insurance
Policy shall be sufficient to avoid the application of any co-insurance clause
contained therein; and provided, further, that such Hazard Insurance Policies
may provide for customary deductible amounts. When a Mortgaged Property's
location
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was, at the time of origination of the related Mortgage Loan, and continues to
be, within a federally designated special flood hazard area, the Master Servicer
shall also cause such flood insurance to be maintained, which coverage shall be
at least equal to the minimum amount specified in the preceding sentence or such
lesser amount as may be available under the federal flood insurance program.
Each Hazard Insurance Policy caused to be maintained by the Master Servicer
shall contain a standard loss payee clause in favor of the Master Servicer and
its successors and assigns. If any Mortgagor is in default in the payment of
premiums on its Hazard Insurance Policy or Policies, the Master Servicer shall
pay such premiums out of its own funds, and may separately add such premium to
the Mortgagor's obligation as provided by the Mortgage Loan, but shall not add
such premium to the remaining Certificate Balance of the Mortgage Loan.
(b) The Master Servicer may, in lieu of causing individual Hazard Insurance
Policies to be maintained with respect to each Mortgaged Property pursuant to
subsection (a) of this Section 5.09, and shall, to the extent that the related
Mortgage Loan does not require the Mortgagor to maintain a Hazard Insurance
Policy with respect to the related Mortgaged Property, maintain one or more
blanket insurance policies covering losses on the Mortgagor's interest in the
Mortgage Loans resulting from the absence or insufficiency of individual Hazard
Insurance Policies. Any such blanket policy shall be substantially in the form
and in the amount carried by the Master Servicer as of the date of this
Agreement. The Master Servicer shall pay the premium for such policy on the
basis described therein. The Master Servicer shall not, however, be required to
deposit any deductible amount with respect to (a) claims under individual Hazard
Insurance Policies maintained pursuant to subsection (a) of this Section 5.09,
or (b) claims under any blanket insurance policy. If the insurer under such
blanket insurance policy shall cease to be acceptable to the Master Servicer,
the Master Servicer shall exercise its best reasonable efforts to obtain from
another insurer a replacement policy comparable to such policy.
(c) The Master Servicer shall keep in force throughout the term of this
Agreement (i) at such time as the long-term debt of its parent is rated less
than [A by Standard & Poor's], a policy or policies of insurance covering errors
and omissions for failure to maintain insurance as required by this Agreement,
and (ii) a fidelity bond. Such policy or policies and such fidelity bond shall
be in such form and amount as is generally customary among Persons which service
a portfolio of mortgage loans having an aggregate principal amount of
$100,000,000 or more and which are generally regarded as Master Servicers
acceptable to institutional investors.
SECTION 5.10. REMIC Compliance
The parties intend that the Trust formed hereunder shall constitute, and
that the affairs of the Trust shall be conducted so as to qualify it as, a "real
estate mortgage investment conduit" as defined in and in accordance with the
REMIC Provisions. In furtherance of such intention, the Trustee covenants and
agrees that it shall, to the extent permitted by applicable law, act as agent
(and the Trustee is hereby appointed to act as agent) on behalf of the Trust and
that in such capacity it shall: (a) cause to be prepared by a nationally
recognized firm of public accountants designated by the Company and filed, all
required federal tax returns for the Trust including, but not limited to, Form
1066 (which must be signed by the Trustee) and Schedule Q, using a calendar year
as the taxable year for the Trust when and as required by the REMIC
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Provisions and other applicable federal income tax laws; (b) cause an election
to be made, on behalf of the Trust, to be treated as a REMIC on the federal
information tax return of the Trust for its first taxable year, in accordance
with the REMIC Provisions; (c) prepare and forward or cause to be prepared and
forwarded, to the Certificateholders all information reports as and when
required to be provided to them in accordance with the REMIC Provisions; (d)
conduct the affairs of the Trust at all times that any Class A [or Class B]
Certificate is outstanding so as to maintain the status thereof as a REMIC under
the REMIC Provisions; and (e) not knowingly or intentionally take any action or
omit to take any action that would cause the termination of the REMIC status of
the Trust. The Master Servicer covenants and agrees that it shall, to the extent
permitted by law, act as agent (and the Master Servicer is hereby appointed to
act as agent) on behalf of the Trust and in such capacity it shall: (a) pay the
amount of any federal income tax (to the extent that funds distributable to the
Class R Certificateholders are not available), including prohibited transaction
penalty taxes (exclusive of any such tax charged to CIT Consumer Finance (if CIT
Consumer Finance is not the Master Servicer) pursuant to Section 3.05), imposed
on the Trust when and as the same shall be due and payable (but such obligation
shall not prevent the Master Servicer or any other appropriate Person from
contesting any such tax in appropriate proceedings and shall not prevent the
Master Servicer from withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings); (b) conduct the affairs of the Trust
at all times that any Class A [or Class B] Certificate is outstanding so as to
maintain the status thereof as a REMIC under the REMIC Provisions; and (c) not
knowingly or intentionally take any action or omit to take any action that would
cause the termination of the REMIC status of the Trust.
In the event that any tax is imposed on "prohibited transactions" of the
Trust as defined in Section 860F(a)(2) of the Code or on "contributions after
startup date" as defined in Section 860G(d) of the Code, such tax shall be
charged against amounts otherwise distributable to the holders of the Class R
Certificates in accordance with their Percentage Interests to the extent
hereinafter provided. Notwithstanding anything to the contrary contained herein,
the Master Servicer shall retain from amounts otherwise distributable to the
holders of the Class R Certificates on any Distribution Date sufficient funds
for the payment of such tax, including without limitation any tax payable
pursuant to Section 3.05, and shall pay such amount to the Trustee or, if the
Master Servicer (other than as a Class R Certificateholder) has paid such tax,
reimburse the Master Servicer therefor (to the extent that the Master Servicer
has not been previously reimbursed or indemnified therefor). The Master Servicer
agrees first to seek indemnification for any such tax payment from any
indemnifying parties before reimbursing itself from amounts otherwise
distributable to the holders of the Class R Certificates.
In the event that any Mortgaged Property is acquired in a foreclosure or
other realization procedure (an "REO Property"), the Master Servicer shall sell
such REO Property within two years of its acquisition by the Trust, unless, at
the request of the Master Servicer, the Trustee seeks, and subsequently
receives, an Opinion of Counsel, addressed to the Trustee and the Master
Servicer, to the effect that the holding by the Trust of such REO Property
subsequent to two years after its acquisition will not result in the imposition
of taxes on "prohibited transactions" of the Trust as defined in Section 860F of
the Code or cause the Trust to fail to qualify as a REMIC at any time that any
Certificates are outstanding. The Master Servicer shall manage, conserve,
protect and operate each REO Property such that it will qualify as "foreclosure
property" within the meaning of
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Section 860G(a)(8) and will not result in the receipt by the REMIC of any
"income from nonpermitted assets" within the meaning of Section 860F(a)(2)(B) or
the Code. Pursuant to its efforts to sell such REO Property, the Master Servicer
shall either itself or through an agent selected by the Master Servicer protect
and conserve such REO Property in the same manner and to such extent as it is
customary in the locality where such REO Property is located and may, incident
to its conservation and protection of the interests of the Certificateholders,
rent the same, or any part thereof, as the Master Servicer deems to be in the
best interest of the Master Servicer and the Certificateholders for the period
prior to the sale of such REO Property.
The Master Servicer shall deposit all Liquidation Proceeds (net of
Liquidation Expenses) in the Certificate Account in accordance with Section
5.05(a). The Master Servicer shall include with its Monthly Report to the
Trustee a separate report specifying, with respect to each Mortgage Loan that
becomes a Liquidated Mortgage Loan during the prior Due Period, the unpaid
Certificate Balance and the Liquidation Proceeds (net of Liquidation Expenses)
for such Mortgage Loan.
SECTION 5.11. Foreclosure
Notwithstanding the standard of care specified in Section 5.02, the Master
Servicer shall commence procedures for the foreclosure upon any Mortgaged
Property or take such other steps that in the Master Servicer's reasonable
judgment will maximize the receipt of principal and interest or Liquidation
Proceeds with respect to the Mortgage Loan secured by such Mortgaged Property,
subject to the requirements of the applicable state and federal law, no later
than five Business Days after the time when such Mortgage Loan becomes a
Defaulted Mortgage Loan, provided that if the Master Servicer has actual
knowledge that a Mortgaged Property is affected by hazardous waste, then the
Master Servicer shall not cause the Trustee to acquire title to such Mortgaged
Property in a foreclosure or similar proceeding. For purposes of the last
proviso in the preceding sentence, the Master Servicer shall not be deemed to
have actual knowledge that a Mortgaged Property is affected by hazardous waste
unless it shall have received written notice that hazardous waste is present on
such property and such written notice has been made a part of the Mortgage Loan
File with respect to the related Mortgage Loan. In connection with such
foreclosure or other conversion, the Master Servicer shall follow such practices
and procedures as it shall deem necessary or advisable and as shall be
consistent with Section 5.02. In the event that title to any Mortgaged Property
is acquired in foreclosure or by deed in lieu of foreclosure, the deed or
certificate of sale shall be issued to the Trustee, as Trustee, or, at its
election, to its nominee on behalf of the Trustee, as Trustee.
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ARTICLE VI
REPORTS
SECTION 6.01. Monthly Reports to the Trustee
On the third Business Day next preceding each Distribution Date, the Master
Servicer shall furnish a report (the "Monthly Report") to the Trustee, any
Paying Agent and (if CIT Consumer Finance is not the Master Servicer) CIT
Consumer Finance. The determination by the Master Servicer of the amount of the
distributions to be made to the Class A[, the Class B] and the Class R
Certificateholders shall, in the absence of obvious error, be presumptively
deemed to be correct for all purposes hereunder, and the Trustee shall be
protected in relying upon the same without any independent check or
verification.
SECTION 6.02. Certificate of Servicing Officer
Each Monthly Report pursuant to Section 6.01 shall be accompanied by a
certificate of a Servicing Officer substantially in the form of Exhibit H,
certifying the accuracy of the Monthly Report and that no Event of Termination
or event that with notice or lapse of time or both would become an Event of
Termination has occurred, or if such event has occurred and is continuing,
specifying the event and its status.
SECTION 6.03. Other Data
In addition, the Master Servicer shall, on request of the Trustee, furnish
the Trustee such underlying data as can be generated by the Master Servicer's
existing data processing system without undue modification or expense.
SECTION 6.04. Annual Report of Accountants
On or before __________ __ of each year, commencing __________ __, ____,
the Master Servicer, at its expense, shall cause a firm of independent public
accountants which is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Trustee to the effect that such firm
has examined certain documents and records relating to the servicing of mortgage
loans under pooling and servicing agreements similar to and including this
Agreement one to another (such statement to have attached thereto a schedule
setting forth the pooling and servicing agreements covered thereby, including
this Agreement) and that, on the basis of such examination conducted
substantially in compliance with generally accepted auditing standards, such
servicing has been conducted in compliance with such pooling and servicing
agreements except for such significant exception or errors in records that, in
the opinion of such firm, generally accepted auditing standards requires it to
report. Copies of the annual statement of accountants shall also be provided to
[Rating Agency].
SECTION 6.05. Statements to Certificateholders
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Concurrently with each distribution charged to the Certificate Account, the
Trustee, so long as it has received the Monthly Report from the Master Servicer,
shall forward or cause to be forwarded by mail to each Certificateholder, the
Monthly Report in the form attached as Exhibit L hereto.
The Trustee and the Master Servicer shall inform any Certificateholder
inquiring by telephone of the information contained in the most recent Monthly
Report.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall furnish or cause to be furnished to each Person who at any time
during the calendar year was a Certificateholder a statement containing the
information with respect to interest accrued and principal paid on its
Certificates during such calendar year. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time in force.
Copies of all reports provided to the Trustee for the Certificateholders
shall also be provided to [Rating Agency].
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ARTICLE VII
SERVICE TRANSFER
SECTION 7.01. Event of Termination
"Event of Termination" means the occurrence of any of the following:
(a) Any failure by the Master Servicer to make any deposit into an account
required to be made hereunder and the continuance of such failure for a period
of five Business Days after the Master Servicer has become aware that such
deposit was required;
(b) Failure on the Master Servicer's part to observe or perform in any
material respect any covenant or agreement in this Agreement, which failure
continues unremedied for 30 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the Master
Servicer by the Trustee or the Company or to the Master Servicer and the Trustee
by Holders of Class A Certificates [and Class B Certificates] evidencing, as to
such Class, Percentage Interests aggregating not less than 25%;
(c) Any assignment by the Master Servicer of its duties or rights hereunder
except as specifically permitted hereunder, or any attempt to make such an
assignment;
(d) A court or other governmental authority having jurisdiction in the
premises shall have entered a decree or order for relief in respect of the
Master Servicer in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Master Servicer, as the case may be, or for any substantial
liquidation of its affairs, and such order remains undischarged and unstayed for
at least 60 days;
(e) The Master Servicer shall have commenced a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall have consented to the entry of an order for relief in an
involuntary case under any such law, or shall have consented to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee, custodian
or sequestrator (or other similar official) of the Master Servicer or for any
substantial part of its property, or shall have made any general assignment for
the benefit of its creditors, or shall have failed to, or admitted in writing
its inability to, pay its debts as they become due, or shall have taken any
corporate action in furtherance of the foregoing; or
(f) The failure of the Master Servicer to be an Eligible Master Servicer.
SECTION 7.02. Transfer
If an Event of Termination has occurred and is continuing, the Trustee may
[or at the written direction of Certificateholders with aggregate Percentage
Interests representing ___% or more of the Trust shall], unless prohibited by
applicable law, terminate all (but not less than all) of the Master Servicer's
management, administrative, servicing and collection functions (such
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termination being herein called a "Service Transfer"). On receipt of such notice
(or, if later, on a date designated therein), all authority and power of the
Master Servicer under this Agreement, whether with respect to the Mortgage
Loans, the Mortgage Loan Files or otherwise (except with respect to the
Certificate Account, the transfer of which shall be governed by Section 7.06),
shall pass to and be vested in the Trustee pursuant to and under this Section
7.02; and, without limitation, the Trustee is authorized and empowered to
execute and deliver on behalf of the Master Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do any and all
acts or things necessary or appropriate to effect the purposes of such notice of
termination. Each of CIT Consumer Finance and the Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the responsibilities
and rights of the Master Servicer hereunder, including, without limitation, the
transfer to the Trustee for administration by it of all cash amounts which shall
at the time be held by the Master Servicer for deposit, or have been deposited
by the Master Servicer, in the Certificate Account, or for its own account in
connection with its services hereafter or thereafter received with respect to
the Mortgage Loans. The Master Servicer shall be entitled to receive any other
amounts which are payable to the Master Servicer under this Agreement, at the
time of the termination of its activities as Master Servicer. The Master
Servicer shall transfer to the new Master Servicer (i) the Master Servicer's
records relating to the Mortgage Loans in such electronic form as the new Master
Servicer may reasonably request and (ii) the Mortgage Loans and the Mortgage
Loan Files in the Master Servicer's possession.
