Exhibit 4.2
TRUST AGREEMENT
BETWEEN
THE CIT GROUP SECURITIZATION CORPORATION II,
SELLER
AND
___________________,
OWNER TRUSTEE
DATED AS OF ____________, ____
TABLE OF CONTENTS
TRUST AGREEMENT, dated as of ____________, ____, between THE CIT GROUP
SECURITIZATION CORPORATION II, a Delaware corporation, as Seller, and
____________________, a Delaware banking corporation, as Owner Trustee.
The Seller and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Certain capitalized terms used in this
Agreement shall have the respective meanings assigned to them in the Sale and
Servicing Agreement of even date herewith, among the Seller, the Servicer and
the Trust (the "Sale and Servicing Agreement"). All references herein to "the
Agreement" or "this Agreement" are to the Trust Agreement, and all references
herein to Articles, Sections and subsections are to Articles, Sections and
subsections of this Agreement unless otherwise specified.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be known as "CIT
Marine Trust ____-_" in which name the Owner Trustee may conduct the business of
the Trust, make and execute contracts and other instruments on behalf of the
Trust and xxx and be sued on behalf of the Trust.
SECTION 2.2 Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address as the
Owner Trustee may designate by written notice to the Certificate Owners and the
Seller.
SECTION 2.3 Purposes and Powers. The purpose of the Trust is to engage
in the following activities:
(a) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, and to sell, transfer or
exchange the Notes and the Certificates;
(b) with the proceeds of the sale of the Notes and the
Certificates to fund the Capitalized Interest Account and the
Pre-Funding Account and to pay the organizational, start-up and
transactional expenses of the Trust and to pay the balance of the
proceeds to the Seller pursuant to the Sale and Servicing Agreement;
(c) to acquire, manage and hold the Contracts;
(d) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate pursuant to the terms of the Indenture and to hold,
manage and distribute to the Certificate Owners pursuant to the terms
of this Agreement and the Sale and Servicing Agreement any portion of
the Trust Estate released from the lien of, and remitted to the Trust
pursuant to, the Indenture;
(e) to enter into and perform its obligations and exercise its
rights under the Basic Documents to which it is to be a party;
(f) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith;
(g) to hold and administer the Certificate Distribution
Account and Cash Collateral Account and apply the proceeds thereof as
provided in the Sale and Servicing Agreement;
(h) to acquire Subsequent Contracts from the Seller from time
to time with funds on deposit in the Pre-Funding Account; and
(i) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Certificateholders and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities and shall
not engage in any activity other than in connection with the foregoing or other
than as required or authorized by the terms of this Agreement or the Basic
Documents.
SECTION 2.4 Appointment of Owner Trustee. The Seller hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Owner Trust Estate. The
Seller hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $10. The Owner Trustee hereby
acknowledges receipt in trust from the Seller, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate
and shall be deposited in the Certificate Distribution Account.
SECTION 2.6 Declaration of Trust. The Owner Trustee hereby declares
that it shall hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificate Owners,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a business trust under
the Business Trust Statute and that this Agreement constitute the governing
instrument of such business trust. It is the intention of the parties hereto
that, solely for purposes of federal income
taxes, state and local income and franchise taxes and any other taxes imposed
upon, measured by, or based upon gross or net income, the Trust shall be treated
as a partnership. The parties agree that, unless otherwise required by
appropriate tax authorities, the Trust shall file or cause to be filed annual or
other necessary returns, reports and other forms consistent with the
characterization of the Trust as a partnership for such tax purposes. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth herein and in the Business Trust Statute with respect to
accomplishing the purposes of the Trust.
SECTION 2.7 Title to Trust Property. Legal title to all the Owner Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be, for the benefit of the Trust.
SECTION 2.8 Situs of Trust. The Trust shall be located and administered
in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or the State of
New York. The Trust shall not have any employees in any state other than
Delaware or New York; provided, however, that nothing herein shall restrict or
prohibit the Owner Trustee from having employees within or without the State of
Delaware. Payments shall be received by the Trust only in Delaware or New York,
and payments will be made by the Trust only from Delaware or New York. The only
office of the Trust shall be the Corporate Trust Office in Delaware.
SECTION 2.9 Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Owner Trustee, as of the Closing Date,
that:
(a) The Seller has been organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with power and authority to own its properties and conduct its business
as such properties are presently owned and such business is presently
conducted and had at all relevant times, and now has, power, authority
and legal right to acquire and own the Contracts.
(b) The Seller is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business requires such qualifications.
(c) The Seller has the power and authority to execute and
deliver this Agreement and to carry out its terms, the Seller has full
power and authority to sell and assign the property to be sold and
assigned to and deposited with, as part of, the Trust and the Seller
has duly authorized such sale and assignment to the Trust by all
necessary corporate action; and the execution, delivery and performance
of this Agreement have been duly authorized by the Seller by all
necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not
conflict with, result in any breach of any of the terms and provisions
of or constitute (with or without notice or lapse of time) a default
under its certificate of incorporation or by-laws of the Seller, or any
indenture, agreement or other instrument to which the Seller is a party
or by which it is bound, or result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than pursuant to or as
contemplated by the Basic Documents), or violate any law or, to the
best of its knowledge, any order, rule or regulation applicable to the
Seller of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Seller or any of its properties.
SECTION 2.10 Tax Treatment. Net income of the Trust for any month as
determined for Federal income tax purposes (and each item of income, gain, loss,
credit and deduction entering into the computation thereof) shall be allocated
to the extent of available net income, among the Certificateholders as of the
first Record Date following the end of such month, in proportion to their
ownership of principal amount of Certificates on such date, an amount of net
income up to the sum of (i) the amount of monthly interest at the Pass-Through
Rate to which the Certificateholders are entitled to for the related Due Period,
(ii) interest on the excess, if any, of the amount of interest and principal due
to the Certificateholders for the preceding Distribution Date over the amount in
respect of interest at the Pass-Through Rate that is actually deposited in the
Certificate Distribution Account on such preceding Distribution Date, to the
extent permitted by law, at the Pass-Through Rate from such preceding
Distribution Date through the current Distribution Date, and (iii) the portion
of the market discount, if any, on the Contracts accrued during such month that
is allocable to the excess of the initial aggregate principal amount, if any, of
the Certificates over their initial aggregate issue price.
Net losses of the Trust, if any, for any month as determined for
Federal income tax purposes (and each item of income, gain, loss, credit and
deduction entering into the computation thereof) shall be allocated among the
Certificateholders as of the first Record Date following the end of such month
in proportion to their ownership of principal amount of Certificates on such
Record Date until the principal balance of the Certificates is reduced to zero.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 Initial Certificate Ownership. Upon the formation of the
Trust by the contribution by the Seller pursuant to Section 2.5 and until the
issuance of the Certificates, the Seller shall be the sole beneficiary of the
Trust.
SECTION 3.2 Form of the Certificates.
(a) The Certificates shall be substantially in the form set
forth in Exhibit A and shall be issued in minimum denominations of
$______ and in integral multiples of $1,000 in excess thereof;
provided, however, that one Certificate may be issued in a denomination
other than an integral multiple of $1,000. The Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of a
Responsible Officer of the Owner Trustee. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be valid and binding obligations of the
Trust, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of
such Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates.
(b) The Definitive Certificates (as hereinafter defined) shall
be typewritten, printed, lithographed or engraved or produced by any
combination of these methods (with or without steel engraved borders)
all as determined by the officers executing such Certificates, as
evidenced by their execution of such Certificates.
(c) The terms of the Certificates set forth in Exhibit A shall
form part of this Agreement.
SECTION 3.3 Execution, Authentication and Delivery. Concurrently with
the sale of the Initial Contracts to the Trust pursuant to the Sale and
Servicing Agreement, the Owner Trustee shall cause the Certificates in an
aggregate principal amount equal to the initial Certificate Balance to be
executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Seller, signed by its chairman of the board, its president
or any vice president, without further corporate action by the Seller, in
authorized denominations. No Certificate shall entitle its holder to any benefit
under this Agreement, or shall be valid for any purpose, unless there shall
appear on such Certificate a certificate of authentication substantially in the
form set forth in Exhibit A, executed by the Owner Trustee, or by the Owner
Trustee's authenticating agent, by manual signature. Such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. ____________________ is hereby appointed as the Owner
Trustee's authenticating agent.
SECTION 3.4 Registration; Registration of Transfer and Exchange of
Certificates.
(a) The Certificate Registrar shall keep or cause to be kept,
at the office or agency maintained pursuant to Section 3.8, a
Certificate Register in which, subject to such reasonable regulations
as it may prescribe, the Owner Trustee shall provide for the
registration of Certificates and of transfers and exchanges of
Certificates as provided herein; provided, however, that no Certificate
may be subdivided upon transfer or exchange such that the denomination
of any resulting Certificate is less than $______. ____________________
shall be the initial Certificate Registrar. Upon any resignation of a
Certificate Registrar, the Owner Trustee shall promptly appoint a
successor or, if it elects not to make such an appointment, assume the
duties of Certificate Registrar.
(b) Upon surrender for registration or transfer of any
Certificate at the office or agency maintained pursuant to Section 3.8,
the Owner Trustee shall execute on behalf of the Trust, authenticate
and deliver (or shall cause its authenticating agent to authenticate
and deliver), in the name of the designated transferee or transferees,
one or more new Certificates in authorized denominations of a like
aggregate amount dated the date of authentication by the Owner Trustee
or any authenticating agent.
(c) At the option of a Holder of Certificates, Certificates
may be exchanged for other Certificates of authorized denominations of
a like aggregate principal amount upon surrender of the Certificates to
be exchanged at the Corporate Trust Office maintained pursuant to
Section 3.8. Whenever any Certificates are so surrendered for exchange,
the Owner Trustee shall execute on behalf of the Trust, authenticate
and deliver (or shall cause its authenticating agent to authenticate
and deliver) one or more Certificates dated the date of authentication
by the Owner Trustee or any authenticating agent. Such Certificates
shall be delivered to the Holder making the exchange.
(d) Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and
the Certificate Registrar duly executed by the Holder or his attorney
duly authorized in writing with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Certificate Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program
("STAMP") or such other "signature guarantee program" as may be
determined by the Certificate Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Exchange Act. Each
Certificate surrendered for registration of transfer or exchange shall
be canceled and subsequently destroyed by the Owner Trustee or
Certificate Registrar in accordance with its customary practice.
(e) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with
any transfer or exchange of Certificates.
SECTION 3.5 Mutilated; Destroyed; Lost or Stolen Certificates.
(a) If (i) 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 (ii) there is delivered to the Certificate Registrar,
the Owner Trustee and the Trust such security or indemnity as may be
required by them to hold each of them harmless, then, in the absence of
notice to the Certificate Registrar or the Owner Trustee that such
Certificate has been acquired by a bona fide purchaser, the Owner
Trustee shall execute on behalf of the Trust and the Owner Trustee
shall authenticate and deliver (or shall cause its authenticating agent
to authenticate and deliver), in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a replacement
Certificate of a like aggregate principal amount; provided, however,
that if any such destroyed, lost or stolen Certificate, but not a
mutilated Certificate, shall have become or within seven days shall be
due and payable, then instead of issuing a replacement Certificate the
Owner Trustee may pay such destroyed, lost or stolen Certificate when
so due or payable.
(b) If, after the delivery of a replacement Certificate or
payment in respect of a destroyed, lost or stolen Certificate pursuant
to subsection 3.5(a), a bona fide purchaser of the original Certificate
in lieu of which such replacement Certificate was issued presents for
payment such original Certificate, the Owner Trustee shall be entitled
to recover such replacement Certificate (or such payment) from the
Person to whom it was delivered or any Person taking such replacement
Certificate from such Person to whom such replacement Certificate was
delivered or any assignee of such Person, except a bona fide purchaser,
and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense
incurred by the Owner Trustee in connection therewith.
(c) In connection with the issuance of any replacement
Certificate under this Section 3.5, the Owner Trustee may require the
payment by the Holder of such Certificate of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and
expenses of the Owner Trustee and the Certificate Registrar) connected
therewith.
(d) Any duplicate Certificate issued pursuant to this Section
3.5 in replacement of any mutilated, destroyed, lost or stolen
Certificate shall constitute an original additional contractual
obligation of the Trust, whether or not the mutilated, destroyed, lost
or stolen Certificate shall be found at any time or be enforced by
anyone, and shall be entitled to all the benefits of this Agreement
equally and proportionately with any and all other Certificates duly
issued hereunder.
(e) The provisions of this Section 3.5 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Certificates.
SECTION 3.6 Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee or
the Certificate Registrar may treat the Person in whose name any Certificate
shall be registered in the Certificate Register as the Certificateholder of such
Certificate for the purpose of receiving distributions pursuant to Article V and
for all other purposes whatsoever, and neither the Owner Trustee nor the
Certificate Registrar shall be affected by any notice to the contrary.
SECTION 3.7 Access to List of Certificateholders' Names and Addresses.
The Owner Trustee shall furnish or cause to be furnished to the Servicer and the
Seller, within 15 days after receipt by the Owner Trustee of a request therefor
from the Servicer or the Seller in writing, a list, in such form as the Servicer
or the Seller may reasonably require, of the names and addresses
of the Certificateholders as of the most recent Record Date. If three or more
Holders of Certificates or one or more Holder of Certificates evidencing not
less than 25% of the Certificate Balance apply in writing to the Owner 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 such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Owner Trustee
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Certificateholders. Each Holder, by receiving and holding a Certificate, shall
be deemed to have agreed not to hold the Seller or the Owner Trustee accountable
by reason of the disclosure of its name and address, regardless of the source
from which such information was derived.
SECTION 3.8 Maintenance of Corporate Trust Office. The Owner Trustee
shall maintain in the City of _______________, an office or offices or agency or
agencies where Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Owner Trustee in respect
of the Certificates and the Basic Documents may be served. The Owner Trustee
initially designates the offices of ____________________, ____________________,
as its principal office for such purposes. The Owner Trustee shall give prompt
written notice to the Seller and to the Certificateholders of any change in the
location of the Certificate Register or any such office or agency.
SECTION 3.9 Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to Section 5.2 and make withdrawals from the Cash Collateral Account of
amounts to be deposited in the Certificate Distribution Account, in each case
pursuant to the Sale and Servicing Agreement and amounts to be paid to the Cash
Collateral Depositor pursuant to the Cash Collateral Agreement, and the Paying
Agent shall report the amounts of such distributions and withdrawals to the
Owner Trustee and the Servicer. Any Paying Agent shall have the revocable power
to withdraw funds from the Certificate Distribution Account and/or the Cash
Collateral Account for the purpose of making the distributions referred to
above. The Owner Trustee may revoke such power and remove the Paying Agent if
the Owner Trustee determines in its sole discretion that the Paying Agent shall
have failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be [____________________], and any
co-paying agent chosen by the Owner Trustee, and acceptable to the Servicer. The
Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Owner Trustee. If [____________________] shall no longer be the
Paying Agent, the Owner Trustee shall appoint a successor to act as Paying Agent
(which shall be an Eligible Institution). The Owner Trustee shall cause such
successor Paying Agent or any additional Paying Agent appointed by the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Owner
Trustee that as Paying Agent, such successor Paying Agent or additional Paying
Agent shall hold all sums, if any, held by it for payment to the
Certificateholders in trust for the benefit of the Certificateholders entitled
thereto until such sums shall be paid to such Certificateholders. The Paying
Agent shall return all unclaimed funds to the Owner Trustee and upon removal of
a Paying Agent such Paying Agent shall also return all funds in its possession
to the Owner
Trustee. The provisions of Sections 6.3, 6.6, 6.7 and 6.9 shall apply to the
Owner Trustee also in its role as Paying Agent (if the Owner Trustee shall also
act as Paying Agent), for so long as the Owner Trustee shall act as Paying Agent
and, to the extent applicable, to any other paying agent appointed hereunder.
Any reference in this Agreement to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
SECTION 3.10 Book-Entry Certificates. The Certificates, upon original
issuance, shall be issued in the form of a typewritten Certificate or
Certificates representing Book-Entry Certificates, to be delivered to The
Depository Trust Company, the initial Depository by or on behalf of the Trust.