SECTION 7.03. Trustee to Act; Appointment of Successor
On and after the time the Master Servicer receives a notice of termination
pursuant to Section 7.02, the Trustee shall be the successor in all respects to
the Master Servicer in its capacity as Master Servicer under this Agreement and
the transactions set forth or provided for herein and shall be subject to all
the responsibilities, duties and liabilities relating thereto placed on the
Master Servicer by the terms and provisions hereof, and the Master Servicer
shall be relieved of such responsibilities, duties and liabilities arising after
such Service Transfer; provided, however, that (i) the Trustee will not assume
any obligations of CIT Consumer Finance pursuant to Section 3.05 and (ii) the
Trustee shall not be liable for any acts or omissions of the Master Servicer
occurring prior to such Service Transfer or for any breach by CIT Consumer
Finance of any of its representations and warranties contained herein or in any
related document or agreement. As compensation therefor, the Trustee shall,
except as provided in Section 7.02 and in this Section 7.03, be entitled to such
compensation as the Master Servicer would have been entitled to hereunder if no
such notice of termination had been given. Notwithstanding the above, the
Trustee may, if it shall be unwilling so to act, or shall, if it is legally
unable so to act, appoint, or petition a court of competent jurisdiction to
appoint, an Eligible Master Servicer as the successor to the Master Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer hereunder. Pending appointment of a
successor to the Master Servicer hereunder, unless the Trustee is prohibited by
law from so acting, the Trustee shall act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the Trustee may
make such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that no
such compensation shall, without the written consent of 100% of the
Certificateholders, be in excess of
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the Servicing Fee. The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession.
SECTION 7.04. Notification to Certificateholders and to Rating Agency
(a) Promptly following the occurrence of any Event of Termination, the
Master Servicer shall give written notice thereof to the Trustee,
Certificateholders at their respective addresses appearing on the Certificate
Register and to [Rating Agency].
(b) Within 10 days following any termination or appointment of a successor
to the Master Servicer pursuant to this Article VII, the Trustee shall give
written notice thereof to Certificateholders at their respective addresses
appearing on the Certificate Register.
(c) The Trustee shall give written notice to [Rating Agency] at least 30
days prior to the date upon which any Eligible Master Servicer (other than the
Trustee) is to assume the responsibilities of Master Servicer pursuant to
Section 7.03, naming such Successor Master Servicer.
SECTION 7.05. Effect of Transfer
(a) After the Service Transfer, the Trustee or new Master Servicer may
notify the Mortgagors to make payments directly to the new Master Servicer that
are due under the Mortgage Loans after the effective date of the Service
Transfer.
(b) After the Service Transfer, the replaced Master Servicer shall have no
further obligations with respect to the management, administration, servicing or
collection of the Mortgage Loans and the new Master Servicer shall have all of
such obligations, except that the replaced Master Servicer shall remain liable
for any liability of the replaced Master Servicer hereunder that was already
accrued at the time of the Service Transfer and except that the replaced Master
Servicer will transmit or cause to be transmitted directly to the new Master
Servicer for its own account, promptly on receipt and in the same form in which
received, any amounts (properly endorsed where required for the new Master
Servicer to collect them) received as payments upon or otherwise in connection
with the Mortgage Loans.
(c) A Service Transfer shall not affect the rights and duties of the
parties hereunder (including but not limited to the indemnities and other
agreements of the Master Servicer and CIT Consumer Finance pursuant to Article X
and Sections 3.05, 11.05 and 11.10(f)) other than those relating to the
management, administration, servicing or collection of the Mortgage Loans.
SECTION 7.06. Transfer of Certificate Account
Notwithstanding the provisions of Section 7.02, if the Certificate Account
shall be maintained with the Master Servicer and an Event of Termination shall
occur and be continuing, the Master Servicer shall, promptly after receipt of a
notice of termination, if any, pursuant to Section 7.02, establish, or cooperate
with the Trustee to establish, a new account or accounts in
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trust for the Certificateholders conforming with the requirements of this
Agreement at the trust department of the Trustee or with an Eligible Institution
other than the Master Servicer and promptly transfer, or cooperate with the
Trustee to transfer, all funds in the Certificate Account to such new account,
which shall thereafter be deemed the Certificate Account for the purposes
hereof.
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ARTICLE VIII
DISTRIBUTIONS AND WITHDRAWALS FROM
CERTIFICATE ACCOUNT
SECTION 8.01. Monthly Distributions
(a) Distributions on the Certificates shall be made from funds in the
Certificate Account (but only to the extent of the Amount Available for the
related Distribution Date). Each Certificateholder as of a Record Date shall be
paid on the next succeeding Distribution Date by check mailed to such
Certificateholder at the address for such Certificateholder appearing on the
Certificate Register (or, if a Class A Certificateholder holds Class A
Certificates with an aggregate Percentage Interest of Class A Certificates of at
least 5%[, a Class B Certificateholder holds Class B Certificates with an
aggregate Percentage Interest as to the Class B Certificates of at least 20%] or
a Class R Certificateholder holds Class R Certificates with an aggregate
Percentage Interest as to the Class R Certificates of at least 20%, and if such
Certificateholder so requests, by wire transfer of immediately available funds
pursuant to written instructions delivered to the Trustee at least 10 days prior
to such Distribution Date, which instructions, until revised, shall remain
operative for all Distribution Dates thereafter), such Certificateholder's
Percentage Interest of the amount to be distributed to the Class A[, the Class
B] or the Class R Certificateholders, as the case may be. Final payment on any
Certificate shall be made only upon presentation of such Certificate at the
office or agency of the Paying Agent.
(b) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, which shall credit the amount of such distribution to
the accounts of its Depository Participants in accordance with its normal
procedures. Each Depository Participant shall be responsible for disbursing such
distribution to the Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the Certificate Owners that it represents. All such credits
and disbursements with respect to a Book-Entry Certificate are to be made by the
Depository and the Depository Participants in accordance with the provisions of
the Book Entry Certificates. Neither the Trustee, the Certificate Registrar, the
Seller nor the Master Servicer shall have any responsibility therefor except as
otherwise provided by applicable law. To the extent applicable and not contrary
to the rules of the Depository, the Trustee shall comply with the provisions of
the forms of the Class A [and Class B] Certificates as set forth in Exhibit[s] A
[and B] hereto.
(c) On each Distribution Date, the Amount Available in the Certificate
Account will be distributed to Certificateholders in the amounts and in the
priorities set forth below:
[(i) the Class A Interest Distribution Amount to the Class A
Certificateholders;
(ii) [the Class B Interest Distribution Amount to the Class B
Certificateholders;
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(iii) prior to the Cross-over Date, after payment of the amounts
specified in clauses (i) and (ii) above, the Formula Principal Distribution
Amount to the Class A Certificateholders, provided, however, that the
aggregate of all amounts distributed on all Distribution Dates pursuant to
this clause (iii) shall not exceed the sum of the Original Class A
Certificate Balance;
(iv) after payment of the amounts specified in clauses (i) through
(iii) above, on and after the Cross-over Date, the Formula Principal
Distribution Amount, and, prior to the Cross-over Date, the Class B
Principal Loss Liquidation Amount to the Class B Certificateholders,
provided that the aggregate of all amounts distributed under this subclause
(iv) shall not exceed the Original Class B Certificate Balance; and
(v)] the Class R Distribution Amount to the Class R
Certificateholders.]
(d) Notwithstanding the preceding paragraph, amounts otherwise
distributable to a Certificateholder pursuant to such paragraph which are
required to be withheld and remitted to a taxing authority shall be withheld and
remitted to such taxing authority, and such amounts shall be treated as actually
distributed to such Certificateholder for all purposes of this Agreement.
(e) The Trustee shall appoint an Eligible Institution to be the paying
agent (the "Paying Agent") and cause it to make the payments to the
Certificateholders required hereunder. The Trustee initially appoints [itself],
with its office at , as such Paying Agent. The Trustee shall require the Paying
Agent (if other than the Trustee) to agree in writing that all amounts held by
it for payment hereunder will be held in trust for the benefit of the
Certificateholders and that it will notify the Trustee of any failure by the
Master Servicer to make funds available to the Paying Agent for the Payment of
amounts due on the Certificates. In respect of each Distribution Date, the
Trustee shall withdraw from the Certificate Account (to the extent of the
related Amount Available) in accordance with this Agreement and deposit in an
account established by the Paying Agent for the purpose of this Section funds
sufficient to make the distribution to Certificateholders pursuant to this
Section. Such funds shall be available to the Paying Agent by ____ A.M. on each
Distribution Date.
SECTION 8.02. Permitted Withdrawals from the Certificate Account
The Trustee may, from time to time as provided herein, make withdrawals
from the Certificate Account of amounts deposited in said account pursuant to
Section 5.05 that are attributable to the Mortgage Loans for the following
purposes:
(a) to make payments to Certificateholders in the amounts and in the manner
provided for in Section 8.01;
(b) to pay to CIT Consumer Finance with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased pursuant to Section
3.05, all amounts received thereon and not required to be distributed to
Certificateholders as of the date on which the related Scheduled Certificate
Balance or Repurchase Price is determined;
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(c) to reimburse the Master Servicer out of Liquidation Proceeds for
Liquidation Expenses incurred by it, to the extent such reimbursement is
permitted pursuant to Section 5.08;
(d) to reimburse the Master Servicer for the payment of taxes as permitted
by Section 5.10;
(e) to withdraw any amount deposited in the Certificate Account that was
not required to be deposited therein;
(f) to pay to the Master Servicer the Servicing Fee for such Distribution
Date and the Servicing Fee from any prior Distribution Date previously unpaid;
and
(g) to pay to the Master Servicer net investment earnings due to the Master
Servicer pursuant to Section 5.05(b).
Since, in connection with withdrawals pursuant to clause (b) of the
preceding paragraph, CIT Consumer Finance's entitlement thereto is limited to
collections or other recoveries on the related Mortgage Loan, the Master
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Certificate Account pursuant to such clause.
SECTION 8.03. Repurchase Option
(a) The Trust created hereby and the respective obligations and
responsibilities of the Company, the Master Servicer and the Trustee created
hereby (other than the responsibility of the Trustee to make any final
distributions to Certificateholders as set forth below) shall terminate upon the
earlier of (i) the later of the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan remaining in the Trust
or the termination of the Trust pursuant to Section 12.03, or (ii) the purchase
by the Company or the Master Servicer pursuant to the following sentence. The
Company or the Master Servicer, at their respective options and subject to
Subsection 8.03(b), may purchase all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan remaining in the Trust at any time at
which the Pool Scheduled Certificate Balance is less than __% of the Cut-off
Date Pool Certificate Balance at a price equal to the greatest of (A) 100% of
the Certificate Balance of each Mortgage Loan, (B) the aggregate fair market
value (as determined by the Master Servicer as of the close of business on such
third Business Day) of all of the assets of the Trust, and (C) the remaining
Pool Scheduled Certificate Balance as of the close of business on such third
Business Day, plus, in each case, any Unpaid Class A Interest Shortfall [and any
Unpaid Class B Interest Shortfall] as well as one month's interest at the
applicable Mortgage Loan Rate on the Scheduled Certificate Balance of each
Mortgage Loan.
(b) The Master Servicer or the Company shall not exercise the purchase
option in the last sentence of paragraph (a) above unless it shall have
delivered to the Trustee an Opinion of Counsel in form and substance
satisfactory to the Trustee to the effect that payment of the purchase price
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to the Certificateholders will not constitute a voidable preference or a
fraudulent transfer under the United States Bankruptcy Code.
(c) In the case of any purchase by the Company pursuant to the last
sentence of paragraph (a) above, the Master Servicer shall cooperate fully with
the Company in effecting such purchase and the transfer of the Mortgage Loans
and related Mortgage Loan Files and records to the Mortgage Loans. In addition,
the Master Servicer shall provide to the Trustee the certification required by
Section 5.07 and the Trustee shall, promptly following payment of the purchase
price release to the Company or the Master Servicer the Mortgage Loan Files
pertaining to the Mortgage Loans being purchases.
[SECTION 8.04. Credit Enhancement for [Class A] [Class B] Certificates.
[Text to be provided.] ]
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ARTICLE IX
THE CERTIFICATES
SECTION 9.01. The Certificates
The Class A[, the Class B] and the Class R Certificates shall be
substantially in the forms set forth in Exhibits A[, B] and C, respectively, and
shall, on original issue, be executed by manual or facsimile signature of the
Company by any one of its President, Vice Presidents, Secretary, Treasurer or
other authorized officers and authenticated by the Trustee to or upon the order
of the Company upon receipt. The Class A Certificates shall be evidenced by one
or more Class A Certificates representing $___________ initial aggregate
Certificate Balance, beneficial ownership of such Certificates to be held
through Book-Entry Certificates in minimum dollar denominations of $1,000 and
integral dollar multiples of $1,000 in excess thereof. [The Class B Certificates
shall be evidenced by [(i)] one or more Class B Certificates representing
$____________ initial aggregate Certificate Balance, beneficial ownership of
such Certificate to be held through one or more [Book-Entry] Certificates in
minimum dollar denominations of $1,000/_________ and integral dollar multiples
of $1,000 in excess thereof [and (ii) a single certificate representing
$__________ in initial Certificate Balance].] The Class R Certificates shall be
issuable in Percentage Interests.
The Certificates shall be authenticated by manual signature on behalf of
the Trustee by a duly authorized Responsible Officer or authorized signatory.
Certificates bearing the signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificate or did not hold such offices at
the date of such Certificates. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless such Certificate has
been authenticated by manual signature in accordance with this Section, and such
signature upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication,
except for those Certificates authenticated on the Closing Date, which shall be
dated the Closing Date.