Such Certificate or Certificates shall initially be registered on the
Certificate Register in the name of Cede & Co., the nominee of the initial
Depository and no Certificate Owner shall receive a definitive Certificate
representing such Certificate Owner's interest in such Certificate, except as
provided in Section 3.13. Unless and until definitive fully registered
Certificates (the "Definitive Certificates") shall have been issued to
Certificate Owners pursuant to Section 3.13:
(a) the provisions of this Section 3.11 shall be in full force
and effect;
(b) the Certificate Registrar and the Owner Trustee shall be
entitled to deal with the Depository for all purposes of this Agreement
(including the payment of principal of and interest on the Certificates
and the giving of instructions or directions hereunder) as the sole
Holder of the Certificate, and shall have no obligation to the
Certificate Owners;
(c) to the extent that the provisions of this Section 3.11
conflict with any other provisions of this Agreement, the provisions of
this Section 3.11 shall control;
(d) the rights of the Certificate Owners shall be exercised
only through the Depository and shall be limited to those established
by law and agreements between such Certificate Owners and the
Depository and/or the Depository Participants. Pursuant to the
Certificate Depository Agreement unless and until Definitive
Certificates are issued pursuant to Section 3.13, the initial
Depository will make book-entry transfers among the Depository
Participants and receive and transmit payments of principal of and
interest on the Certificates to such Depository Participants;
(e) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Certificates
evidencing a specified percentage of the Certificate Balance, the
Depository shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from
Certificate Owners and/or Depository Participants owning or
representing, respectively, such required percentage of Certificates
and has delivered such instructions to the Owner Trustee.
SECTION 3.12 Notices to Depository. Whenever a notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates
shall have been issued to Certificate Owners pursuant to Section 3.13, the Owner
Trustee shall give all such notices and communications specified herein to be
given to Certificateholders to the Depository and shall have no further
obligation to the Certificate Owners.
SECTION 3.13 Definitive Certificates. If (i) the Servicer advises the
Owner Trustee in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Certificates, and
the Servicer is unable to locate a qualified successor, (ii) the Servicer at its
option advises the Owner Trustee in writing that it elects to terminate the
book-entry system through the Depository, or (iii) after the occurrence of an
Event of Default or an Event of Termination, Certificate Owners representing
beneficial interests aggregating at least a majority of the Certificate Balance
advise the Depository in writing that the continuation of a book-entry system
through the Depository is no longer in the best interest of the Certificate
Owners, then the Depository shall notify all Certificate Owners and the Owner
Trustee of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Owner Trustee of the typewritten Certificate or Certificates
representing the Book-Entry Certificates by the Depository, accompanied by
registration instructions, the Owner Trustee shall execute and authenticate the
Definitive Certificates in accordance with the instructions of the Depository.
Neither the Certificate Registrar nor the Owner 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, the Owner Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders.
SECTION 3.14 Seller as Certificateholder. The Seller in its individual
or any other capacity may become the owner or pledgee of Certificates and may
otherwise deal with the Owner Trustee or its Affiliates as if it were not the
Seller.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not take action with respect to the following
matters, unless (i) the Owner Trustee shall have notified the Certificateholders
in writing of the proposed action at least 30 days before the taking of such
action, and (ii) the Certificateholders shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by the
Trust (except claims or lawsuit brought in connection with the
collection of payments due on the Contracts) and the compromise of any
material action, claim or lawsuit brought by or against the Trust
(except with respect to the aforementioned claims or lawsuits for
collection of payments due on the Contracts);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Business Trust Statute), a conformed copy of which is
attached hereto as Exhibit B;
(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required
and such amendment materially adversely affects the interest of the
Certificateholders;
(e) the amendment, change or modification of the Sale and
Servicing Agreement, except to cure any ambiguity or defect or to amend
or supplement any provision in a manner that would not materially
adversely affect the interests of the Certificateholders or in
circumstances in which the Sale and Servicing Agreement expressly
provides that the consent of the Certificateholders is not required; or
(f) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this
Agreement, as applicable.
SECTION 4.2 Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the written
direction of the Certificateholders, to (a) remove the Servicer under the Sale
and Servicing Agreement pursuant to Section 9.01 thereof, (b) appoint a
successor Servicer pursuant to Section 9.02 of the Sale and Servicing Agreement,
or (c) except as expressly provided in the Basic Documents, sell the Contracts
or any interest therein after the termination of the Indenture.
SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy.
The Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Holders of Certificates and the delivery to the Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that the Trust is insolvent.
SECTION 4.4 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the Basic
Documents or would be contrary to Section 2.3, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
SECTION 4.5 Majority Control. Except as expressly provided herein, any
action that may be taken or consent that may be given or withheld by the
Certificateholders under this Agreement may be taken, given or withheld by the
Holders of Certificates evidencing not less
than a majority of the Certificate Balance. Except as expressly provided herein,
any written notice of the Certificateholders delivered pursuant to this
Agreement shall be effective if signed by Holders of Certificates evidencing not
less than a majority of the Certificate Balance at the time of the delivery of
such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Accounts.
(a) On or prior to the Closing Date, the Trust shall cause the
Servicer to establish and maintain, in the name of the Indenture
Trustee or the Owner Trustee, as appropriate, for the benefit of the
Noteholders and Certificateholders (and, in the case of the Cash
Collateral Account, for the benefit of the Certificateholders and the
Cash Collateral Depositor) the accounts as provided in Section 5.01 of
the Sale and Servicing Agreement.
(b) The Owner Trustee shall possess all right, title and
interest in and to all funds on deposit from time to time in the
Certificate Distribution Account and the Cash Collateral Account and in
all proceeds thereof. Except as otherwise provided herein or in the
Sale and Servicing Agreement, the Certificate Distribution Account and
the Cash Collateral Account shall be under the sole dominion and
control of the Owner Trustee for the benefit of the Certificateholders
and, in the case of the Cash Collateral Account, for the benefit of the
Certificateholders and the Cash Collateral Depositor, as their
respective interests may appear. If, at any time, the Certificate
Distribution Account or the Cash Collateral Account ceases to be held
at an Eligible Institution, the Owner Trustee (or the Servicer on
behalf of the Owner Trustee, if the Certificate Distribution Account or
the Cash Collateral Account is not then held by the Owner Trustee or an
Affiliate thereof) shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which each Rating Agency
may consent) establish a new Certificate Distribution Account or Cash
Collateral Account at an Eligible Institution and shall transfer any
cash and/or any investments to such new Certificate Distribution
Account or Cash Collateral Account, as the case may be.
SECTION 5.2 Application of Trust Funds.
(a) On each Distribution Date, the Owner Trustee shall (i)
transfer or cause the transfer of amounts on deposit in the Cash
Collateral Account to the Certificate Distribution Account pursuant to
Section 5.06 of the Sale and Servicing Agreement, (ii) transfer and
distribute, or cause to be transferred and distributed, amounts on
deposit in the Cash Collateral Account to the Cash Collateral
Depositor, pursuant to Section 5.06 of the Sale and Servicing Agreement
and the applicable provisions of the Cash Collateral Agreement,
respectively, on or prior to such Distribution Date, and (iii)
distribute to the
Certificateholders, on a pro rata basis, amounts deposited in the
Certificate Distribution Account pursuant to the Sale and Servicing
Agreement on or prior to such Distribution Date first in respect of
interest and then in respect of principal.
(b) On each Distribution Date, the Owner Trustee shall send to
each Certificateholder the statement provided to the Owner Trustee by
the Servicer pursuant to Section 5.08 of the Sale and Servicing
Agreement on such Distribution Date setting forth, among other things,
the amount of the distribution allocable to principal and to interest,
the Certificate Balance after giving effect to such distribution, the
amount of funds on deposit in the Pre-Funding Account during the
Funding Period, the number and aggregate principal balance of
Subsequent Contracts purchased by the Trust on the related Distribution
Date during the Funding Period and the Servicer Payment with respect to
such Distribution Date or Monthly Period, as applicable.