SECTION 9.02. Registration of Transfer and Exchange of Certificates
(a) The Trustee shall keep at the office or agency to be maintained in
accordance with Section 12.02 a "Certificate Register" in which Trustee shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee initially appoints itself to be the
"Certificate Registrar" and transfer agent for the purpose of registering
Certificates and transfers and exchanges of Certificates as provided herein.
Promptly after the Closing Date the Trustee will give the Master Servicer, in
writing, the names of all [Class B and] Class R Certificateholders and the
Trustee will give the Master Servicer, prompt written notice of any change in
the [Class B and] Class R Certificateholders. The Trustee will give prompt
written notice to Certificateholders and the Master Servicer of any change in
the Certificate Registrar.
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(b) No transfer of any [Class B or] Class R Certificate or any interest
therein shall be made unless such transfer is made pursuant to an effective
registration statement under the Securities Act and effective registration or
qualification under applicable state securities laws or is made in a transaction
that does not require such registration or qualification. Until such time as the
[Class B and] Class R Certificates shall be registered pursuant to a
registration statement filed under the Securities Act, the [Class B and] Class R
Certificates shall bear a legend to the effect set forth in the preceding
sentence.
In the event that (i) registration of a transfer of a [Class B or] Class R
Certificate is to be made in reliance upon the exemption from registration under
the Securities Act contained in Rule 144A, (ii) the transferor delivers an
officer's certificate substantially in the form of Exhibit K-1 to each of the
Mortgage Loan Seller and the Trustee, and (iii) the transferee delivers an
officer's certificate in the form of Exhibit K-2 to the Mortgage Loan Seller and
the Trustee, the Trustee shall register such transfer.
In the event that registration of a transfer of a [Class B or] Class R
Certificate is to be made in reliance upon an exemption from registration under
the Securities Act (other than the exemption from registration contained in Rule
144A) and applicable state securities laws in order to assure compliance with
the Securities Act, the transferor or the transferee shall, as a condition to
the registration of such transfer, deliver to the Trustee and the Seller either
(i) an investment letter from the transferee for such Certificate, in the form
of Exhibit J and which is addressed to the Mortgage Loan Seller, the Master
Servicer and the Trustee or (ii) an Opinion of Counsel (which may be internal
counsel) that such transfer may be made pursuant to an exemption from the
Securities Act (other than the exemption from registration contained in Section
3(a)(2) thereof).
The Holder of a [Class B or] Class R Certificate desiring to effect a
transfer of such Certificate shall, and does hereby agree to, indemnify the
Trustee, the Company and the Master Servicer against any liability that may
result if such transfer is not so exempt or is not made in accordance with such
federal and state laws.
Neither the Seller nor the Trustee is obligated to register the [Class B
or] Class R Certificates under the Securities Act or under any state securities
laws.
Prospective transferor of [Class B or] Class R Certificates, and
prospective transferees of [Class B or] Class R Certificates that are Qualified
Institutional Buyers buying Certificates in reliance upon Rule 144A, may request
from the Master Servicer information regarding the Trust and the Trust Assets.
Within 5 Business Days of any such request, the Master Servicer shall deliver to
any such prospective transferor or transferee (i) a copy of each Monthly Report
delivered to Certificateholders since the first Distribution Date pursuant to
Section 6.05, (ii) information relating to the Seller, the Master Servicer, the
Mortgage Loans and this Agreement substantially in the form of [private
placement memorandum relating to the Class B Certificates] [Prospectus and
Prospectus Supplement relating to the Certificates], dated __________ __, ____
and (iii) such other information as may be required to comply with Rule 144A and
any interpretation thereof. The Mortgage Loan Seller authorizes the Master
Servicer to so deliver such monthly statements.
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(c) [Reserved.]
(d) Each Person who has or who acquires any Ownership Interest in a Class R
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions and to have
irrevocably appointed the Master Servicer as its attorney-in-fact to negotiate
the terms of any mandatory sale under clause (vi) below and to execute all
instruments of transfer and to do all other things necessary in connection with
any such sale, and the rights of each Person acquiring any Ownership Interest in
a Class R Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class
R Certificate shall be a Permitted Transferee and shall promptly notify the
Master Servicer of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Class R Certificate may be Transferred
without the express written consent of the Master Servicer, and the Trustee
shall not register the Transfer of any Class R Certificate without such
consent with respect to any proposed Transfer. In connection with any
proposed Transfer of any Ownership Interest in a Class R Certificate, the
Master Servicer shall, as a condition to such consent, require delivery to
it, form and substance satisfactory to it, and the proposed Transferee
shall deliver to the Master Servicer, the following:
(A) an affidavit (a "Transfer Affidavit") of the proposed
Transferee, in the form attached as Exhibit M hereto, that it is not a
"disqualified organization" within the meaning of Section 860E(e)(5)
of the Code, and that the proposed Transferee is not acquiring its
Ownership Interest in the Class R Certificate as a nominee, trustee or
agent for, or for the benefit of, any Person who is not a Permitted
Transferee; and
(B) an express agreement by the proposed Transferee to be bound
by and to abide by the provisions of this Section and the restrictions
noted on the face of the Class R Certificates.
(iii) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (ii) above, if the Master Servicer has
actual knowledge that the Transfer Affidavit is false, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee
shall be effected.
(iv) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (A) to require a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class R Certificate and (B) not to Transfer its Ownership
Interest in a Class R Certificate or to cause the Transfer of an Ownership
Interest in a Class R Certificate to any other Person if it has actual
knowledge that such Transfer Affidavit is false.
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(v) Any attempted or purported Transfer of any Ownership Interest in a
Class R Certificate in violation of the provisions of this Section shall be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported Transferee shall become a Holder of a Class R
Certificate in violation of the provisions of this Section, then, upon
discovery by or due notification of the Trustee that the registration of
Transfer of such Class R Certificate was not in fact permitted by this
Section, the last preceding Permitted Transferee shall be restored to all
rights as Holder thereof retroactive to the date of registration of
Transfer of such Class R Certificate. The Trustee shall be under no
liability to any Person for any registration of transfer of a Class R
Certificate that is in fact not permitted by this Section or for making any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement
so long as the Transfer was registered with the express prior written
consent of the Master Servicer. The Trustee shall be entitled but not
obligated to recover from any Holder of a Class R Certificate that was in
fact not a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Class R Certificate at and after either such time.
Any such payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(vi) If any purported Transferee shall become a Holder of a Class R
Certificate in violation of the restrictions in this Section, then the
Master Servicer shall have the right without notice to the Holder or any
prior Holder of such Class R Certificate, to sell such Class R Certificate
to a purchaser selected by the Master Servicer on such terms as the Master
Servicer may choose. Such purchaser may be the Master Servicer itself or
any Affiliate of the Master Servicer. The proceeds of such sale, net of
commissions (which may include commissions payable to the Master Servicer
or its Affiliates), expenses and taxes due, if any, will be remitted by the
Master Servicer to the last preceding Permitted Transferee of such Class R
Certificate, except that in the event that the Master Servicer determines
that the Holder or any prior Holder of such Class R Certificate may be
liable for any amount due under this Section or any other provision of this
Agreement, the Master Servicer may withhold a corresponding amount from
such remittance as security for such claim. The terms and conditions of any
sale under this clause (vi) shall be determined in the sole discretion of
the Master Servicer, and it shall not be liable to any Person having an
Ownership Interest in a Class R Certificate as a result of its exercise of
such discretion.
Upon notice to the Master Servicer that any legal or beneficial interest in
any portion of a Class R Certificate has been transferred, either directly or
indirectly to any person that is not a Permitted Transferee or an agent
(including a broker, nominee, or middleman) of such Transferee in contravention
of the foregoing restrictions, the Master Servicer agrees to furnish to the
Internal Revenue Service and to the transferor of such Class R Certificate or
such agent such information necessary to the application of Section 860E(e) of
the Code as may be required by the Code or any regulations or administrative
pronouncements thereunder, including but not limited to the present value of the
total anticipated excess inclusions with respect to such Class R Certificate (or
portion thereof) for periods after such transfer. At the election of the Master
Servicer, the Master Servicer may charge a reasonable fee for computing and
furnishing such information to the
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transferor or to such agent referred to above; however, the Master Servicer
shall in no event be excused from furnishing such information to the Internal
Revenue Service. The foregoing restrictions on transfer contained in this
Section 9.02(d) shall cease to apply to Transfers occurring on or after the date
on which there shall have been delivered to the Trustee, the Company and the
Master Servicer, in form and substance satisfactory to the Master Servicer, an
Opinion of Counsel that eliminating such restrictions will not cause the Trust
to fail to qualify as a REMIC at any time while the Certificates are
outstanding.
(e) At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class of authorized denominations of the same
aggregate denomination, upon surrender of the Certificates to be exchanged at
such office. Whenever any Certificates are so surrendered for exchange, the
Company shall execute and deliver, and the Trustee shall authenticate, the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for transfer or exchange
shall be duly endorsed by, or shall be accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar duly
executed by, the holder thereof or his or her attorney duly authorized in
writing.
(f) Except as provided in paragraph (e) below the Book-Entry Certificates
shall at all times remain registered in the name of the Depository or its
nominee and at all times: (i) registration of the Class A [and Class B]
Certificates may not be transferred by the Trustee except to another Depository;
(ii) the Depository shall maintain book-entry records with respect to the
Certificate Owners and with respect to ownership and transfers of such Class A
[and Class B] Certificates; (iii) ownership and transfers of registration of the
Class A [and Class B] Certificates on the books of the Depository shall be
governed by applicable rules established by the Depository; (iv) the Depository
may collect its usual and customary fees, charges and expenses from its
Depository Participants; (v) the Trustee shall deal with the Depository,
Depository Participants and indirect participating firms as representatives of
the Certificate Owners of the Class A [and Class B] Certificates for purposes of
exercising the rights of Holders under this Agreement, and requests and
directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificates Owners
it represents or of brokerage firms for which it acts as agent in accordance
with the Depository's normal procedures.
(g) If (x)(i) the Company or the Depository advises the Trustee in writing
that the Depository is no longer willing or able properly to discharge its
responsibilities as Depository, and (ii) the Trustee or the Company is unable to
locate a qualified successor, or (y) the Company at
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its sole option advises the Trustee in writing that it elects to terminate the
book-entry system through the Depository, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully registered Class A Certificates [or
Class B] Certificates (the "Definitive Certificates") to Certificate Owners
requesting the same. Upon surrender to the Trustee of the Class A Certificates
[or Class B Certificates] by the Depository, accompanied by registration
instructions from the Depository for registration, the Trustee shall issue the
Definitive Certificates. Neither the Company nor the Trustee shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates all references herein to obligations imposed upon or to
be performed by the Depository shall be deemed to be imposed upon and performed
by the Trustee, to the extent applicable with respect to such Definitive
Certificates and the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
(h) On or prior to the Closing Date, there shall be delivered to the
Depository one Class A Certificate [and one Class B Certificate], each in
registered form registered in the name of the Depository's nominee, Cede & Co.,
the total face amount of which represents 100% of the Original Class A
Certificate Balance, [and the Original Class B Certificate Balance,
respectively]. If, however, the aggregate principal amount of [a Class of] Class
A Certificates [or the Class B Certificates] exceeds $_______________, one Class
A Certificate [and/or one Class B Certificate] will be issued with respect to
each $_______________________ of principal amount and an additional Certificate
[of such Class or Classes] will be issued with respect to any remaining
principal amount. Each such Class A [or Class B] Certificate registered in the
name of the Depository's nominee shall bear the following legend:
"Unless this Certificate is presented by an authorized representative of
The Depository Trust Company to the Trustee or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein."
SECTION 9.03. No Charge; Disposition of Void Certificates
No service charge shall be made to a Certificateholder for any transfer or
exchange of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates. All Certificates
surrendered for transfer and exchange shall be disposed of in a manner approved
by the Trustee.
SECTION 9.04. Mutilated, Destroyed, Lost or Stolen Certificates
If (a) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (b) there is delivered to
the Certificate Registrar and the Trustee such security or
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indemnity as may be required by each to save each of them harmless, then in the
absence of notice to the Certificate Registrar or the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
authenticate, and the Company shall execute and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of [the same Class and] same denomination. Upon the issuance of any
new Certificate under this Section 9.04, the Trustee may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses connected therewith. Any
duplicate Certificate issued pursuant to this Section 9.04 shall constitute
complete and indefeasible evidence of ownership of the Percentage Interest
evidenced thereby, as if originally issued, whether or not the destroyed, lost
or stolen Certificate shall be found at any time.
SECTION 9.05. Persons Deemed Owners
Prior to due presentation of a Certificate for registration of transfer,
the Master Servicer, the Company, the Trustee, the Paying Agent and the
Certificate Registrar may treat the person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
remittances pursuant to Section 8.01 and for all other purposes whatsoever, and
none of the Master Servicer, the Company, the Trustee, the Certificate
Registrar, the Paying Agent or any agent of the Master Servicer, the Company,
the Trustee, the Paying Agent or the Certificate Registrar shall be affected by
notice to the contrary.
SECTION 9.06. Access to List of Certificateholders' Names and Addresses
The Certificate Registrar will furnish to the Trustee, the Master Servicer
and the Company within five Business Days after receipt by the Certificate
Registrar of a request therefor from the Trustee, the Master Servicer or the
Company, in writing, a list, in such form as the Trustee, the Master Servicer or
the Company may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If Holders of Certificates
evidencing, as to any Class, Percentage Interests aggregating 25% or more
(hereinafter referred to as "Applicants") apply in writing to the Trustee, and
such application states that the Applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, afford such Applicants access during
normal business hours to the most recent list of Certificateholders held by the
Trustee. If such list is as of a date more than 90 days prior to the date of
receipt of such Applicants' request, the Trustee shall promptly request from the
Certificate Registrar a current list as provided above, and shall afford such
Applicants access to such list promptly upon receipt. Every Certificateholder,
by receiving and holding a Certificate, agrees with the Certificate Registrar
and the Trustee that none of the Company, the Master Servicer, the Certificate
Registrar or the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
SECTION 9.07. Authenticating Agents
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The Trustee may appoint one or more Authenticating Agents with power to act
on its behalf and subject to its direction in the authentication of the
Certificates. For all purposes of this Agreement, the authentication of
Certificates by the Authenticating Agent pursuant to this Section shall be
deemed to be the authentication of Certificates "by the Trustee."