(c) If any withholding tax is imposed on the Trust's payment
(or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section 5.2. The Owner Trustee is hereby
authorized and directed to retain from amounts otherwise distributable
to the Certificateholders sufficient funds for the payment of any tax
that is legally owed by the Trust (but such authorization shall not
prevent the Owner Trustee from contesting any such tax in appropriate
proceedings and withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings). The amount of any withholding
tax imposed with respect to a Certificateholder shall be treated as
cash distributed to such Certificateholder at the time it is withheld
by the Trust and remitted to the appropriate taxing authority. If there
is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder),
the Owner Trustee may in its sole discretion withhold such amounts in
accordance with this subsection 5.2(c). If a Certificateholder wishes
to apply for a refund of any such withholding tax, the Owner Trustee
shall reasonably cooperate with such Certificateholder in making such
claim so long as such Certificateholder agrees to reimburse the Owner
Trustee for any out-of-pocket expenses incurred.
(d) If the Indenture Trustee holds escheated funds for payment
to the Trust pursuant to Section 3.3(e) of the Indenture, the Owner
Trustee shall, upon notice from the Indenture Trustee that such funds
exist, submit on behalf of the Trust an Issuer Order to the Indenture
Trustee pursuant to Section 3.3(e) of the Indenture instructing the
Indenture Trustee to pay such funds to or at the order of the Seller.
SECTION 5.3 Method of Payment. Subject to subsection 7.1(c),
distributions required to be made to Certificateholders on any Distribution Date
shall be made to each Certificateholder of record on the immediately preceding
Record Date either by wire transfer, in immediately available funds, to the
account of such Holder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions at least five Business Days prior to
such Record Date and such Holder's Certificates in the aggregate evidence a
denomination of not less than $1,000,000 or, if
not, by check mailed to such Certificateholder at the address of such holder
appearing in the Certificate Register; provided, however, that, unless
Definitive Certificates have been issued pursuant to Section 3.13, with respect
to Certificates registered on the Record Date in the name of the nominee of the
Depository (initially, such nominee to be Cede & Co.), distributions will be
made by wire transfer in immediately available funds to the account designated
by such nominee. Notwithstanding the foregoing, the final distribution in
respect of the Certificates (whether on the Certificate Final Distribution Date
or otherwise) will be payable only upon presentation and surrender of such
Certificate at the office or agency maintained for that purpose by the Owner
Trustee pursuant to Section 3.8.
SECTION 5.4 Accounting and Reports to the Certificateholders, The
Internal Revenue Service and Others. The Owner Trustee shall (a) maintain (or
cause to be maintained) the books of the Trust on a calendar year basis on the
accrual method of accounting, (b) deliver to each Certificateholder, as may be
required by the Code and applicable Treasury Regulations or otherwise, such
information as may be required to enable each Certificateholder to prepare its
federal and state income tax returns, (c) file such tax returns relating to the
Trust and make such elections as may from time to time be required or
appropriate under any applicable state or federal statute or rule or regulation
thereunder so as to maintain the Trust's characterization as a partnership for
federal income tax purposes, (d) cause such tax returns to be signed in the
manner required by law and (e) collect or cause to be collected any withholding
tax as described in and in accordance with subsection 5.2(c) with respect to
income or distributions to Certificateholders.
SECTION 5.5 Signature on Returns; Tax Matters Partner. The Owner
Trustee shall sign on behalf of the Trust any and all tax returns of the Trust,
unless applicable law requires a Certificateholder to sign such documents, in
which case such documents shall be signed by ____________________. To the extent
one may be required, ____________________ shall be the "tax matters partner" of
the Trust pursuant to the Code.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Duties of Owner Trustee.
(a) The Owner Trustee undertakes to perform such duties, and
only such duties, as are specifically set forth in this Agreement and
the other Basic Documents, including the administration of the Trust in
the interest of the Certificateholders, subject to the Basic Documents
and in accordance with the provisions of this Agreement and the Basic
Documents. No implied covenants or obligations shall be read into this
Agreement.
(b) Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and
under the Basic Documents to the extent the Servicer has agreed in the
Sale and Servicing Agreement to perform any
act or to discharge any duty of the Owner Trustee hereunder or under
any Basic Document, and the Owner Trustee shall not be liable for the
default or failure of the Servicer to carry out its obligations under
the Sale and Servicing Agreement.
(c) In the absence of bad faith on its part, the Owner Trustee
may conclusively rely upon certificates or opinions furnished to the
Owner Trustee and conforming to the requirements of this Agreement in
determining the truth of the statements and the correctness of the
opinions contained therein; provided, however, that the Owner Trustee
shall have examined such certificates or opinions so as to determine
compliance of the same with the requirements of this Agreement.
(d) The Owner Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(i) this subsection 6.1(d) shall not limit the effect
of subsection 6.1(a) or (b);
(ii) the Owner Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer
unless it is proved that the Owner Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Owner Trustee shall not be liable with
respect to any action it takes or omits to take in good faith
in accordance with a direction received by it pursuant to
Section 4.1, 4.2 or 6.4.
(e) Subject to Sections 5.1 and 5.2, monies received by the
Owner Trustee hereunder need not be segregated in any manner except to
the extent required by law or the Sale and Servicing Agreement and may
be deposited under such general conditions as may be prescribed by law,
and the Owner Trustee shall not be liable for any interest thereon.
(f) The Owner Trustee shall not take any action that (i) is
inconsistent with the purposes of the Trust set forth in Section 2.3 or
(ii) would, to the actual knowledge of a Responsible Officer of the
Owner Trustee, result in the Trust's becoming taxable as a corporation
for federal income tax purposes. The Certificateholders shall not
direct the Owner Trustee to take action that would violate the
provisions of this Section 6.1 and any such direction shall be null and
void.
SECTION 6.2 Rights of Owner Trustee. The Owner Trustee is authorized
and directed to execute and deliver the Basic Documents and each certificate or
other document attached as an exhibit to or contemplated by the Basic Documents
to which the Trust is to be a party, in such form as the Seller shall approve as
evidenced conclusively by the Owner Trustee's execution thereof. In addition to
the foregoing, the Owner Trustee is authorized, but shall not be obligated, to
take all actions required of the Trust pursuant to the Basic Documents. The
Owner Trustee is
further authorized from time to time to take such action as the Servicer
recommends with respect to the Basic Documents.
SECTION 6.3 Acceptance of Trusts and Duties. Except as otherwise
provided in this Article VI, in accepting the trusts hereby created
[____________________] acts solely as Owner Trustee hereunder and not in its
individual capacity and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Agreement or any Basic
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof. The Owner Trustee accepts the trusts hereby created and agrees to
perform its duties hereunder with respect to such trusts but only upon the terms
of this Agreement. The Owner Trustee also agrees to disburse all monies actually
received by it constituting part of the Owner Trust Estate upon the terms of the
Basic Documents and this Agreement. The Owner Trustee shall not be liable or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own negligent action, its own negligent failure to act or its
own willful misconduct or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 6.6 and expressly made by the
Owner Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and
enforceability of any Contract, or the perfection and priority of any
security interest created by any Contract in any Financed Boat or the
maintenance of any such perfection and priority, or for or with respect
to the sufficiency of the Owner Trust Estate or its ability to generate
the payments to be distributed to Certificateholders under this
Agreement or the Noteholders under the Indenture, including, without
limitation: the existence, condition and ownership of any Financed
Boat; the existence and enforceability of any insurance thereon; the
existence and contents of any Contract on any computer or other record
thereof; the validity of the assignment of any Contract to the Trust or
of any intervening assignment; the completeness of any Contract; the
performance or enforcement of any Contract; the compliance by the
Seller or the Servicer with any warranty or representation made under
any Basic Document or in any related document or the accuracy of any
such warranty or representation or any action of the Servicer, the
Trustee or the Servicer or any subservicer taken in the name of the
Owner Trustee.
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of the Servicer or any Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur
any financial liability in the performance of any of its rights or
powers hereunder or under any Basic Document, if the Owner Trustee
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Notes or the
Certificate Balance of and interest on the Certificates;
(e) the Owner Trustee shall not be responsible for or in
respect of and makes no representation as to the validity or
sufficiency of any provision of this Agreement or for the due execution
hereof by the Seller or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for
or in respect of the validity or sufficiency of the Basic Documents,
the Notes, the Certificates (other than the certificate of
authentication on the Certificates) or of any Contracts or any related
documents, and the Owner Trustee shall in no event assume or incur any
liability, duty or obligation to any Noteholder, to any
Certificateholder or the Cash Collateral Depositor, other than as
expressly provided for herein and in the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Servicer, the Indenture Trustee, the Seller or the
Servicer under any of the Basic Documents or otherwise and the Owner
Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the Basic Documents
that are required to be performed by the Servicer under the Sale and
Servicing Agreement or the Indenture Trustee under the Indenture; and
(g) the Owner 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 under this Agreement or
otherwise or in relation to this Agreement or any Basic Document, at
the request, order or direction of any of the Certificateholders,
unless such Certificateholders have offered to the Owner Trustee
security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred by the Owner Trustee therein or
thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Agreement or in any Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of
any such act.
SECTION 6.4 Action Upon Instruction by Certificateholders.
(a) Subject to Section 4.4, the Certificateholders may by
written instruction direct the Owner Trustee in the management of the
Trust. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not
be required to take any action hereunder or under any Basic Document if
the Owner Trustee shall have reasonably determined, or shall have been
advised by counsel, that such action is likely to result in liability
on the part of the Owner Trustee or is contrary to the terms hereof or
of any Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of
this Agreement or any Basic Document, or is unsure as to the
application, intent, interpretation or meaning of any provision of this
Agreement or the Basic Documents, the Owner Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances)
to the Certificateholders requesting instruction as to the course of
action to be adopted, and, to the extent the Owner Trustee acts in good
faith in accordance with any such instruction received, the Owner
Trustee shall not be liable on account of such action to any Person. If
the Owner Trustee shall not have received appropriate instructions
within ten days of such notice (or within such shorter period of time
as reasonably may be specified in such notice or may be necessary under
the circumstances) it may, but shall be under no duty to, take or
refrain from taking such action which is consistent, in its view, with
this Agreement or the Basic Documents, and as it shall deem to be in
the best interests of the Certificateholders, and the Owner Trustee
shall have no liability to any Person for any such action or inaction.
SECTION 6.5 Furnishing of Documents. The Owner Trustee shall furnish
(a) to the Certificateholders, promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents and (b) to Noteholders, promptly upon
receipt of a written request therefor, copies of the Purchase Agreement, any
Subsequent Purchase Agreements, the Sale and Servicing Agreement, any Subsequent
Transfer Agreements and this Agreement.
SECTION 6.6 Representations and Warranties of Owner Trustee. The Owner
Trustee hereby represents and warrants to the Seller, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized, validly
existing and in good standing under the laws of the state of its
incorporation.
(b) It has full power, authority and legal right to execute,
deliver and perform this Agreement, and has taken all necessary action
to authorize the execution, delivery and performance by it of this
Agreement.
(c) The execution, delivery and performance by it of this
Agreement (i) shall not violate any provision of any law or regulation
governing the banking and trust powers of the Owner Trustee or any
order, writ, judgment or decree of any court, arbitrator or
governmental authority applicable to the Owner Trustee or any of its
assets, (ii) shall not violate any provision of the corporate charter
or by-laws of the Owner Trustee, or (iii) shall not violate any
provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of any lien on
any properties included in the Trust pursuant to the provisions of any
mortgage, indenture, contract, agreement or other undertaking to which
it is a party, which violation, default or lien could reasonably be
expected to have a materially adverse effect on the Owner Trustee's
performance or ability to perform its duties as Owner Trustee under
this Agreement or on the transactions contemplated in this Agreement.
(d) The execution, delivery and performance by the Owner
Trustee of this Agreement shall not require the authorization, consent
or approval of, the giving of notice to, the filing or registration
with, or the taking of any other action in respect of, any governmental
authority or agency regulating the banking and corporate trust
activities of banks or trust companies in the jurisdiction in which the
Trust was formed.
(e) This Agreement has been duly executed and delivered by the
Owner Trustee and constitutes the legal, valid and binding agreement of
the Owner Trustee, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
SECTION 6.7 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or
paper believed by it to be genuine and believed by it to be signed by
the proper party or parties and need not investigate any fact or matter
in any such document. The Owner Trustee may accept a certified copy of
a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been
duly adopted by such body and that the same is in full force and
effect. As to any fact or matter the method of the determination of
which is not specifically prescribed herein, the Owner Trustee may for
all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer or other authorized officers of
the relevant party, as to such fact or matter, and such certificate
shall constitute full protection to the Owner Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this
Agreement or the Basic Documents, the Owner Trustee: (i) may act
directly or through its agents, attorneys, custodians or nominees
pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such
agents, attorneys, custodians or nominees if such agents, attorneys,
custodians or nominees shall have been selected by the Owner Trustee
with reasonable care; and (ii) may consult with counsel, accountants
and other skilled professionals to be selected with reasonable care and
employed by it. The Owner Trustee shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the
opinion or advice of any such counsel, accountants or other such
Persons and not contrary to this Agreement or any Basic Document.
SECTION 6.8 Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Seller, the Indenture Trustee and
the Servicer in transactions in the same manner as it would have if it were not
the Owner Trustee.
SECTION 6.9 Compensation and Indemnity. The Owner Trustee shall receive
as compensation for its services hereunder such fees as have been separately
agreed upon before the date hereof between the Seller, or any person
representing the Seller, and the Owner Trustee, and the Owner Trustee shall be
entitled to be reimbursed by the Servicer for its other reasonable expenses
hereunder, including the reasonable compensation, expenses and disbursements of
such agents, custodians, nominees, representatives, experts and counsel as the
Owner Trustee may employ in connection with the exercise and performance of its
rights and its duties hereunder. The Servicer shall indemnify the Owner Trustee
and its successors, assigns, agents and servants in accordance with the
provisions of Section 8.02 of the Sale and Servicing Agreement. The indemnities
contained in this Section 6.9 shall survive the resignation or termination of
the Owner Trustee or the termination of this Agreement. Any amounts paid to the
Owner Trustee pursuant to this Article VI shall be deemed not to be a part of
the Owner Trust Estate immediately after such payment.
SECTION 6.10 Replacement of Owner Trustee.
(a) The Owner Trustee may resign at any time and be discharged
from the trusts hereby created by giving 30 days' prior written notice
thereof to the Servicer, provided that such resignation shall not
become effective until a successor Owner Trustee has been appointed.
The Servicer may appoint a successor Owner Trustee by delivering a
written instrument pursuant to Section 6.10(b). If no successor Owner
Trustee shall have been appointed and have accepted appointment within
30 days after the giving of such notice of resignation, the resigning
Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee. The Servicer shall remove the
Owner Trustee if:
(i) the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 6.13 and shall fail
to resign after written request therefor by the Servicer;
(ii) the Owner Trustee shall be adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer shall be
appointed or take charge or control of the Owner Trustee or of
its property or affairs for the purpose of rehabilitation,
conservation or liquidation; or
(iv) the Owner Trustee shall otherwise be incapable
of acting.
(b) If the Owner Trustee resigns or is removed or if a vacancy
exists in the office of Owner Trustee for any reason the Servicer shall
promptly appoint a successor
Owner Trustee by written instrument, in duplicate (one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee) and shall pay all fees
owed to the outgoing Owner Trustee.
(c) Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the
provisions of this Section 6.10 shall not become effective until a
written acceptance of appointment is delivered by the successor Owner
Trustee to the outgoing Owner Trustee and the Servicer and all fees and
expenses due to the outgoing Owner Trustee are paid. Any successor
Owner Trustee appointed pursuant to this Section 6.10 shall be eligible
to act in such capacity in accordance with Section 6.13 and, following
compliance with the preceding sentence, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner
Trustee. The Servicer shall provide notice of such resignation or
removal of the Owner Trustee to each of the Rating Agencies.