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ARTICLE X
INDEMNITIES
SECTION 10.01. Liabilities to Mortgagors
No liability to any Mortgagor under any of the Mortgage Loans arising out
of any act or omission to act of the Master Servicer in servicing the Mortgage
Loans prior to the Closing Date is intended to be assumed by the Company, the
Trust or the Certificateholders under or as a result of this Agreement and the
transactions contemplated hereby and, to the maximum extent permitted and valid
under mandatory provisions of law, the Company, the Trust and the
Certificateholders expressly disclaim such assumption.
SECTION 10.02. Tax Indemnification
CIT Consumer Finance agrees to pay, and to indemnify, defend and hold
harmless the Trust, the Trustee, the Certificateholders and the Company from,
any taxes which may at any time be asserted with respect to, and as of the date
of, the transfer of the Mortgage Loans to the Trust, including, without
limitation, any sales, gross receipts, personal or real property, privilege or
license taxes (but not including any federal, state or other taxes arising out
of the creation of the Trust and the issuance of the Certificates or
distributions with respect thereto) and costs, expenses and reasonable counsel
fees in defending against the same.
SECTION 10.03. Master Servicer's Indemnities
The Master Servicer shall defend and indemnify the Company, the Trust, the
Trustee and the Certificateholders against any and all costs, expenses, losses,
damages, claims and liabilities, including reasonable fees and expenses of
counsel and expenses of litigation, in respect of any negligent or wrongful
action taken or failed to be taken by the Master Servicer with respect to any
Mortgage Loan. This indemnity shall survive any Service Transfer (but a Master
Servicer's obligations under this Section 10.03 shall not relate to any actions
of any subsequent Master Servicer after a Service Transfer) and any payment of
the amount owing under, or any repurchase by CIT Consumer Finance of, any such
Mortgage Loan.
SECTION 10.04. Operation of Indemnities
Indemnification under this Article shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation. If CIT
Consumer Finance or the Master Servicer has made any indemnity payments to the
Trustee, the Company or the Certificateholders pursuant to this Article and if
either the Trustee, the Company or the Certificateholders thereafter collects
any of such amounts from others, the Trustee, the Company or the Trust will
repay such amounts collected to CIT Consumer Finance or the Master Servicer, as
the case may be, without interest.
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ARTICLE XI
THE TRUSTEE
SECTION 11.01. Duties of Trustee
The Trustee, prior to the occurrence of an Event of Termination and after
the curing of all Events of Termination which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. If an Event of Termination has occurred (which has not been cured),
the Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform as to form to the requirements of this Agreement.
Subject to Section 11.03, no provision of this Agreement shall be construed
to relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own misconduct; provided, however, that:
(a) Prior to the occurrence of an Event of Termination, and after the
curing of all such Events of Termination which may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Agreement, the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement against the
Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to
the Trustee and conforming to the requirements of this Agreement;
(b) The Trustee shall not be personally liable for an error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(c) The Trustee shall not be personally liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Class A Certificates [or Class B Certificates]
evidencing Percentage Interests aggregating 25% or more relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(d) The Trustee shall not be charged with knowledge of any event referred
to in Section 7.01 unless a Responsible Officer of the Trustee at the Corporate
Trust Office obtains
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actual knowledge of such event or the Trustee receives written notice of such
event from the Master Servicer or the Holders of Certificates evidencing[, as to
any Class,] Percentage Interests aggregating 25% or more.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it. None
of the provisions contained in this Agreement shall in any event require the
Trustee to perform, or be responsible for the manner of performance of, any of
the obligations of CIT Consumer Finance, the Company or the Master Servicer
under this Agreement, except during such time, if any, as the Trustee shall be
the successor to, and be vested with the rights, duties, powers and privileges
of, the Master Servicer in accordance with the terms of this Agreement.
SECTION 11.02. Certain Matters Affecting the Trustee
Except as otherwise provided in Section 11.01:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate, certificate of a
Servicing Officer, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) The Trustee may consult with counsel and any opinion of any counsel
shall be full and complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and in accordance
with such opinion of counsel;
(c) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Agreement, or to institute, conduct or defend any
litigation hereunder or in relation hereto, at the request, order or direction
of any of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby; provided, however, that nothing contained herein
shall relieve the Trustee of the obligations, upon the occurrence of an Event of
Termination (which has not been cured), to exercise such of the rights and
powers vested in it by this Agreement, and to use the same degree of care and
skill in their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(d) Prior to the occurrence of an Event of Termination and after the curing
of all Events of Termination which may have occurred, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Certificateholders with aggregate Percentage
Interests representing 25% or more the Trust; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
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investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Agreement, the
Trustee may require reasonable indemnity against such cost, expense or liability
as a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Master Servicer or, if paid by the Trustee,
shall be reimbursed by the Master Servicer upon demand; and
(e) The Trustee may execute any of the trusts or powers hereunder or
perform by duties hereunder either directly or by or through agents or attorneys
and shall not be liable for any acts or omissions of such agents or attorneys if
appointed by its with due care hereunder.
SECTION 11.03. Trustee Not Liable for Certificates or Mortgage Loans
The Trustee assumes no responsibility for the correctness of the recitals
contained herein or in the Certificates (other than the Trustee's authentication
thereof). The Trustee makes no representations as to the validity or sufficiency
of this Agreement or of the Certificates (other than its authentication or
execution thereof) or of any Mortgage Loan, Mortgage Loan File or related
document. The Trustee shall not be accountable for the use or application by the
Master Servicer or CIT Consumer Finance of funds paid to CIT Consumer Finance in
consideration of conveyance of the Mortgage Loans to the Company by CIT Consumer
Finance or deposited in or withdrawn from the Certificate Account by the Master
Servicer.
SECTION 11.04. Rights of Certificateholders to Direct Trustee and to Waive
Events of Termination
Holders of Class A Certificates [and Holders of Class B Certificates]
evidencing[, as to each such Class,] Percentage Interests aggregating 25% or
more shall have the right to direct the time, method, and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee; provided, however, that, subject to Section
11.01, the Trustee shall have the right to decline to follow any such direction
of the Trustee being advised by counsel determines that the action so directed
may not lawfully be taken, or if the Trustee in good faith shall, by a
Responsible Officer or Officers of the Trustee, determine that the proceedings
so directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Certificateholders not parties to such direction;
provided further that nothing in this Agreement shall impair the right of the
Trustee to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by the Certificateholders; and provided further
that the Trustee shall instead follow the directions of the Holders of Class A
Certificates [and Holders of Class B Certificates] evidencing[, as to each such
Class,] Percentage Interests aggregating 51% or more whenever it receives
conflicting directions from Class A Certificateholders and Class B
Certificateholders. Holders of Class A Certificates [and Holders of Class B
Certificates] evidencing[, as to each such Class,] Percentage Interests
aggregating 51% or more may on behalf of Certificateholders waive any past Event
of Termination hereunder and its consequences, except a default in respect of a
covenant or provision hereof which under Section 12.07 cannot be modified or
amended without the consent of all Class A Certificateholders, and upon any such
waiver, such Event of Termination shall cease to exist and shall be deemed to
have been cured for every purpose of this Agreement; but no such waiver shall
extend to any subsequent
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or other Event of Termination or impair any right consequent thereon. [Following
the Cross-over Date, if all distributions payable to the Class A
Certificateholders have either been made or provided for in accordance with this
Agreement, then to the Holders of Class B Certificates may exercise the rights
given to the Class R Certificateholders under this Section.]
SECTION 11.05. Master Servicer to Pay Trustee's Fees and Expenses
The Master Servicer agrees:
(a) that the Master Servicer shall pay to the Trustee reasonable
compensation on each Distribution Date for all services rendered by its
hereunder (which compensation is set forth in a letter agreement between the
Master Servicer and the Trustee dated the Closing Date and which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, that the Master Servicer
shall reimburse the Trustee on each Distribution Date, to the extent requested
by the Trustee, for all reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provisions of this Agreement
(including the reasonable compensation and the expenses and disbursements of it
agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
Trust and its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The covenants in this Section 11.05 shall be for the benefit of the Trustee
in its capacities as Trustee, Paying Agent and Certificate Registrar hereunder,
and shall survive the termination of this Agreement.
SECTION 11.06. Eligibility Requirements for Trustee
The Trustee hereunder shall at all times be a corporation or a national
banking association having its principal office in a state and city acceptable
to the Company and organized and doing business under the laws of the United
States of America or any State, authorized under such laws to exercise corporate
trust powers, and, approved for insurance by the Secretary of Housing and Urban
Development pursuant to Section 2 of the National Housing Act, and shall have a
combined capital and surplus of at least $50,000,000 or shall be a member of a
bank holding system the aggregate combined capital and surplus of which is
$50,000,000 provided that the Trustee's separate capital and surplus shall at
all times be at least the amount required by Section 310(a)(2) of the Trustee
Indenture Act of 1939, as amended and the Trustee shall be subject to
supervision and examination by a federal or state authority having jurisdiction
over depositary institutions. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of a supervising or
examining authority, then for the purposes of this Section
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11.06, the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 11.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 11.07.
SECTION 11.07. Resignation or Removal of Trustee
The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Master Servicer, the Company and
[Rating Agency]. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to each of the Master Servicer and
the Company and one copy to the successor Trustee. If no successor Trustee shall
have been so appointed and shall have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If, at any time, the Trustee shall cease to be eligible in accordance with
the provisions of Section 11.06 and shall fail to resign after written request
therefor by the Company, or if at any time the Trustees shall be legally unable
to act, or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then the Company may remove the
Trustee. If the Company shall have removed the Trustee under the authority of
the immediately preceding sentence, the Company shall promptly appoint a
successor Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor Trustee. Upon appointment of any successor Trustee, the Trustee being
replaced shall change the name of the Certificate Account to the name of such
successor Trustee.
Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 11.07 shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 11.08.
SECTION 11.08. Successor Trustee
Any successor Trustee appointed as provided in Section 11.07 shall execute,
acknowledge and deliver to the Master Servicer, the Company and to its
predecessor Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee. [The predecessor Trustee shall deliver or cause to be
delivered to the successor Trustee the Mortgage Loans and Mortgage Loan Files
and any related documents and statements held by it hereunder.] The Master
Servicer, the Company and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Trustee all such rights,
powers, duties and obligations.
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No successor Trustee shall accept appointment as provided in this Section
11.08 unless at the time of such acceptance such successor Trustee shall be
eligible under the provisions of Section 11.06.
Upon acceptance of appointment by a successor Trustee as provided in this
Section 11.08, the Master Servicer shall cause notice of the succession of such
Trustee hereunder to be mailed to each Certificateholder at their addresses as
shown in the Certificate Register. If the Master Servicer fails to mail such
notice within ten days after acceptance of appointment by the successor Trustee,
the successor Trustee shall cause such notice to be mailed at the expense of the
Master Servicer.
SECTION 11.09. Merger or Consolidation of Trustee
Any Person into which the Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
the corporate trustee business of the Trustee, shall be the successor of the
Trustee hereunder, provided such Person shall be eligible under the provisions
of Section 11.06, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 11.10. Mortgagor Claims
In connection with any offset defenses, or affirmative claims for recovery,
asserted in legal actions brought by Mortgagors under one or more Mortgage Loans
based upon provisions therein or upon other rights or remedies arising from, any
legal requirements applicable to the Mortgage Loans, including, without
limitation, the Federal Trade Commission's Trade Regulation Rule Concerning
Preservation of Consumers' Claims and Defenses (16 C.F.R. ss. 433) as amended
from time to time:
(a) The Trustee is not, and shall not be deemed to be, either in any
individual capacity, as trustee hereunder or otherwise, a creditor, or a
joint venturer with or an Affiliate of, or acting in concert or cooperation
with, any seller of Mortgaged Properties, in the arrangement, origination
or making of Mortgage Loans. The Trustee is the holder of the Mortgage
Loans only as trustee on behalf of the Certificateholders, and not as a
principal or in any individual or personal capacity.
(b) The Trustee shall not be personally liable for or obligated to pay
Mortgagors, any affirmative claims asserted thereby, or responsible to
Certificateholders for any offset defense amounts applied against Mortgage
Loan payments, pursuant to such legal actions.
(c) The Trustee will pay, solely from available Trust money,
affirmative claims for recovery by Mortgagors only pursuant to final
judicial orders or judgments, or judicially-approved settlement agreements,
resulting from such legal actions.
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(d) The Trustee will comply with judicial orders and judgments which
require its actions or cooperation in connection with Mortgagors' legal
actions to recover affirmative claims against Certificateholders.
(e) The Trustee will cooperate with and assist Certificateholders in
their defense of legal actions by Mortgagors to recover affirmative claims
if such cooperation and assistance is not contrary to the interests of the
Trustee as a party such legal actions and if the Trustee is satisfactorily
indemnified for all liability, costs and expenses arising therefrom.
(f) CIT Consumer Finance hereby agrees to indemnify, hold harmless and
defend the Company, the Trustee and Certificateholders from and against any
and all liability, loss, costs and expenses of the Company, the Trustee and
Certificateholders resulting from any affirmative claims for recovery
asserted or collected by Mortgagors under the Mortgage Loans.
Notwithstanding any other provision of this Agreement, the obligation of
CIT Consumer Finance under this Section 11.10(f) shall not terminate upon a
Service Transfer pursuant to Article VII; provided, however, that CIT
Consumer Finance is not obligated under this Section on account of any
claims arising due to the actions of any successor Master Servicer.
SECTION 11.11. Separate Trustees and Co-Trustees
The Company shall have the power from time to time to appoint one or more
persons or corporations to act either as co-trustees jointly with the Trustee,
or as separate trustees, or as custodians, for the purpose of conforming to any
legal requirement, restriction or condition (i) with respect to the holding of
the Mortgage Loans and the Mortgage Loan Files or (ii) with respect to the
enforcement of a Mortgage Loan in any state in which a Mortgaged Property is
located or in any state in which any portion of the Trust is located. The
separate trustees, co-trustees, or custodians so appointed shall be trustees or
custodians for the benefit of all Certificateholders and shall, subject to the
provisions of the following paragraph, have such power, rights and remedies as
shall be specified in the instrument of appointment; provided, however, that no
such appointment shall, or shall be deemed to, constitute the appointee an agent
of the Trustee.
Every separate trustee, co-trustee and custodian shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) all powers, duties, obligations and rights conferred upon the Trustee
in respect of the receipt, custody and payment of moneys shall be exercised
solely by the Trustee;
(b) all other rights, powers, duties and obligations conferred or imposed
upon the Trustee, to the extent also imposed upon such separate trustees,
co-trustees or custodians, shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee, co-trustee, or custodian
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed, the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including
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holding of the Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed by such separate trustee, co-trustee, or custodian;
(c) no separate trustee, co-trustee or custodian hereunder shall be
personally liable by reason of any act or omission or any other separate
trustee, co-trustee or custodian hereunder; and
(d) the Company may at any time accept the resignation of or remove any
separate trustee, co-trustee or custodian, so appointed by it.
If any separate trustee, co-trustee or custodian shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Trustee, to
the extent permitted by law, without the appointment of a new or successor
trustee or custodian. The reasonable fees and expenses of any such separate
trustee, co-trustee or custodian shall be treated as additional fees and
expenses of the Trustee subject to Section 11.05 and payable by the Master
Servicer if and only to the extent the Master Servicer shall have consented in
writing to his or its appointment, which consent shall not be unnecessarily
withheld.
SECTION 11.12. Trustee May Own Certificates
The Trustee in its individual or other capacity may become the owner or
pledgee of Certificates representing less than all the beneficial interest in
the Trust with the same rights as it would have if it were not Trustee.
SECTION 11.13. Agents of Trustee
To the extent not prohibited by law and not inconsistent with the terms of
this Agreement (including, without limitation, Section 11.11), the Trustee may,
with the prior consent of the Company, appoint one or more agents to carry out
ministerial matters on behalf of the Trustee under this Agreement.
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ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Master Servicer Not To Resign
The Master Servicer shall not resign from the obligations and duties hereby
imposed on it except upon determination that the performance of its duties
hereunder is no longer permissible under applicable law. Any such determination
permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Counsel for the Master Servicer to such effect delivered to the
Trustee. No such resignation shall become effective until the Trustee or a
successor Master Servicer shall have assumed the responsibilities and
obligations of the Master Servicer in accordance with Section 7.03.
SECTION 12.02. Maintenance of Officer or Agency
The Trustee will maintain an office in ____________. Such offices are
currently located at the addresses set forth in Section 12.09. The Trustee will
give prompt written notice to Certificateholders of any change in the location
of the Certificate Register or any such office or agency.
SECTION 12.03. Termination
(a) Subject to the other provisions of this Section, the respective
obligations and responsibilities of the Company, the Master Servicer and the
Trustee created hereby (other than the obligation of the Trustee to make certain
payments after the Final Distribution Date to Certificateholders and the
obligation of the Master Servicer to send certain notices as hereinafter set
forth) shall terminate upon the last action required to be taken by the Trustee
on the Distribution Date pursuant to this Section 12.03 following the earlier
of: (i) the purchase by the Company or the Master Servicer on any Distribution
Date of all Mortgage Loans and all property acquired in respect of any Mortgage
Loan remaining in the Trust pursuant to Section 8.03 or (ii) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan remaining in the Trust or the disposition of all property acquired upon
foreclosure of any Mortgaged Property; provided, however, that in no event shall
the trust created hereby continue beyond the expiration of 21 years from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
(b) Notice of any termination, specifying the Final Distribution Date
(which shall be a date that would otherwise be a Distribution Date) upon which
the Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation, shall be given promptly by
the Master Servicer (if the Company or the Master Servicer is exercising its
right to purchase the assets of the Trust) or by the Trustee (in any other case)
by letter to Certificateholders mailed out not earlier than the 15th day and not
later than the 25th day of the month (or, in the case of final payment of
liquidation of the last contract remaining in the Trust, as
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promptly as practicable after receipt of such final payment or liquidation) next
preceding the month of such final distribution specifying (i) the Final
Distribution Date upon which final payment of the Certificates will be made upon
presentation and surrender of the Certificates at the office or agency of the
Trustee therein designated, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office or agency of the Trustee herein specified. [Such
notice shall provide that, in addition to any other office or agency of the
Trustee designated therein, the presentation and surrender of Certificates as
aforesaid may occur at an office or agency of the Trustee in New York City
specified therein.] If the Master Servicer is obligated to give notice to
Certificateholders as aforesaid, it shall give such notice to the Trustee, the
Certificate Registrar and to [Rating Agency] at the time such notice is given to
Certificateholders. In the event such notice is given by the Master Servicer,
the Company or the Master Servicer shall deposit in the Certificate Account on
or before the Final Distribution Date in immediately available funds an amount
equal to the purchase price for the assets of the Trust computed as above
provided.
(c) Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to Certificateholders on the Final Distribution Date in
proportion to their respective Percentage Interests an amount equal to (i) as to
Class A Certificates, the Class A Certificate Balance, together with any Unpaid
Class A Interest Shortfall and one month's interest at the Class A Pass-Through
Rate on the Class A Certificate Balance[, (ii) as to Class B Certificates, the
Class B Certificate Balance together with any Unpaid Class B Interest Shortfall
and one month's interest at the Class B Pass-Through Rate on the Class B
Certificate Balance] and (iii) as to Class R Certificates, the amount which
remains on deposit in the Certificate Account (other than amounts retained to
meet claims) after application pursuant to clauses (i)[, (ii)] and (iii) above.
The distribution on the Final Distribution Date shall be in lieu of the
distribution otherwise required to be made on such Distribution Date in respect
of each Class of Certificates.
(d) In the event that all of the Certificateholders shall not surrender
their Certificates for final payment and cancellation on or before the Final
Distribution Date, the Trustee shall on such date cause all funds in the
Certificate Account not distributed in final distribution to Certificateholders
to be withdrawn therefrom and credited to the remaining Certificateholders by
depositing such funds in a separate escrow account for the benefit of such
Certificateholders, and the Master Servicer (if the Company or the Master
Servicer exercised its right to purchase the assets of the Trust) or the Trustee
(in any other case) shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If, within one year after the
second notice, all the Certificates shall not have been surrendered for
cancellation, the Trustee may take appropriate steps, or may appoint an agent to
take appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds on deposit in such escrow account.
(e) Upon any termination pursuant to this Section, the Trust shall be
terminated in accordance with the following additional requirements, unless the
Trustee has received an Opinion of Counsel to the effect that the failure of the
Trust to comply with the requirements of this Section will not (i) result in the
imposition of taxes on "prohibited transactions" of the Trust as
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described in Section 860F of the Code, or (ii) cause the Trust to fail to
qualify as a REMIC at any time that any Class A [or Class B] Certificates are
outstanding:
(i) Within 90 days prior to the Final Distribution Date set forth in
the notice given by the Master Servicer or the Trustee under this Section,
the Holders of 100% of the aggregate Percentage Interests evidenced by the
Class R Certificates shall adopt a plan of complete liquidation of the
Trust; and
(ii) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the Final Distribution Date, the Master
Servicer as agent of the Trustee shall sell all of the assets of the Trust
to the Company or the Master Servicer as the case may be, for cash.
By their acceptance of the Class R Certificates, the holders thereof hereby
agree to adopt such a plan of complete liquidation upon the written request of
the Master Servicer or the Company and to take such other action in connection
therewith as may be reasonably requested by CIT Consumer Finance.
SECTION 12.04. Acts of Certificateholders
(a) Except as otherwise specifically provided herein, whenever
Certificateholder approval, authorization, direction, notice, consent, waiver,
or other action is required hereunder, such approval, authorization, direction,
notice, consent, waiver or other action shall be deemed to have been given or
taken on behalf of, and shall be binding upon, all Certificateholders if agreed
to by Holders of Certificates of the specified Class or Classes evidencing, as
to each such Class, Percentage Interests aggregating 51% or more.
(b) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where required, to the Master Servicer. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Agreement and (subject to Section
11.01) conclusive in favor of the Trustee, the Master Servicer and the Company
if made in the manner provided in this Section.
(c) The fact and date of the execution by any Certificateholder of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(d) The ownership of Certificates shall be proved by the Certificate
Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Certificateholder shall bind every holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything
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done, or omitted to be done by the Trustee, the Master Servicer or the Company
in reliance thereon, whether or not notation of such action is made upon such
security.
(f) The Trustee may require such additional proof of any matter referred to
in this Section as it shall deem necessary.
SECTION 12.05. Calculations
Except as otherwise provided in this Agreement, all interest rate and basis
point calculations under this Agreement will be made on the basis of a 360-day
year consisting of twelve thirty-day months and will be carried out to at least
three decimal places.
SECTION 12.06. Assignment or Delegation by the Master Servicer; Merger or
Consolidation of the Company, CIT Consumer Finance or the Master Servicer
Except as specifically authorized hereunder, and except for its obligations
as Master Servicer, in respect of which a transfer thereof is dealt with under
Article VII, the Master Servicer may not assign or delegate any of its rights or
obligations hereunder, except its right to receive any fees pursuant to this
Agreement, absent the prior written consent of Holders of Certificates of each
Class evidencing, as to each such Class, Percentage Interests aggregating
66-1/2% or more, and any attempt to do so without such consent shall be void.
Notwithstanding the foregoing, CIT Consumer Finance may not delegate its
obligation to repurchase contracts under Section 3.05.
Notwithstanding the foregoing, any person into which the Company, CIT
Consumer Finance or the Master Servicer may be merged or consolidated, or any
corporation resulting from any merger or consolidation to which the Company, CIT
Consumer Finance or the Master Servicer shall be a party, or any Person
succeeding to the business of the Company, CIT Consumer Finance or the Master
Servicer, shall be the successor of the Company, CIT Consumer Finance or the
Master Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or surviving
Person to the Master Servicer shall satisfy the criteria set forth in the
definition of an Eligible Master Servicer. Each of CIT Consumer Finance, the
Company and the Master Servicer shall promptly notify [Rating Agency] of any
such merger to which it is a party.
Neither the Master Servicer nor the Company, nor any of the directors,
officers, employees or agents of the Master Servicer or the Company, shall be
under any liability to the Trustee or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Master Servicer, the Company or any such person
against any breach of warranties or representations made herein, or failure to
perform its or his obligations in compliance with any standard of care set forth
in this Agreement, or any liability which otherwise would be imposed by reason
of any breach of the terms and conditions of this Agreement. The Master
Servicer, the Company and any director, officer, employee or agent of the
Company may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
Neither the Master Servicer nor the Company
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shall be under any obligation to appear in, prosecute or defend any legal
action, which arises under this Agreement and which in its opinion may involve
it in any expenses or liability; provided, however, that the Master Servicer or
the Company may in its discretion undertake any such action which it may deem
necessary or desirable to in respect of this Agreement and the rights and duties
of the parties hereto. In such event, the legal expenses and costs of such
action and any liability resulting therefrom shall be expenses, costs and
liabilities payable from the Certificate Account and the Master Servicer and the
Company shall be entitled to be reimbursed therefor out of the Certificate
Account.
SECTION 12.07. Amendment
(a) This Agreement may be amended from time to time by the Company, the
Master Servicer and the 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
Agreement which shall not be inconsistent with the provisions of this Agreement,
(iii) to add or amend any provisions as required by [Rating Agency] or another
NRSRO in order to maintain any rating of the Class A [or Class B] Certificates
(it being understood that, after the rating required by Section 2.02 hereof has
been obtained, neither the Trustee, the Company nor CIT Consumer Finance is
obligated to maintain or improve such rating); provided, however, that such
action shall not, as evidenced by an Opinion of Counsel for the Master Servicer
or the Company, adversely affect in any material respect the interests of any
Certificateholder (including, without limitation, the maintenance of the status
of the Trust as a REMIC under the Code and under relevant state and local law).
(b) This Agreement may also be amended from time to time by the Company,
the Master Servicer and the Trustee, with the consent of Holders of Certificates
of each Class affected thereby evidencing, as to each such Class, Percentage
Interests aggregating 51% or more, for the purpose of adding any of the
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of 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, collections of payments on
the Mortgage Loans or distributions which are required to be made on any
Certificate without the consent of the holder of each Certificate affected
thereby, (ii) reduce the aforesaid percentage required to consent to any such
amendment, without the consent of the holders of all Certificates then
outstanding, (iii) result in the disqualification of the Trust as a REMIC under
the Code, (iv) adversely affect the status of the Trust as a REMIC or the status
of the Certificates as "regular interests" therein, (v) cause any tax (other
than any tax imposed on "net income from foreclosure property" under Section
860G(c)(1) of the Code that would be imposed without regard to such amendment)
to be imposed on the Trust, including, without limitation, any tax imposed on
"prohibited transactions" under Section 860G(d)(1) of the Code, or (vi)
adversely affect in any material respect the interest of the Class R
Certificateholders without the unanimous consent of the Class R
Certificateholders.
(c) This Agreement may also be amended from time to time, without the
consent of any of the Certificateholders, by the Company, the Master Servicer
and the Trustee to
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modify, eliminate or add to the provisions of this Agreement to such extent as
shall be necessary to (i) maintain the qualification of the Trust as a REMIC
under the Code and under relevant state and local law or avoid, or reduce the
risk of, the imposition of any tax on the Trust under the Code that would be a
claim against the Trust assets, provided that (A) there shall have been
delivered an Opinion of Counsel addressed to the Trustee to the effect that such
action is necessary to maintain such qualification or avoid any such tax or
reduce the risk of its imposition and (B) such amendment shall not have any of
the effects described in the proviso to Section 12.07(a), or (ii) prevent the
Trust from entering into any "prohibited transaction" as defined in Section 860F
of the Code, provided that such amendment shall not, as evidenced by an Opinion
of Counsel, adversely affect in any material respect the interests of any
Certificateholder (including, without limitation, the maintenance of the Trust
as a REMIC under the Code and under relevant state and local law).
(d) This Agreement shall not be amended under this section without the
consent of any of the Certificateholders if such amendment would result in the
disqualification of the Trust as a REMIC under the Code or relevant state and
local law.
(e) Promptly after the execution of any amendment or consent pursuant to
this Section, the Trustee shall furnish written notification of the substance of
such amendment to each Certificateholder (but only if such amendment is pursuant
to Section 12.07(b) and affects the Class of Certificates held by such
Certificateholder) and to [Rating Agency], which notification will be prepared
by the Master Servicer and delivered to the Trustee.
(f) It shall not be necessary for the consent of Certificateholders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Trustee may prescribe.
(g) The Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee's own rights, duties or immunities under
this Agreement or otherwise.