(d) The predecessor Owner Trustee shall upon payment of its
fees and expenses deliver to the successor Owner Trustee all documents
and statements and monies held by it under this Agreement. The Servicer
and the predecessor Owner 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 Owner
Trustee all such rights, powers, duties and obligations.
(e) Upon acceptance of appointment by a successor Owner
Trustee pursuant to this Section 6.10, the Servicer shall mail notice
of the successor of such Owner Trustee to all Certificateholders, the
Indenture Trustee, the Noteholders and the Rating Agencies .
SECTION 6.11 Merger or Consolidation of Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such corporation shall be eligible pursuant to Section 6.13, and without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; provided, however, that the Owner Trustee shall mail notice
of such merger, conversion or consolidation to the Rating Agencies.
SECTION 6.12 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at
any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Owner Trust Estate or any
Financed Boat may at the time be located, the Servicer and the Owner
Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the
Owner Trustee to act as co-trustee, jointly with the Owner Trustee, or
as separate trustee or trustees, of all or any part
of the Owner Trust Estate, and to vest in such Person, in such
capacity, such title to the Trust, or any part thereof, and, subject to
the other provisions of this Section 6.12, such powers, duties,
obligations, rights and trusts as the Servicer and the Owner Trustee
may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a
request so to do, the Owner Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 6.13 and no notice of the
appointment of any co-trustee or separate trustee shall be required
pursuant to Section 6.10.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Owner Trustee shall be conferred
upon and exercised or performed jointly by the Owner Trustee
and such separate trustee or co-trustee (it being understood
that such separate trustee or co-trustee is not authorized to
act separately without the Owner Trustee joining in such act),
except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be
personally liable by reason of any act or omission of any
other trustee under this Agreement; and
(iii) the Servicer and the Owner Trustee acting
jointly may at any time accept the resignation of or remove
any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall
refer to this Agreement and the conditions of this Article. Each
separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Owner Trustee. Each such instrument shall
be filed with the Owner Trustee and a copy thereof given to the
Servicer.
(d) Any separate trustee or co-trustee may at any time appoint
the Owner Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or
co-trustee 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 Owner Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
SECTION 6.13 Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times: (a) be authorized to exercise corporate trust
powers; (b) have a combined capital and surplus of at least $50,000,000 and be
subject to supervision or examination by federal or state authorities; and (c)
have (or have a parent which has) a long-term unsecured debt rating of at least
"BBB" by Standard & Poor's and have a long-term unsecured debt rating of at
least "Baa3" by Moody's. If such corporation shall publish reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section 6.13,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.13, the Owner Trustee shall
resign immediately in the manner and with the effect specified in Section 6.10.
At all times, the Owner Trustee or Co-trustee appointed pursuant hereto shall be
a person that satisfies the provisions of Section 3807(a) of the Business Trust
Statute (the "Delaware Trustee").
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1 Termination of Trust Agreement.
(a) This Agreement has been entered into in part to induce the
Indenture Trustee and the Certificateholders from time to time to
participate in the transactions contemplated hereby, and each of the
Owner Trustee and the Seller agree that the Indenture Trustee (so long
as the Indenture shall not have been terminated in accordance with its
terms) and the Certificateholders from time to time are third party
beneficiaries hereof, and shall be entitled to enforce the terms of
this Agreement to the same extent as if they were signatories hereto,
subject, however, to Article IV hereof and to the applicable provisions
of the Indenture. So long as the Indenture shall not have been
terminated in accordance with its terms, this Agreement and the Trust
created hereby are irrevocable by the Owner Trustee and the Seller,
unless the Indenture Trustee and the Certificateholders consent in
writing to such termination. This Agreement (other than Section 6.9)
and the Trust shall terminate and be of no further force or effect on
the earlier of: (i) the final distribution by the Owner Trustee of all
monies or other property or proceeds of the Owner Trust Estate in
accordance with the terms of the Indenture, the Sale and Servicing
Agreement (including the exercise by the Servicer of its option to
purchase the Contracts pursuant to Section 11.01 of the Sale and
Servicing Agreement or resulting from the mandatory sale of all
Contracts pursuant to Section 11.02 of the Sale
and Servicing Agreement) and Article V, (ii) at the time provided in
Section 7.2 or (iii) twenty-one years less one day after the death of
the last survivor of all of the decedents of the grandparents of Xxxxx
X. Xxxxxxxxxxx living on the date of the earliest execution of this
Agreement by any party hereto, but if this Agreement and the Trust
created hereby shall be or become authorized under applicable law to be
valid for a period commencing on the twenty-first anniversary of the
death of such last survivor (or, without limiting the generality of the
foregoing, if legislation shall become effective providing for the
validity of this Agreement and the Trust created hereby for a period in
gross exceeding the period for which this Agreement and the Trust
created hereby are hereinabove stated to extend and be valid), then
this Agreement and the Trust created hereby shall not terminate under
this subsection (iii), but shall extend to and continue in effect, but
only if such non-termination and extension shall then be valid under
applicable law, until the day proceeding such date as the same shall,
under applicable law, cease to be valid. Upon such termination, all
monies or other property or proceeds constituting part of the Owner
Trust Estate shall be distributed in accordance with the terms of the
Agreement. The bankruptcy, liquidation, dissolution, death or
incapacity of any Certificateholder, shall not (x) operate to terminate
this Agreement or the Trust, nor (y) entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any
action or proceeding in any court for a partition or winding up of all
or any part of the Trust or the Owner Trust Estate nor (z) otherwise
affect the rights, obligations and liabilities of the parties hereto.
The bankruptcy, liquidation or dissolution of the Owner Trustee (or any
other beneficiary herewith) will not terminate this Agreement or the
Trust, nor entitle such person's legal representatives or heirs, as
appropriate, to claim an accounting or to take any action or proceeding
in any court for a partition or winding up of the Trust or Owner Trust
Estate, nor otherwise affect the rights, obligations and liabilities of
the parties hereto. No creditor of any Certificateholder shall obtain
legal title to or exercise legal or equitable remedies with respect to
the Owner Trust Estate as a result of such Certificateholder's holding
of the Certificate. No transfer, by operation of law or otherwise, of
any right, title and interest of any Certificateholder in and to its
undivided beneficial interest in the Owner Trust Estate shall operate
to terminate this Agreement or the Trust created hereby.
(b) Except as provided in Section 7.1(a), neither the Seller
nor any Certificateholder shall be entitled to revoke or terminate the
Trust.
(c) Notice of any termination of the Trust, specifying the
Distribution Date upon which the Certificateholders shall surrender
their Certificates to the Paying Agent for payment of the final
distribution and cancellation, shall be given by the Owner Trustee by
letter to Certificateholders mailed within five Business Days of
receipt of notice of such termination from the Servicer given pursuant
to Section 11.01 of the Sale and Servicing Agreement, or within five
Business Days of the Owner Trustee receiving notice of such termination
from the Indenture Trustee pursuant to Section 11.02 of the Sale and
Servicing Agreement, stating: (i) the Distribution Date upon or with
respect to which final payment of the Certificates shall be made upon
presentation and surrender of the Certificates at the office of the
Paying Agent 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 of the Paying Agent therein specified. The Owner Trustee shall
give such notice to the Certificate Registrar (if other than the Owner
Trustee) and the Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the
Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Distribution Date
pursuant to Section 5.2.
(d) If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Owner Trustee
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 Owner 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 and other assets that shall
remain subject to this Agreement. Subject to applicable laws with
respect to escheat of funds, any funds remaining in the Trust after
exhaustion of such remedies in the preceding sentence shall be deemed
property of ____________________ and distributed by the Owner Trustee
to ____________________.
(e) Upon the winding up of the Trust and its termination, the
Owner Trustee shall cause the Certificate of Trust to be canceled by
filing a certificate of cancellation with the Secretary of State in
accordance with the provisions of Section 3810 of the Business Trust
Statute.