(h) In connection with any amendment pursuant to this Section, the Trustee
shall be entitled to receive an Opinion of Counsel to the Master Servicer to the
effect that such amendment is authorized or permitted by the Agreement.
(i) Upon the execution of any amendment or consent pursuant to this
Section, this Agreement shall be modified in accordance therewith, and such
amendment or consent shall form a part of this Agreement for all purposes, and
every Holder of Certificates theretofore or thereafter issued hereunder shall be
bound thereby.
SECTION 12.08. Contribution of Assets
Following the Closing Date, the Trustee shall not accept any contribution
of additional assets to the Trust unless the Trustee has received an Opinion of
Counsel addressed to the Trustee to the effect that (i) the contribution of such
assets into the Trust will not cause the Trust
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to fail to qualify as a REMIC under the Code and under the relevant state and
local law and (ii) such contribution will not cause the imposition of a tax on
"prohibited transactions" (as defined in Section 860F of the Code or under
similar provisions under the relevant state and local law) or on contributions
to the Trust after the "start-up day" (as defined in Section 860G of the Code or
under similar provisions under the relevant state and local law) with respect
thereto.
SECTION 12.09. Notices
All communications and notices pursuant hereto to the Company, the Master
Servicer and the Trustee and [Rating Agency] shall be in writing and delivered
or mailed to it at the appropriate following address:
If to the Company:
The CIT Group Securitization Corporation III
000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
If to the Master Servicer:
The CIT Group/Consumer Finance, Inc.
000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
If to the Trustee:
_________________________________
_________________________________
_________________________________
If to the Paying Agent:
_________________________________
_________________________________
_________________________________
If to [Rating Agency]:
_________________________________
_________________________________
_________________________________
or at such other address as the party may designate by notice to the other
parties hereto, which notice shall be effective when received.
All communications and notices pursuant hereto to a Certificateholder shall
be in writing and delivered or mailed at the address shown in the Certificate
Register.
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SECTION 12.10. Merger and Integration
Except as specifically stated otherwise herein, this Agreement sets forth
the entire understanding of the parties relating to the subject matter hereof,
and all prior understandings, written or oral, are superseded by this Agreement.
This Agreement may not be modified, amended, waived, or supplemented except as
provided herein.
SECTION 12.11. Headings
The headings herein are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
SECTION 12.12. Governing Law
This Agreement shall be governed by, and construed and enforced in
accordance with the laws of the State of New York, without regard to its
conflict-of-laws provisions.
SECTION 12.13. Counterparts
This Agreement may be executed in two or more counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the 1st
day of _________, 199_.
THE CIT GROUP/CONSUMER FINANCE, INC.
By: ___________________________
Name:
Title:
THE CIT GROUP SECURITIZATION
CORPORATION III
By: ___________________________
Name:
Title:
[TRUSTEE]
not in its individual
capacity but solely as
Trustee
By:
Name:
Title:
-70-
EXHIBITS TO POOLING AND SERVICING AGREEMENT
-71-
Exhibit A
[FORM OF CLASS A CERTIFICATE]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.]
Class A (Senior) No.
Date of Pooling and Servicing Agreement: Pass-Through Rate: ____%
As of _____ __, 199_
Denomination: $__________
Cut-off Date: _____ __, 199_ Aggregate Denomination of all Class A
Certificates: $_______
First Distribution Date: First Distribution Date:
________ __, 199_ ________ __, 199_
Master Servicer: The CIT Group/Consumer CUSIP: _______________
Finance, Inc.
A-1
HOME EQUITY LOAN
SENIOR/SUBORDINATE ASSET BACKED CERTIFICATES,
SERIES 199_, CLASS A (SENIOR)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN THE
CIT GROUP SECURITIZATION CORPORATION III, THE CIT GROUP/CONSUMER FINANCE, INC.
OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that ___________________ is the registered owner of the
undivided Percentage Interest represented by the denomination specified above in
certain monthly distributions with respect to a Trust consisting of a pool of
mortgage loans (including, without limitation, all related security interests
and any and all rights to receive payments which are due pursuant thereto on or
after ______ __, 199_) formed and sold by The CIT Group Securitization
Corporation III (the "Company"). The Trust has been created pursuant to a
Pooling and Servicing Agreement (the "Agreement"), dated as of ______ __, 199__,
among the Company, as Depositor, The CIT Group/Consumer Finance, Inc., as Seller
and Master Servicer, and _____________, as trustee of the Trust (the "Trustee").
This Certificate is one of the Certificates described in the Agreement and is
issued pursuant and subject to the Agreement. By acceptance of this Certificate,
the holder assents to and becomes bound by the Agreement. To the extent not
defined herein, all capitalized terms have the meanings assigned to such terms
in the Agreement.
The Agreement contemplates, subject to its terms, payment on the _____ day
(or if such day is not a Business Day, the next succeeding Business Day) (the
"Distribution Date") of each calendar month commencing ______ __, 199_ so long
as the Agreement has not been terminated, by check (or, if such
Certificateholder holds a Class of Class A Certificates with an aggregate
Percentage Interest of at least 5% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such
Distribution Date) to the registered Certificateholder at the address appearing
on the Certificate Register as of the last Business Day of the immediately
preceding calendar month, in an amount equal to the Certificateholder's
Percentage Interest of the portion of the [Class A Distribution Amount] to be
distributed to such Class of Class A Certificates. The final scheduled
Distribution Date of this Certificate is ______ __, ____ or the next succeeding
Business Day if such date is not a Business Day.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account to the extent
available for distribution to the Certificateholder as provided in the Agreement
for payment hereunder and that the Trustee in its individual capacity is not
personally liable to the Certificateholder for any amounts payable under this
Certificate or the Agreement or, except as expressly provided in the Agreement,
subject to any liability under the Agreement. By acceptance of this Certificate,
the Certificateholder agrees to disclosure of his, her or its name and address
to other Certificateholders under the conditions specified in the Agreement.
A-2
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all Amendments
thereto will be provided to any Certificateholder free of charge upon a written
request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
_____________, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
holder thereof or his or her attorney duly authorized in writing, and thereupon
one or more new Certificates evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
[Unless this Certificate is presented by an authorized representative of
The Depository Trust Company to the Trustee or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.]
The Company, the Master Servicer, the Trustee, the Paying Agent and the
Certificate Registrar and any agent of the Company, the Master Servicer, the
Trustee, the Paying Agent or the Certificate Registrar may treat the person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Company, the Master Servicer, the Trustee, the Paying Agent, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
A-3
Unless this Certificate has been authenticated by the Trustee or its
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Company has caused this Certificate to be duly
executed.
Dated: THE CIT GROUP SECURITIZATION
CORPORATION III
By:__________________________
Authorized Officer
[Form of Certificate of Authentication]
This is one of the Certificates referred
to in the within-mentioned Agreement.
_______________________, or [TRUSTEE]
Authenticating Agent
By:________________________ By:__________________________
Authorized Signatory
A-4
Exhibit B
[Form of Class B Certificate]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES
TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR "BLUE SKY" LAWS
IN RELIANCE UPON EXEMPTIONS PROVIDED BY SUCH ACTS. NO TRANSFER OF THIS
CERTIFICATE SHALL BE MADE UNLESS SUCH TRANSFER IS MADE PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR IS MADE IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT, INCLUDING A TRANSFER MADE
IN ACCORDANCE WITH THE EXEMPTION PROVIDED IN RULE 144A OF THE SECURITIES ACT,
AND APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS, AND UNLESS SUCH TRANSFER IS
MADE IN ACCORDANCE WITH SECTION 9.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.]
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.]
Class B (Subordinate) No. ____
Date of Pooling and Servicing Pass-Through Rate: ____%
Agreement: As of _____ __, 199_
Denomination: $_____________
Cut-off Date: _____ __, 199_ Aggregate Denomination of all
Class B Certificates: $________
First Distribution Date: Final Distribution Date:
_______ __, 199__ ____________ __, ____
Master Servicer: The CIT Group/Consmuer CUSIP:__________________________
Finance, Inc.
B-1
HOME EQUITY LOAN
SENIOR/SUBORDINATE ASSET BACKED CERTIFICATES,
SERIES 199_, CLASS B (SUBORDINATE)
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN THE
CIT GROUP SECURITIZATION CORPORATION III, THE CIT GROUP/CONSUMER FINANCE, INC.
OR ANY AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET FORTH IN THE AGREEMENT.
This certifies that ___________________ is the registered owner of the
undivided Percentage Interest represented by the denomination specified above in
certain monthly distributions with respect to a Trust consisting of a pool of
mortgage loans (including, without limitation, all related security interests
and any and all rights to receive payments which are due pursuant thereto on or
after ______ __, 199_) formed and sold by The CIT Group Securitization
Corporation III (the "Company"). The Trust has been created pursuant to a
Pooling and Servicing Agreement (the "Agreement"), dated as of ______ __, 199_,
among the Company, as Depositor, The CIT Group/Consumer Finance, Inc., as Seller
and Master Servicer, and _____________, as trustee of the Trust (the "Trustee").
This Certificate is one of the Certificates described in the Agreement and is
issued pursuant and subject to the Agreement. By acceptance of this Certificate
the holder assents to and becomes bound by the Agreement. To the extent not
defined herein, all capitalized terms have the meanings assigned to such terms
in the Agreement.
The Agreement contemplates, subject to its terms, payment on the _____ day
(or if such day is not a Business Day, the next succeeding Business Day) (the
"Distribution Date") of each calendar month commencing ______ __, 199_ so long
as the Agreement has not been terminated, by check (or, if such
Certificateholder holds Class B Certificates with an aggregate Percentage
Interest of at least 20% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least 10 days prior to such
Distribution Date) to the registered Certificateholder at the address appearing
on the Certificate Register as of the last Business Day of the immediately
preceding calendar month, in an amount equal to the Certificateholder's
Percentage Interest of the [Class B Distribution Amount]. The final scheduled
Distribution Date of this Certificate is ______ __, ____ or the next succeeding
Business Day if such date is not a Business Day.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds in the Certificate Account [and the Available
Credit Enhancement Amount], to the extent available for distribution to the
Certificateholder as provided in the Agreement, for payment hereunder and that
the Trustee in its individual capacity is not personally liable to the
Certificateholder for any amounts payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement. By acceptance of this Certificate, the
Certificateholder agrees to disclosure of his, her or its name and address to
other Certificateholders under the conditions specified in the Agreement.
B-2
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and immunities of the Trustee. Copies of the Agreement and all Amendments
thereto will be provided to any Certificateholder free of charge upon a written
request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Certificate is registrable in the Certificate
Register of the Certificate Registrar upon surrender of this Certificate for
registration of transfer at the office or agency maintained by the Trustee in
_____________, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
holder thereof or his or her attorney duly authorized in writing, and thereupon
one or more new Certificates evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
[Unless this Certificate is presented by an authorized representative of
The Depository Trust Company to the Trustee or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.]
[This Certificate has not been registered or qualified under the Securities
Act or any state securities law.]
[No transfer, sale, pledge or other disposition of any Certificate or any
interest therein shall be made unless such transfer is made pursuant to an
effective registration statement under the Securities Act and effective
registration or qualification under applicable state securities laws or is made
in a transaction that does not require such registration or qualification.]
[In the event that (i) registration of a transfer of this Certificate is to
be made in reliance upon the exemption from registration under the Securities
Act contained in Rule 144A, (ii) the Holder of this Certificate delivers an
officer's certificate substantially in the form of Exhibit K-1 to the Pooling
and Servicing Agreement to each of the Seller and the Trustee, and (iii) the
transferee of this Certificate delivers an officer's certificate in the form of
Exhibit K-2 to the Agreement to the Seller and the Trustee, the Trustee shall
register such transfer.]
[In the event that registration of a transfer is to be made in reliance
upon an exemption from registration under the Securities Act (other than the
exemption from registration contained in Rule 144A) and applicable state
securities laws, the Company shall require, in order to assure compliance with
the Securities Act, the transferee or the transferor of this Certificate to
deliver to the Company and the Trustee either (i) an investment letter from such
transferee in the form of Exhibit J to the Agreement, or (ii) an Opinion of
Counsel that such transfer may be made pursuant to an exemption from the
Securities Act (other than the exemption from registration contained in Section
3(a)(2) thereof).]
B-3
[Neither the Company nor the Trustee is obligated to register this
Certificate under the Securities Act or under any state securities laws.]
[No service charge will be made for any such registration of transfer of
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.]
The Company, the Master Servicer, the Trustee, the Paying Agent and the
Certificate Registrar and any agent of the Company, the Master Servicer, the
Trustee, the Paying Agent or the Certificate Registrar may treat the person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Company, the Master Servicer, the Trustee, the Paying Agent, the
Certificate Registrar nor any such agent shall be affected by any notice to the
contrary.
Unless this Certificate has been authenticated by the Trustee or its
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Company has caused this Certificate to be duly
executed.
Dated: THE CIT GROUP SECURITIZATION
CORPORATION III
By:__________________________
Authorized Officer
[Form of Certificate of Authentication]
This is one of the Certificates referred
to in the within mentioned Agreement.
_______________________, or [TRUSTEE]
Authenticating Agent
By:________________________ By:__________________________
Authorized Signatory Authorized Signatory
B-4
Exhibit C
[FORM OF CLASS R CERTIFICATE]
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES
AND THE CLASS B CERTIFICATES TO THE EXTENT SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR "BLUE SKY" LAWS
IN RELIANCE UPON EXEMPTIONS PROVIDED BY SUCH ACTS. NO TRANSFER OF THIS
CERTIFICATE SHALL BE MADE UNLESS SUCH TRANSFER IS MADE PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR IS MADE IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT, INCLUDING A TRANSFER MADE
IN ACCORDANCE WITH THE EXEMPTION PROVIDED IN RULE 144A OF THE SECURITIES ACT,
AND APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS, AND UNLESS SUCH TRANSFER IS
MADE IN ACCORDANCE WITH SECTION 9.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
[SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE.
THIS CERTIFICATE MAY ONLY BE TRANSFERRED TO A PERMITTED TRANSFEREE (AS DEFINED
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN); ANY SUCH TRANSFER
MUST ALSO SATISFY THE OTHER REQUIREMENTS OF SECTION 9.02 OF SUCH POOLING AND
SERVICING AGREEMENT.]
Class R (Subordinate) No. ___
Date of Pooling and Servicing Percentage Interest: ____%
Agreement: As of _____ __, 199_
Cut-off Date: ____ __, 199_
First Distribution Date:
_______ __, 199_
Master Servicer: The CIT Group/Consumer
Finance, Inc.