ARTICLE VIII
AMENDMENTS
SECTION 8.1 Amendments Without Consent of Certificateholders or
Noteholders. This Agreement may be amended by the Seller and the Owner Trustee
without the consent of any of the Noteholders or the Certificateholders (but
with prior written notice to each of the Rating Agencies and in the case of
clauses (iii) and (vi), satisfaction of the Rating Agency Condition), to (i)
correct manifest error or cure any ambiguity, (ii) correct or supplement any
provision in this Agreement that may be inconsistent with any other provision in
this Agreement, (iii) add or amend any provision as requested by Moody's or
Standard & Poor's to maintain or improve the rating of the Notes or
Certificates, (iv) add to the covenants, restrictions or obligations of the
Seller, the Owner Trustee or the Indenture Trustee, (v) evidence and provide for
the acceptance of the appointment of a successor trustee with respect to the
Owner Trust Estate and add to or change any provisions as shall be necessary to
facilitate the administration of the trusts hereunder by more than one trustee
pursuant to Article VI and (vi) add, change or eliminate any other
provision of this Agreement provided that an amendment pursuant to this clause
(vi), as evidenced by an Opinion of Counsel, does not adversely affect in any
material respect the interests of the Noteholders or the Certificateholders.
SECTION 8.2 Amendments With Consent of Certificateholders and
Noteholders. This Agreement may be amended from time to time by the Seller and
the Owner Trustee with the consent of Noteholders whose Notes evidence not less
than a majority of the aggregate outstanding amount of the Notes as of the close
of the preceding Distribution Date and the consent of Certificateholders whose
Certificates evidence not less than a majority of the Certificate Balance as of
the close of the preceding Distribution Date (which consent, whether given
pursuant to this Section 8.2 or pursuant to any other provision of this
Agreement, shall be conclusive and binding on such Person and on all future
Holders of such Notes or Certificates and of any Notes or Certificates issued
upon the transfer thereof or in exchange thereof or in lieu thereof whether or
not notation of such consent is made upon the Notes or Certificates) for the
purpose of adding any 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 Noteholders or the Certificateholders; provided, however, that no such
amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Contracts, or
distributions that shall be required to be made on any Note or Certificate, any
Contract Rate, the Pass Through Rate or the Class A Rate or (b) reduce the
aforesaid percentage required to consent to any such amendment, without the
consent of the holders of all Notes and all of the Certificate Balance with
respect to Certificates then outstanding. The Owner Trustee shall furnish notice
to each of the Rating Agencies prior to obtaining consent to any proposed
amendment under this Section 8.2.
SECTION 8.3 Form of Amendments.
(a) Promptly after the execution of any amendment, supplement
or consent pursuant to Section 8.1 or 8.2, the Owner Trustee shall
furnish written notification of the substance of such amendment or
consent to each Certificateholder and the Indenture Trustee.
(b) It shall not be necessary for the consent of
Certificateholders, the Noteholders or the Indenture Trustee pursuant
to Section 8.2 to approve the particular form of any proposed amendment
or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents (and any
other consents of Certificateholders provided for in this Agreement or
in any other Basic Document) and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such
reasonable requirements as the Owner Trustee may prescribe.
(c) Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such
amendment with the Secretary of State.
(d) Prior to the execution of any amendment to this Agreement
or the Certificate of Trust, the Owner Trustee shall be entitled to
receive and rely upon an Opinion of Counsel stating that the execution
of such amendment is authorized or permitted by this Agreement. The
Owner Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Owner Trustee's own rights, duties or
immunities under this Agreement or otherwise.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 No Legal Title to Owner Trust Estate. The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided ownership interest therein only in accordance with
Articles V and VII. No transfer, by operation of law or otherwise, of any right,
title, and interest of the Certificateholders to and in their ownership interest
in the Owner Trust Estate shall operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Owner Trust Estate.
SECTION 9.2 Limitations on Rights of Others. Except for Section 2.7,
the last sentence of Section 5.2(a) and Section 9.12, the provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Seller, the
Certificateholders, the Servicer and, to the extent expressly provided herein,
the Indenture Trustee and the Noteholders, and nothing in this Agreement,
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Owner Trust Estate or under or
in respect of this Agreement or any covenants, conditions or provisions
contained herein.
SECTION 9.3 Notices.
(a) All demands, notices and communications upon or to the
Seller, the Servicer, the Indenture Trustee, the Owner Trustee or the
Rating Agencies under this Agreement shall be in writing personally
delivered, sent by electronic facsimile (with hard copy to follow via
first class mail), provided, however, receipt of such is acknowledged
by return facsimile or otherwise in writing, or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly
given upon receipt (a) in the case of the Seller, at the following
address: 000 XXX Xxxxx, Xxxxxxxxxx, X.X. 00000, (b) in the case of the
Servicer, at the following address: 000 XXX Xxxxx, Xxxxxxxxxx, X.X.
00000, (c) in the case of the Indenture Trustee, at its Corporate Trust
Office, (d) in the case of the Trust or the Owner Trustee, to the Owner
Trustee at its Corporate Trust Office, (e) in the case of Xxxxx'x
Investors Service, Inc., to Xxxxx'x Investors Service, Inc., ABS
Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
(f) in the case of Standard & Poor's Corporation, to Standard & Poor's
Corporation, 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000,
Attention: Asset Backed
Surveillance Department, or at such other address as shall be
designated by such Person in a written notice to the other parties to
this Agreement.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid,
at the address of such Holder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 9.4 Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
SECTION 9.5 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
SECTION 9.6 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Seller,
the Owner Trustee and each Certificateholder and their respective successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a Certificateholder shall bind
the successors and assigns of such Certificateholder.
SECTION 9.7 No Petition Covenant. Notwithstanding any prior termination
of this Agreement, the Trust (or the Owner Trustee on behalf of the Trust), each
Certificateholder or Certificate Owner, the Indenture Trustee and each
Noteholder or Note Owner shall not, prior to the date which is one year and one
day after the termination of this Agreement with respect to the Seller,
acquiesce, petition or otherwise invoke or cause the Seller to invoke the
process of any court or governmental authority for the purpose of commencing or
sustaining a case against the Seller under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Seller.
SECTION 9.8 No Recourse. Each Certificateholder by accepting a
Certificate acknowledges that such Certificateholder's Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Seller, the Servicer, the Owner Trustee, the Indenture
Trustee or any Affiliate thereof and no recourse may be had against such parties
or their assets, except as may be expressly set forth or contemplated in this
Agreement, the Certificates or the Basic Documents.
SECTION 9.9 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 9.10 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 9.11 Certificate Transfer Restrictions. The Certificates may
not be acquired by or for the account of (i) an employee benefit plan (as
defined in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or (iii) any
entity whose underlying assets include plan assets by reason of a plan's
investment in the entity (each, a "Benefit Plan"). By accepting and holding a
Certificate, the Holder thereof and the Certificate Owner shall each be deemed
to have represented and warranted that it is not a Benefit Plan and not subject
to the foregoing limitation.
SECTION 9.12 Indemnification by the Servicer. The Owner Trustee further
acknowledges and accepts the conditions and limitations with respect to the
Servicer's obligation to indemnify, defend and hold the Owner Trustee harmless
as set forth in Section 8.02 of the Sale and Servicing Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written
--------------------,
as Owner Trustee
By: ___________________________________
Name:
Title:
THE CIT GROUP SECURITIZATION
CORPORATION II
By: ___________________________________
Name:
Title:
EXHIBIT A
NUMBER ______ $_________________
CUSIP NO. _________
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO INTEREST IN THIS CERTIFICATE MAY BE ACQUIRED BY OR FOR THE ACCOUNT
OF (i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA")) THAT IS SUBJECT
TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN DESCRIBED IN SECTION
4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (INCLUDING, WITHOUT
LIMITATION, INDIVIDUAL RETIREMENT ACCOUNTS AND XXXXX PLANS), OR (iii) ANY ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN
THE ENTITY. BY ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER HEREOF AND THE
CERTIFICATE OWNER SHALL EACH BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT
IS NOT A BENEFIT PLAN.
CIT MARINE TRUST ____-_
____% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of retail installment sale contracts secured
by new and used boats and sold to the Trust by The CIT Group Securitization Corp
II (This Certificate does not represent an interest in or obligation of The CIT
Group Securitization Corporation II, The CIT Group/Sales Financing, Inc. or The
CIT Group, Inc. or any of their respective affiliates, except to the extent
described below.)