C-1
HOME EQUITY LOAN SENIOR/SUBORDINATE
ASSET BACKED CERTIFICATES, SERIES 199_
Initial Principal Amount of the Trust: $________
This certifies that __________ is the registered owner of the undivided
Percentage Interest stated above in the Residual Interest in the Trust referred
to herein, and entitled to certain distributions with respect to such Trust,
which Trust consists of a pool of mortgage loans, including, without limitation,
all related security interests and any and all rights to receive payments which
are due pursuant thereto on or after ______ __, 199_ (the "Mortgage Loans")
formed and sold by The CIT Group Securitization Corporation III (the "Company").
The Trust has been created pursuant to a Pooling and Servicing Agreement (the
"Agreement"), dated as of ______ __, 199_, between the Company, as Depositor,
and The CIT Group/Consumer Finance, Inc., as Seller and Master Servicer,
and/National Association, as Trustee of the Trust (the "Trustee"). This Class R
Certificate is one of the Class R Certificates described in the Agreement and is
issued pursuant and subject to the Agreement. By acceptance of this Class R
Certificate the holder assents to and becomes bound by the Agreement. To the
extent not defined herein, all capitalized terms have the meanings assigned to
such terms in the Agreement.
The Agreement contemplates, subject to its terms, payment on the _____ day
(or if such is not a Business Day, the next succeeding Business Day) (the
"Distribution Date") of each calendar month commencing ______ __, 199_, so long
as the Agreement has not been terminated, by check (or, if such Class R
Certificateholder holds Class R Certificates with an aggregate Percentage
Interest of at least 20% and so desires, by wire transfer pursuant to
instructions delivered to the Trustee at least ten days prior to such
Distribution Date) to the registered Class R Certificateholder at the address
appearing on the Certificate Register as of the last Business Day of the
immediately preceding calendar month (each such month during the term of this
Agreement constituting a "Due Period"), in an amount equal to [the difference
between (A) the Amount Available, and (B) the sum of (i) [the Class A
Distribution Amount], (ii) [the Class B Distribution Amount], (iii) the Monthly
Servicing Fee, (iv) amounts to reimburse the Class R Certificateholder for
expenses incurred by and reimbursable to it, [and (v) the Credit Enhancement
Fee]]. The final scheduled Distribution Date of this Class C Certificate is
______ __, ____ or the next succeeding Business Day if such date is not a
Business Day.
The Class R Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds in the Certificate Account to the
extent available for distribution to the Class R Certificateholder as provided
in the Agreement for payment hereunder and that the Trustee in its individual
capacity is not personally liable to the Class R Certificateholder for any
amounts payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the Agreement. By
acceptance of this Certificate, the Certificateholder agrees to disclosure of
his, her or its name and address to other Certificateholders under the
conditions specified in the Agreement.
C-2
This Class R Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Class R Certificateholder
free of charge upon a written request to the Trustee.
As provided in the Agreement and subject to the limitations set forth
therein, the transfer of this Class R Certificate is registrable in the
Certificate Register of the Certificate Registrar upon surrender of this Class R
Certificate for registration of transfer at the office or agency maintained by
the Trustee in ________, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
holder thereof or his or her attorney duly authorized in writing, and thereupon
one or more new Class R Certificates evidencing the same aggregate amount of
Class R Certificates will be issued to the designated transferee or transferees.
As provided in the Agreement and subject to certain limitations therein set
forth, this Class R Certificate is exchangeable for new Class R Certificates of
authorized denominations evidencing the same aggregate Percentage Interest as
requested by the holder surrendering the same.
No transfer of a Class R Certificate will be made unless such transfer is
exempt from the registration requirements of the Securities Act of 1933, as
amended, and any applicable state securities laws or is made in accordance with
said Act and laws. The Trustee, the Company or CIT Consumer Finance may require
an opinion of counsel acceptable to and in form and substance satisfactory to
the Trustee, the Company and CIT Consumer Finance that such transfer is exempt
(describing the applicable exemption and the basis therefor) from or is being
made pursuant to the registration requirements of the Securities Act of 1933, as
amended, and of any applicable statute of any state, and the transferee shall
execute an investment letter in the form described by the Agreement. The Holder
hereof desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee, the Master Servicer and the Company against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
Neither this Certificate nor any beneficial interest herein may be directly
or indirectly, assigned, sold, pledged, hypothecated or otherwise transferred
except upon satisfaction of the conditions set forth in Section 9.02(d) of the
Agreement pursuant to which this Certificate was issued. Any attempted transfer
in violation of such restrictions shall be null and void and shall vest no
rights in any purported transferee, and shall subject the Holder hereof to
liability for any tax imposed (and related expenses, if any) with respect to
such attempted transfer.
No service charge will be made for any such registration of transfer of
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Trustee and the Certificate Registrar
and any agent of the Company, the Master Servicer, the Trustee or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and
C-3
none of the Company, the Master Servicer, the Trustee, the Certificate Registrar
nor any such agent shall be affected by notice to the contrary.
[The holder of this Class R Certificate, by acceptance hereof, agrees that,
in accordance with the requirements of Section 860D(b)(1) of the Code, the
federal tax return of the Trust for its first taxable year shall provide that
the Trust elects to be treated as a "real estate mortgage investment conduit" (a
"REMIC") under the Code for such taxable year and all subsequent taxable years.
The Certificates shall be "regular interests" in the REMIC and the Class R
Certificates shall be the "residual interest" in the REMIC.]
Unless this Certificate has been authenticated by the Trustee or its
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purposes.
IN WITNESS WHEREOF, the Company has caused this Certificate to be duly
executed.
Dated: THE CIT GROUP SECURITIZATION
CORPORATION III
By:_________________________
Authorized Officer
[Form of Certificate of Authentication]
This is one of the Certificates referred
to in the within mentioned Agreement.
_______________________, or [TRUSTEE]
Authenticating Agent
By______________________ By:_________________________
Authorized Signatory Authorized Signatory
C-4
Exhibit D
[FORM OF ASSIGNMENT]
In accordance with the Pooling and Servicing Agreement (the "Agreement")
dated as of ______ __, 199_, among The CIT Group/Consumer Finance Inc. ("CIT
Consumer Finance"), The CIT Group Securitization Corporation III (the
"Company"), and __________________________ Chicago, as trustee (the "Trustee"),
the Company does hereby sell, transfer, assign, set over and otherwise convey to
the Trust created by the Agreement, to be held in trust as provided in the
Agreement, (i) all the right, title and interest of the Company in and to the
Mortgage Loans, including, without limitation, the security interest created
thereby and any related Mortgages and all interest and principal received by the
Company on or with respect to the Mortgage Loans (other than principal and
interest due on the Mortgage Loans before the Cut-off Date or the date of
origination, if later), (ii) all rights under any Hazard Insurance Policy
relating to a Mortgaged Property securing a Mortgage Loan for the benefit of the
creditor of such Mortgage Loan, (iii) the proceeds from any Mortgage Loan
Holders' Errors and Omissions Protection Policy and all rights under any blanket
hazard insurance policy to the extent they relate to the Mortgaged Properties,
(iv) all documents contained in the Mortgage Loan Files, and (v) all proceeds in
any way derived from any of the foregoing. All capitalized terms used herein
without definition have the meanings ascribed to such terms in the Agreement.
This Assignment is made pursuant to and upon the representation and
warranties on the part of the undersigned contained in Article III of the
Agreement and no others.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed this ___ day of ______ __, 199_.
THE CIT GROUP SECURITIZATION
CORPORATION III
By:__________________________
Name:
Title:
D-1
Exhibit E
THE CIT GROUP/CONSUMER FINANCE, INC.
CERTIFICATE OF OFFICERS
The undersigned certify that they are the [title] and [title], respectively
of The CIT Group/Consumer Finance, Inc., a corporation organized under the laws
of Delaware ("CIT Consumer Finance"), and that as such they are duly authorized
to execute and deliver this certificate on behalf of CIT Consumer Finance in
connection with the Pooling and Servicing Agreement, dated as of ______ __, 199_
(the "Agreement"), among CIT Consumer Finance, The CIT Group Securitization
Corporation III and _______________, as Trustee (all capitalized terms used
herein without definition having the respective meanings specified in the
Agreement), and further certify that:
(i) attached hereto as Exhibit I is a true and correct copy of the
Articles of Incorporation of CIT Consumer Finance, together with all
amendments thereto as in effect on the date hereof;
(ii) attached hereto as Exhibit II is a true and correct copy of the
By-laws of CIT Consumer Finance, as amended, as in effect on the date
hereof;
(iii) the representations and warranties of CIT Consumer Finance
contained in Sections 3.01 and 3.04 of the Agreement are true and correct
on and as of the date hereof and, to the best of their knowledge, the
representations and warranties of CIT Consumer Finance contained in
Sections 3.02 and 3.03 of the Agreement are true and correct on and as of
the date hereof;
(iv) no event with respect to CIT Consumer Finance has occurred and is
continuing which would constitute an Event of Termination or an event that,
with notice or lapse of time or both, would become an Event of Termination
under the Agreement; and
E-1
(v) each of the agreements and conditions of CIT Consumer Finance to
be performed on or before the date hereof pursuant to the Agreement have
been performed in all material respects.
IN WITNESS WHEREOF, we have affixed hereunto our signatures this ______ day
of ______ __, 199_.
_________________________
[Name]
[Title]
_________________________
[Name]
[Title]
E-2
Exhibit F
[FORM OF OPINION OF COUNSEL FOR THE CIT GROUP/
CONSUMER FINANCE, INC.]
F-1
Exhibit G
FORM OF TRUSTEE'S ACKNOWLEDGMENT AND CERTIFICATION
______________________________, a National Banking Association organized
under the laws of the United States, acting as trustee (the "Trustee") of the
trust created pursuant to the Pooling and Servicing Agreement dated as of ______
__, 199_ among The CIT Group Securitization Corporation III, The CIT
Group/Consumer Finance, Inc. and the Trustee (the "Agreement"), acknowledges,
pursuant to Section 2.03 of the Agreement, that the Trustee has received, and
holds in trust thereunder the following: (i) all right, title and interest in
the mortgage loans (including, without limitation, all security interests and
any and all rights to receive payments which are due pursuant thereto from and
after ______ __, 199_, but excluding any rights to receive payments which were
due pursuant thereto prior to ______ __, 199_), identified in the List of
Mortgage Loans delivered pursuant to Section 2.02(a) of the Agreement, which
list of Mortgage Loans is also attached as an Exhibit to the Agreement, (ii) all
rights under any Hazard Insurance Policy relating to a Mortgaged Property
securing a Mortgage Loan for the benefit of the creditor of such Mortgage Loan
and all rights under any blanket hazard insurance policy and the proceeds from
any Mortgage Loan Holders' Errors and Omissions Protection Policy, to the extent
they relate to the Mortgaged Properties, (iii) all documents contained in the
Mortgage Loan Files, provided that the Mortgage Loan Files will be held by the
Master Servicer, as custodian, for the benefit of the Certificateholders and the
Trustee, and (iv) all proceeds in any way derived from any of the foregoing. The
Trustee shall issue to, or upon the order of, the Company Certificates
representing ownership of a beneficial interest in 100% of the Trust.
Capitalized terms used herein have the meanings given them in the Agreement.
IN WITNESS WHEREOF, ________________________________, as Trustee, has
caused this acknowledgment to be executed by its duly authorized officer as of
this ___ day of ______, 199_.
[TRUSTEE], as Trustee
By_____________________
Its____________________
By_____________________
Its____________________
G-1
Exhibit H
THE CIT GROUP/CONSUMER FINANCE, INC.
CERTIFICATE OF SERVICING OFFICERS
The undersigned certify that they are the [title] and [title], respectively
of The CIT Group/Consumer Finance, Inc., a corporation organized under the laws
of Delaware ("CIT Consumer Finance"), and that as such they are duly authorized
to execute and deliver this certificate on behalf of CIT Consumer Finance
pursuant to Section 6.02 of the Pooling and Servicing Agreement, dated as of
______ __, 199_ (the "Agreement"), among CIT Consumer Finance, The CIT Group
Securitization Corporation III and ____________________________, as Trustee (all
capitalized terms used herein without definition having the respective meanings
specified in the Agreement), and further certify that:
The Monthly Report for the period from _________ to _______ attached to
this certificate is complete and accurate in accordance with the requirements of
Sections 6.01 and 6.02 of the Agreement; and
As of the date hereof, no Event of Termination or event that with notice or
lapse of time or both would become an Event of Termination has occurred.
IN WITNESS WHEREOF, we have affixed hereunto our signatures this ____ day
of _____, 199_.
THE CIT GROUP/CONSUMER FINANCE, INC.
By_________________________________
[Name]
[Title]
By_________________________________
[Name]
[Title]
H-1
Exhibit I-1
THE CIT GROUP/CONSUMER FINANCE, INC.
CERTIFICATE REGARDING REPURCHASED CONTRACTS
The undersigned certify that they are [title] and [title], respectively of
The CIT Group/Consumer Finance, Inc., a corporation organized under the laws of
Delaware ("CIT Consumer Finance"), and that as such they are duly authorized to
execute and deliver this certificate on behalf of CIT Consumer Finance pursuant
to Section 3.05(a) of the Pooling and Servicing Agreement, dated as of ______
__, 199_ (the "Agreement"), among CIT Consumer Finance, The CIT Group
Securitization Corporation III and ____________________________, as Trustee (all
capitalized terms used herein without definition having the respective meanings
specified in the Agreement), and further certify that :
1. The Mortgage Loans on the attached schedule are to be repurchased on the
date hereof pursuant to Section 3.05 of the Agreement.
2. Upon deposit of the Repurchase Price for such Mortgage Loans, such
Mortgage Loans may be assigned by the Trustee to CIT Consumer Finance.
IN WITNESS WHEREOF, we have affixed hereunto our signatures this ____ day
of ______, 199_.
THE CIT GROUP/CONSUMER FINANCE, INC.
By:_______________________________
[Name]
[Title]
By:_______________________________
[Name]
[Title]
I-1
Exhibit I-2
THE CIT GROUP/CONSUMER FINANCE, INC.
CERTIFICATE REGARDING SUBSTITUTED CONTRACTS
The undersigned certify that they are [title] and [title], respectively of
The CIT Group/Consumer Finance, Inc., a corporation organized under the laws of
Delaware ("CIT Consumer Finance"), and that as such they are duly authorized to
execute and deliver this certificate on behalf of CIT Consumer Finance pursuant
to Section 3.05(b) of the Pooling and Servicing Agreement, dated as of ______
__, 199_ (the "Agreement"), among CIT Consumer Finance, The CIT Group
Securitization Corporation III and _______________________________, as Trustee
(all capitalized terms used herein without definition having the respective
meanings specified in the Agreement), and further certify that:
1. The Mortgage Loan and Mortgage Loan File for each such Eligible
Substitute Mortgage Loan [are being held by CIT Consumer Finance, as Master
Servicer] [have been delivered to ______, the successor Master Servicer].
2. The Mortgage Loans on the attached schedule are to be substituted on the
date hereof pursuant to Section 3.05(b) of the Agreement and each such Mortgage
Loan is an Eligible Substitute Mortgage Loan [description, as to each Mortgage
Loan, as to how it satisfies the definition of "Eligible Substitute Mortgage
Loan"].
3. The UCC-1 financing statements in respect of the Mortgage Loans to be
substituted, in the form required by Section 3.05(b)(iii) of the Agreement, has
been filed with the appropriate offices.
[4. There has been deposited in the Certificate Account the amounts listed
on the schedule attached hereto as the amount by which the Scheduled Certificate
Balance of each Replaced Mortgage Loan exceeds the Scheduled Certificate Balance
of each Mortgage Loan being substituted therefor.]
I-2
IN WITNESS WHEREOF, we have affixed hereunto our signatures this ____ day
of ______, 199_.
THE CIT GROUP/CONSUMER FINANCE, INC.
By:_______________________________
[Name]
[Title] By:_______________________________
[Name]
[Title]
I-3
Exhibit J
FORM OF INVESTMENT LETTER
[Date]
The CIT Group Securitization Corporation III
000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
The CIT Group/Consumer Finance, Inc.
000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
[ ]
Re: Purchase of $_______ Principal Amount of The CIT Group Securitization
Corporation III Home Equity Loan Senior/Subordinate Asset Backed
Certificates Series 199_ - Class [B] [R] Certificates
Dear Sirs:
In connection with our purchase of the above referenced Certificates (the
"Certificates"), the undersigned (the "Purchaser") hereby certifies and agrees
on behalf of the Purchaser:
1. The Purchaser is an accredited investor and is acquiring the
Certificates for its own account or accounts for which it exercises sole
investment discretion and not with a view to, or for sale in connection
with, any distribution thereof, subject nevertheless to any requirement of
law that the disposition of the Purchaser's property shall at all times be
and remain within its control.
2. The Purchaser has received (a) a copy of the __________ dated
______ __, ____, relating to the Certificates, (b) a copy of the Pooling
and Servicing Agreement dated as of ______ __, 199_ (the "Pooling and
Servicing Agreement"), among The CIT Group Securitization Corporation III,
the CIT Group/Consumer Finance, Inc. and __________________, as Trustee,
and (c) other information concerning the Certificates and the Mortgage
Loans (as defined in the Pooling and Servicing Agreement) requested by the
Purchaser and relevant to the Purchaser's decision to purchase the
Certificates.
J-1
3. The Purchaser has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Certificates and the Purchaser is able to bear the
economic risks of such an investment.
4. The Purchaser will comply with all applicable federal and state
securities laws in connection with any subsequent resale of the
Certificates by the Purchaser.
5. The Purchaser understands that the Certificates have not been and
will not be registered under the Securities Act of 1933, as amended (the
"Securities Act"), that neither the Company, the Seller nor the Trust (as
such terms are defined in the Pooling and Servicing Agreement) is required
to so register the Certificates, and that the Certificates may be resold
only if registered pursuant to the provisions of the Securities Act or if
an exemption from registration thereunder is available.
6. If the Purchaser sells any of the Certificates, the Purchaser, at
its option, will either (a) obtain from any accredited investor that
purchases any Certificate from it a certificate containing the same
representations, warranties and agreements contained in the foregoing
paragraphs 1, 2(b), 3 through 5 and this paragraph 6, (b) deliver an
opinion of counsel to such institutional investor, addressed to the Seller,
the Master Servicer and the Trustee (as such terms are defined in the
Pooling and Servicing Agreement), to the effect that such sale is in
compliance with all applicable federal and state securities laws, or (c)
comply with the requirements of paragraph Second of Section 9.02(b) of the
Pooling and Servicing Agreement.
Very truly yours,
_______________________________________
(Name of Purchaser)
By:____________________________________
(Authorized Officer)
J-2
Exhibit K-1
[FORM OF TRANSFEROR'S CERTIFICATE]
THE CIT GROUP SECURITIZATION CORPORATION III
HOME EQUITY LOAN
SENIOR/SUBORDINATE ASSET BACKED CERTIFICATES
SERIES 199_
____________________________________________
The undersigned, a duly authorized representative of _______________ (the
"Transferor"), pursuant to the Pooling and Servicing Agreement dated as of
______ __, 199_ (the "Pooling and Servicing Agreement"), among The CIT Group
Securitization Corporation III (the "Company"), The CIT Group/Consumer Finance,
Inc. and ______________________________, as trustee (the "Trustee"), does hereby
certify to the Company and the Trustee that:
1. The undersigned is duly authorized to execute and deliver this
Certificate to the Trustee and to the Company.
2. This Certificate is delivered pursuant to Section 9.02(b) of the
Pooling and Servicing Agreement.
3. In connection with the transfer (the "Transfer") of Investor
Certificate No. [B-_] [R-_] from the Transferor to _________ (the
"Transferee"):
(a) the Transferor reasonably believes the Transferee to be a
Qualified Institutional Buyer as defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended; and
(b) registration of the Transfer is to be made in reliance upon the
exemption from transfer contained in Rule 144A.
IN WITNESS WHEREOF, the undersigned has duly executed this certificate this
____ day of ______, ____.
______________________________
Name:
Title:
K-1
Exhibit K-2
[FORM OF TRANSFEREE'S CERTIFICATE]
THE CIT GROUP SECURITIZATION CORPORATION III
HOME EQUITY LOAN
SENIOR/SUBORDINATE ASSET BACKED CERTIFICATES
SERIES 199_
____________________________________________
The undersigned, a duly authorized representative of _______________ (the
"Transferee"), pursuant to the Pooling and Servicing Agreement dated as of
______ __, 199_ (the "Pooling and Servicing Agreement"), among The CIT Group
Securitization Corporation III (the "Company"), The CIT Group/Consumer Finance,
Inc. and ____________________, as trustee (the "Trustee"), does hereby certify
to the Company and the Trustee that:
1. The undersigned is duly authorized to execute and deliver this
Certificate to the Trustee and to the Company.
2. This Certificate is delivered pursuant to Section 9.02(b) of the
Pooling and Servicing Agreement.
3. In connection with the transfer (the "Transfer") of Investor
Certificate No. [B-_] [R-_] from _______________ (the "Transferor") to the
Transferee:
(a) the Transferee is a Qualified Institutional Buyer as defined in
Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended
(the "Securities Act");
(b) the Transferee acknowledges that the Transferor, the Company and
the Trustee are relying upon the Transferee's representations set
forth herein in order to claim the exemption from registration
contained in Rule 144A;
(c) [the Transferee requested information from the Master Servicer
concerning the assets of the Trust, and received from the Master
Servicer a copy of the monthly statements relating to the Trust for
the period through _____, ____ [,] [and] the disclosure document
annexed hereto as Annex 1 [and _____________.]
OR
K-2
[(c) the Transferee did not request information from the Master
Servicer and the Trust Assets.]
The Transferee acknowledges that the Certificate referred to above has not
been registered under the Securities Act or under any state securities or "Blue
Sky" laws, in reliance upon exemptions provided by such Acts.
IN WITNESS WHEREOF, the undersigned has duly executed this certificate this
____ day of ______, ____.
_____________________________
Name:
Title:
K-3
Exhibit L
THE CIT GROUP SECURITIZATION CORPORATION III
HOME EQUITY LOAN
SENIOR/SUBORDINATE ASSET BACKED
CERTIFICATES, SERIES 199_
MONTHLY REPORT
DISTRIBUTION DATE:____
CLASS A CERTIFICATES
Distribution Amounts
1. Aggregate Class A Distribution $_____________
2. Aggregate Class B Distribution $_____________
3. Aggregate Class R Distribution $_____________
Interest
1. Aggregate Class A Interest $_____________
2. Amount applied to Unpaid $_____________
Class A Interest Shortfall
3. Remaining Unpaid Class A $_____________
Interest Shortfall
Principal
4. Formula Principal Distribution Amount $_____________
(a) Scheduled Principal $_____________
(b) Principal Prepayments $_____________
(c) Liquidated Mortgage Loans $_____________
(d) Repurchases $_____________
5. Pool Scheduled Certificate Balance $_____________
L-1
[6. Class A Scheduled Principal Deficiency
Amount (if any) following prior
Distribution Date $_____________]
7. Class A Principal Distribution Amount $_____________
8. Class A Certificate Balance $_____________
9. Class B Certificate Balance $_____________
[10. Class A Scheduled Principal Deficiency
Amount (if any) following current
Distribution Date $_____________]
11. Class A Pool Factor (Pool Scheduled
Certificate Balance divided by Cut-off
Date Certificate Balance) $_____________
Delinquency Information
Aggregate Principal
Number Balance
------ -------
12. Delinquent Mortgage Loans
(a) 30-59 days ______ $__________________
(b) 60-89 days ______ $__________________
(c) 90 days or more ______ $__________________
13. Foreclosed Mortgage Loans ______ $__________________
14. Foreclosed Mortgage Loans
Remaining in Inventory ______ $__________________
CLASS B/CLASS R CERTIFICATES
Amount Available $_____________
[Available Credit Enhancement Amount] $_____________
Class B Certificates
Interest
1. Aggregate Class B Interest $_____________
2. Amount applied to Unpaid
Class B Interest Shortfall $_____________
L-2
3. Remaining Unpaid Class B
Interest Shortfall $_____________
Principal
4. Aggregate Principal (until
Class A Certificate Balance reaches zero,
Aggregate Principal equals Class B
Principal Loss Liquidation Amount) $_____________
5. Principal Prepayments $_____________
6. Class B Principal Loss Liquidation
Amount $_____________
7. Amount, if any, by which the [Class B
Distribution Amount] for such Remittance
Date exceeds the Amount Available in the
Certificate Account available for
distributions on Class B Certificates
on such Distribution Date. $_____________
[8. Class B Enhancement Payment $_____________]
9. Class B Certificate Balance $_____________
Class R Certificates
10. Class R Residual Payment $_________
a. The amount (if any) by which
the Amount Available exceeds
the [Class A Distribution
Amount] and the Class
B Distribution
Amount]. $_________
L-3
EXHIBIT M
FORM OF TRANSFER AFFIDAVIT
DATE OF )
: ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of __________, the proposed Transferee of
an Ownership Interest in the Class R Certificate of the Home Equity Loan
Senior/Subordinate Asset Backed Certificates Series ____, issued pursuant to the
Pooling and Servicing Agreement, dated as of ______ __, 199_ (the "Agreement"),
among The CIT Group Securitization Corporation III, The CIT Group/Consumer
Finance, Inc. and _____________________________, as trustee. Capitalized terms
used but not defined herein shall have the meanings ascribed to such terms in
the Agreement. The Transferee has authorized the undersigned to take this
affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date of
the Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Class R Certificate either (i) for its own account or (ii) as
nominee, trustee or agent for another person and has attached hereto an
Affidavit from such person in substantially the same form as this Affidavit. The
Transferee has no knowledge that any such Affidavit is false.
3. The Transferee has been advised and understands that (i) a tax shall be
imposed on Transfers of Ownership Interests in the Class R Certificate to
persons that are not permitted Transferees; (ii) such tax would be imposed on
the transferor, or, if such Transfer is through an agent (which includes a
broker, nominee or middleman) for a person that is not a permitted Transferee,
on such agent; and (iii) the person otherwise liable for the tax shall be
relieved of liability for the tax if the subsequent Transferee furnishes to such
person an affidavit that such subsequent Transferee is a Permitted transferee
and, at the time of Transfer, such person does not have actual knowledge that
the affidavit is false.
4. The Transferee has been advised and understands that a tax shall be
imposed on a "pass-through entity" holding Ownership Interest in the Class R
Certificate if at any time during the taxable year of the pass-through entity a
person that is not a Permitted Transferee is the record holder of an interest in
such entity. The Transferee understands that no tax will be imposed for any
period for which the record holder furnishes to the pass-through entity an
affidavit stating that the record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is false.
(For this purpose, a "pass-through entity" includes a regulated investment
company, a real estate investment trust or common trust fund, a partnership,
trust or estate, and certain cooperatives and, except as may be provided in
Treasury Regulations, persons holding interests in pass-through entities as a
nominee for another Person.)
M-1
5. The Transferee has reviewed the provisions of Section 9.02 of the
Agreement (attached hereto as Exhibit 1 and incorporated herein by reference)
and understands the legal consequences of the acquisition of an Ownership
Interest in the Class R Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfers and mandatory sales. The Transferee expressly agrees to be bound by
and abide by the provisions of Section 9.02 of the Agreement and the
restrictions noted on the face of the Class R Certificate. The Transferee
understands and agrees that any breach of any of the representations included
herein shall render the attempted Transfer null and void.
6. The Transferee agrees to require a Transfer Affidavit from any person to
whom the Transferee attempts to Transfer its Ownership Interest in the Class R
Certificate, and in connection with any Transfer by a person for whom the
Transferee is acting as nominee, trustee or agent. The Transferee agrees to not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any person that the Transferee knows is not a Permitted
Transferee.
7. The Transferee represents and warrants that (i) no purpose of its
purchase of an Ownership Interest in the Class R Certificates is or will be to
impede the assessment or collection of any tax, and (ii) it has no present
knowledge or expectation that it will become insolvent or subject to a
bankruptcy proceeding for so long as it holds the Class R Certificate.
8. The Transferee's taxpayer identification number is ___________.
M-2
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer this ___ day of __________.
[NAME OF TRANSFEREE]
By: ________________________
Name:
Title:
M-3
EXHIBIT N
LIST OF MORTGAGE LOANS
--------
1 Class B definitions apply only where the regular interests in the REMIC are
represented by a senior (Class A) and a subordinated (Class B) class.
N-1