THIS CERTIFIES THAT ____________________ is the registered owner of a
nonassessable, fully-paid, fractional undivided interest in CIT Marine Trust
____-_ (the "Trust") formed by The CIT Group Securitization Corporation II, a
Delaware corporation.
The Trust was created pursuant to a Trust Agreement, dated as of
____________, ____ (as amended and supplemented from time to time, the "Trust
Agreement"), between the Seller and [____________________], as owner trustee
(the "Owner Trustee"), a summary of certain of the pertinent provisions of which
is set forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates designated
as ____% Asset Backed Certificates" (the "Certificates"). This Certificate is
issued under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Certificate by virtue of
the acceptance hereof assents and by which such holder is bound. The property of
the Trust includes a pool of installment sale contracts (the "Contracts")
secured by the new and used boats financed thereby (the "Financed Boats"),
certain monies received under the Initial Contracts on and after ____________,
____ (the "Initial Cut-off Date") or under the Subsequent Contracts as of the
related Subsequent Cut-off Date, security interests in the Initial Financed
Boats, the Collection Account, the Cash Collateral Account, the Note
Distribution Account, the Certificate Distribution Account, the Capitalized
Interest Account and the Pre-Funding Account, in each case together with the
proceeds thereof (except for investment earnings on the Cash Collateral
Account), the proceeds from claims under certain insurance policies in respect
of individual Initial Financed Boats or the related Obligors and certain rights
under the Sale and Servicing Agreement. The rights of the holders of the
Certificates are subordinated to the rights of the holders of the Notes, as set
forth in the Sale and Servicing Agreement.
Under the Trust Agreement, there shall be distributed on the 15th day
of each month or, if such 15th day is not a Business Day, the next Business Day,
commencing on _________ 15, ____ (each, a "Distribution Date"), to the person in
whose name this Certificate is registered on the related Record Date (as defined
below), such Certificateholder's fractional undivided interest in the amount of
interest and principal to be distributed to Certificateholders on such
Distribution Date. On each Distribution Date interest on this Certificate shall
be distributed in an amount
equal to one-twelfth of the product of the rate per annum shown above and the
outstanding principal amount of this Certificate as of the preceding
Distribution Date after giving effect to all payments of principal and other
reductions in the principal amount of this Certificate to be made on such
Distribution Date (or in the case of the first Distribution Date the original
outstanding principal amount of this Certificate). The "Record Date," with
respect to any Distribution Date, means the close of business on the day
immediately preceding such Distribution Date, or if Definitive Certificates are
issued, the last day of the month immediately preceding the month in which such
Distribution Date occurs.
The distributions in respect of principal and interest on this
Certificate are payable in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts. All payments made by the Trust with respect to this Certificate shall be
applied first to interest due and payable on this Certificate as provided above
and then to the unpaid distributions in respect of principal on this
Certificate.
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as and to the extent described in the Sale and
Servicing Agreement and the Indenture.
It is the intent of the Seller, the Servicer and the Certificateholders
that, for purposes of federal income, state and local income and franchise taxes
and any other taxes imposed upon, measured by or based upon gross or net income,
the Trust shall be treated as a partnership. Except as otherwise required by
appropriate taxing authorities, the Seller and the other Certificateholders by
acceptance of a Certificate, agree to treat, and to take no action inconsistent
with the treatment of, the Certificates for such tax purposes as interests in
such partnership.
Each Certificateholder or Certificate Owner, by its acceptance of a
Certificate or, in the case of a Certificate Owner, a beneficial interest in a
Certificate, covenants and agrees that such Certificateholder or Certificate
Owner, as the case may be, shall not, prior to the date which is one year and
one day after the termination of the Trust Agreement, acquiesce, petition or
otherwise invoke or cause the Seller or the Issuer to invoke the process of any
court or governmental authority for the purpose of commencing or sustaining a
case against the Seller or the Issuer under any federal or state bankruptcy,
insolvency, reorganization or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Seller or the Issuer or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Seller or the Issuer.
Distributions on this Certificate shall be made as provided in the
Trust Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this certificate or the making of any notation hereon, except
that with respect to Certificates registered on the Record Date in the name of
the nominee of the Depository (initially, such nominee to be Cede & Co.),
payments shall be made by wire transfer in immediately available funds to the
account designated by such nominee. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate shall be made after due notice by the Owner Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office maintained for such purpose by the Owner Trustee.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
CIT MARINE TRUST ____-_
By: ____________________,
not in its individual capacity,
but solely as Owner Trustee
By: ______________________________
Name:
Title:
Dated:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred
to in the within-mentioned Trust Agreement.
By: ____________________, By: ____________________,
not in its individual capacity not in its individual capacity
but solely as Owner Trustee but solely as Owner Trustee,
as authenticating agent
By __________________________ By __________________________
Name: Name:
Title: Title:
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an interest in,
the Seller, the Servicer, The CIT Group, Inc., the Indenture Trustee, the Owner
Trustee, the Cash Collateral Depositor or any affiliates of any of them and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated herein or in the Trust Agreement or the
Basic Documents. In addition, this Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment to
certain collections and recoveries with respect to the Contracts (and certain
other amounts), all as more specifically set forth herein and in the Trust
Agreement and the Sale and Servicing Agreement. A copy of each of the Sale and
Servicing Agreement and the Trust Agreement may be examined during normal
business hours at the principal office of the Seller, and at such other places,
if any, designated by the Seller, by any Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Trust Agreement at any
time by the Seller and the Owner Trustee with the consent of the Holders of the
Notes evidencing not less than a majority of the aggregate outstanding amount of
the Notes as of the close of the preceding Distribution Date and the consent of
Certificateholders whose Certificates evidence not less than a majority of the
Certificate Balance as of the close of the preceding Distribution Date. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such holder and on all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent is made upon this Certificate. The Trust
Agreement also permits the amendment thereof, in certain circumstances, without
the consent of the Holders of any of the Certificates or the Notes.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee for such purposes, accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Trust Agreement is [____________________].
The Certificates are issuable only as registered Certificates without
coupons in denominations of $______ or integral multiples of $1,000 in excess
thereof; provided, however, that one Certificate may be issued in a denomination
other than an integral multiple of $1,000. As provided in the Trust Agreement
and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of authorized denominations evidencing the
same aggregate denomination, as requested by the Holder surrendering the same;
provided,
however, that no Certificate may be subdivided such that the denomination of any
resulting Certificate is less than $______. No service charge shall be made for
any such registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Owner Trustee, the Certificate Registrar or any such agent shall be affected by
any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Certificateholders
of all amounts required to be paid to them pursuant to the Trust Agreement and
the Sale and Servicing Agreement and the disposition of all property held as
part of the Trust. CITSF may at its option purchase the Contracts at a price
specified in the Sale and Servicing Agreement, and such purchase of the
Contracts shall effect early retirement of the Certificates; provided, however,
that such right of purchase is exercisable on any Distribution Date following
any Record Date as of which the Pool Balance is [10]% or less of the Initial
Pool Balance. In addition, within ten days following a Distribution Date as of
which the Pool Balance is [5]% or less of the Initial Pool Balance an auction
sale of the remaining Contracts will be conducted (in each case, as described in
the Sale and Servicing Agreement) and such auction shall effect early retirement
of the Certificates.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
________________________________________________________________________________
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated: ______________________*
Signature Guaranteed:
____________________
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
EXHIBIT B
CERTIFICATE OF TRUST OF CIT MARINE TRUST ____-_
THIS Certificate of Trust of CIT Marine Trust ____-_ (the "Trust"),
dated as of ____________, ____, is being duly executed and filed by
[____________________], a Delaware banking corporation, as trustee, to form a
business trust under the Delaware Business Trust Act (12 Del. C. 3801 et seq.).
1. Name. The name of the business trust formed hereby is CIT Marine
Trust ____-_.
2. Delaware Trustee. The name and business address of the Trust
resident in the State of Delaware is ____________________, ____________________.
3. This Certificate of Trust shall be effective as of ____________,
____.
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first-above written.
________________________________________,
not in its individual capacity but
solely as Owner Trustee under
a Trust Agreement dated as of ___________, ____
By: ______________________________
Name:
Title:
