EXHIBIT 4.2
AMENDED AND RESTATED TRUST AGREEMENT
BETWEEN
THE CIT GROUP SECURITIZATION CORPORATION II,
SELLER
AND
CHASE MANHATTAN BANK DELAWARE,
OWNER TRUSTEE
DATED AS OF February 1, 1999
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE.........................1
SECTION 1.1 Definitions...................................................1
ARTICLE II ORGANIZATION......................................................1
SECTION 2.1 Name .........................................................1
SECTION 2.2 Office .......................................................1
SECTION 2.3 Purposes and Powers...........................................2
SECTION 2.4 Appointment of Owner Trustee..................................2
SECTION 2.5 Initial Capital Contribution of Owner Trust Estate............2
SECTION 2.6 Declaration of Trust..........................................3
SECTION 2.7 Transfer of Interest to The CIT GP Corporation III............3
SECTION 2.8 Title to Trust Property.......................................3
SECTION 2.9 Situs of Trust................................................4
SECTION 2.10 Representations and Warranties of the Seller..................4
SECTION 2.11 Representations and Warranties of the Holder of the AO
Interest..................................................5
SECTION 2.12 Tax Treatment................................................5
ARTICLE III THE CERTIFICATES.................................................7
SECTION 3.1 Initial Certificate Ownership.................................7
SECTION 3.2 Form of the Certificates......................................7
SECTION 3.3 Execution, Authentication and Delivery........................7
SECTION 3.4 Registration; Registration of Transfer
and Exchange of Certificates................................8
SECTION 3.5 Mutilated; Destroyed; Lost or Stolen Certificates.............9
SECTION 3.6 Persons Deemed Certificateholders............................10
SECTION 3.7 Access to List of Certificateholders' Names and Addresses....10
SECTION 3.8 Maintenance of Corporate Trust Office........................10
SECTION 3.9 Appointment of Paying Agent..................................10
SECTION 3.10 Seller as Certificateholder..................................11
ARTICLE IV ACTIONS BY OWNER TRUSTEE.........................................11
SECTION 4.1 Prior Notice to Certificateholders with
Respect to Certain Matters................................11
SECTION 4.2 Action by Certificateholders with Respect to Certain Matters.12
SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy......12
SECTION 4.4 Restrictions on Certificateholders' Power....................12
SECTION 4.5 Majority Control.............................................13
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES........................13
SECTION 5.1 Establishment of Accounts....................................13
SECTION 5.2 Application of Trust Funds...................................13
SECTION 5.3 Method of Payment............................................14
SECTION 5.4 Accounting and Reports to the Certificateholders,
The Internal Revenue Service and Others..................15
SECTION 5.5 Signature on Returns; Tax Matters Partner....................15
ARTICLE VI THE OWNER TRUSTEE................................................15
SECTION 6.1 Duties of Owner Trustee......................................15
SECTION 6.2 Rights of Owner Trustee......................................16
SECTION 6.3 Acceptance of Trusts and Duties..............................17
SECTION 6.4 Action Upon Instruction by Certificateholders................18
SECTION 6.5 Furnishing of Documents......................................19
SECTION 6.6 Representations and Warranties of Owner Trustee..............19
SECTION 6.7 Reliance; Advice of Counsel..................................20
SECTION 6.8 Owner Trustee May Own Certificates and Notes.................20
SECTION 6.9 Compensation and Indemnity...................................21
SECTION 6.10 Replacement of Owner Trustee.................................21
SECTION 6.11 Merger or Consolidation of Owner Trustee.....................22
SECTION 6.12 Appointment of Co-Trustee or Separate Trustee................22
SECTION 6.13 Eligibility Requirements for Owner Trustee...................24
ARTICLE VII TERMINATION OF TRUST AGREEMENT..................................24
SECTION 7.1 Termination of Trust Agreement...............................24
ARTICLE VIII AMENDMENTS.....................................................26
SECTION 8.1 Amendments Without Consent of
Certificateholders or Noteholders.........................26
SECTION 8.2 Amendments With Consent of Certificateholders
and Noteholders...........................................26
SECTION 8.3 Form of Amendments...........................................27
ARTICLE IX MISCELLANEOUS....................................................27
SECTION 9.1 No Legal Title to Owner Trust Estate.........................27
SECTION 9.2 Limitations on Rights of Others..............................28
SECTION 9.3 Notices .....................................................28
SECTION 9.4 Severability.................................................28
SECTION 9.5 Counterparts.................................................29
SECTION 9.6 Successors and Assigns.......................................29
SECTION 9.7 No Petition Covenant.........................................29
SECTION 9.8 No Recourse..................................................29
SECTION 9.9 Headings.....................................................29
SECTION 9.10 Governing Law................................................29
SECTION 9.11 Certificate Transfer Restrictions............................29
SECTION 9.12 Indemnification by the Servicer..............................30
SECTION 9.13 Third Party Beneficiary......................................30
SECTION 9.14 No Duty to Monitor...........................................30
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Exhibit A
CIT Marine Trust 1999-A 6.20% Asset Backed Certificate
Exhibit B
Certificate of Trust
Exhibit C
Form of Marine Trust 1999-A Certificate Transferee Letter
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of February 1, 1999,
between THE CIT GROUP SECURITIZATION CORPORATION II, a Delaware corporation (as
amended, modified or supplemented from time to time as permitted hereby, this
"Agreement"), as Seller, and CHASE MANHATTAN BANK DELAWARE, a Delaware banking
corporation with its principal place of business in the State of Delaware, as
Owner Trustee.
WHEREAS, the Seller and the Owner Trustee entered into a Trust Agreement,
dated as of February 1, 1999 (the "Original Trust Agreement");
WHEREAS, pursuant to the Original Trust Agreement, the Trust was created
under the Business Trust Statute; and
WHEREAS, the Seller and the Owner Trustee desire to amend and restate the
Original Trust Agreement as permitted therein and to continue the Trust as a
business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Seller and the Owner Trustee
hereby amend and restate in its entirety the Original Trust Agreement 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 1999-A" 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 Certificateholders, the Insurer
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 pay
the organizational, start-up and transactional expenses of the Trust and to pay
the balance of the proceeds to the Seller and the Selling Trust 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 Certificateholders 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 apply
the proceeds thereof as provided in the Sale and Servicing Agreement; and
(h) 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. Pursuant
to the Original Trust Agreement, the Seller sold, assigned, transferred,
conveyed and set over to the Owner Trustee, as of February 1, 1999, the sum of
One Dollar ($1). The Owner Trustee hereby acknowledges receipt in trust from the
Seller, as of the date hereof, of the foregoing contribution,
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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 Certificateholders, 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 Servicer, on behalf of
the Trust, shall 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 Transfer of Interest to The CIT GP Corporation III
(a) On the Closing Date, the Seller shall and does hereby transfer and
assign its entire interest in the Trust (including the AO Interest but excluding
the Certificates sold on the Closing Date to the underwriters) to CIT through
the issuance of a dividend and The CIT GP Corporation III acknowledges receipt
of such interest in the Trust (including the AO Interest) from CIT as a capital
contribution. The holder of the AO Interest shall pay organizational expenses of
the Trust as they may arise or shall, upon the request of the Owner Trustee,
promptly reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee. The obligations of the holder of the AO Interest under this subsection
2.7(a) shall be evidenced by the Certificates issued to the holder of the AO
Interest, which for purposes of the Business Trust Statute shall be deemed to be
a separate class of Certificates from all other Certificates issued by the
Trust.
(b) No Certificateholder, other than to the extent set forth in subsection
2.7(a) with respect to the holder of the AO Interest, shall have any personal
liability for any liability or obligation of the Trust.
(c) No Certificateholder, including the holder of the AO Interest, shall
have the right to exercise any control of the Trust other than to the extent of
its percentage ownership of the Certificates as provided herein.
SECTION 2.8 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.
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SECTION 2.9 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. 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 2.10 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 sold by it pursuant to the Sale and Servicing Agreement.
(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 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.
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SECTION 2.11 Representations and Warranties of the Holder of the AO
Interest.
The CIT GP Corporation III, as intended holder of the AO Interest hereby
represents and warrants to the Owner Trustee, as of the Closing Date, that:
(a) It has been duly 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.
(b) It 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) It has the power and authority to execute and deliver this Agreement
and to carry out its terms and the execution, delivery and performance of this
Agreement have been duly authorized 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, or any indenture, agreement or other instrument to
which it 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 it or any of its
properties.
SECTION 2.12 Tax Treatment
(a) The Servicer, on behalf of the Trust, shall maintain capital accounts
("Capital Accounts") for each Certificateholder and allocations of income, gain,
loss or deduction as provided herein shall be credited or debited, as the case
may be, to such Capital Accounts. Contributions to, and distributions from, the
Trust shall be credited or debited, as the case may be, to such Capital
Accounts.
(b) 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 as determined by the Servicer
as follows:
(i) 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 (x)
the amount of any interest that accrues on the Certificates for such
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month based on the Pass-Through Rate, (y) an amount equivalent to any
overdue interest on the Certificates that accrued during a prior month (to
the extent that no allocation of taxable income has been previously made
for such amount under clause (x)), and (z) any Trust income attributable
to discount on the Contracts that corresponds to any excess of the
principal amount of the Certificates over initial issue price; and
(ii) to the holder of the AO Interest, to the extent of any
remaining net income.
If the net income of the Trust for any month is insufficient for the
allocations described in clause (b) (i) above, subsequent net income shall first
be allocated to make up such shortfall before being allocated as provided in
clause (b) (ii). 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 to the
holder of the AO Interest to the extent the holder of the AO Interest is
reasonably expected, as determined by the Servicer, to bear the economic burden
of such net losses, then net losses 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.
The holder of the AO Interest is authorized to modify the allocations in this
paragraph if necessary or appropriate, in its sole discretion, for the
allocations to fairly reflect the economic income, gain or loss to the holder of
the AO Interest, the Certificateholders, or as otherwise required by the Code.
(c) Notwithstanding anything in this Section 2.12 to the contrary, (i)
items of net loss and deduction attributable to nonrecourse debt of the Trust
and to "partner nonrecourse debt" (as defined in the Section 704(b) Regulations)
shall be allocated as provided in the Section 704(b) Regulations; (ii) if in any
period, there is a net decrease in the amount of "minimum gain" (as defined in
the Section 704(b) Regulations) of the Trust, or in the amount of "minimum gain"
attributable to "partner nonrecourse debt", then the Certificateholders shall be
allocated items of income or gain for such period and subsequent periods to the
extent and in the manner provided in Treasury Regulations Sections 1.704-2(f)
and 1.704-(2)(i)(4) as a "minimum gain chargeback" (as defined in the Section
704(b) Regulations); (iii) allocations of income of the Trust shall be made in a
manner necessary to satisfy a "qualified income offset" provision as described
in Treasury Regulation Section 1.704-1(b)(2)(ii)(d); and (iv) in no event shall
net losses or deductions be allocated to a Certificateholder to the extent that
such allocation would result in such Certificateholder having a negative balance
in its Capital Account which exceeds the sum of its share of "minimum gain" of
the Trust and "minimum gain" attributable to "partner nonrecourse debt" and the
amount such Certificateholder is obligated (or deemed obligated) to contribute
to the Trust upon liquidation of the Trust.
(d) For purposes of Treasury Regulations Section 1.752-3(a)(3), "excess
nonrecourse liabilities" shall be allocated among the Certificateholders in
accordance with the manner in which it is reasonably expected that the
deductions attributable to those nonrecourse liabilities will be allocated.
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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) Subject to Section 2.7(a), there shall be one class of Certificates
which shall be the 6.20% Asset-Backed Certificates of the Trust. The
Certificates shall be substantially in the form set forth in Exhibit A and shall
be issued in minimum denominations of $20,000 and in integral multiples of
$1,000 in excess thereof; provided, however, that (a) Certificates shall be
issued to the holder of the AO Interest pursuant to Section 2.7 in such
denominations as to represent at least 1% of the initial Certificate Balance and
(b) 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 Certificates 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 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. The authenticating agent shall initially be Chase Manhattan
Bank. Such authentication shall constitute conclusive evidence that such
Certificate shall have been duly
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authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication.
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 $20,000. Chase Manhattan
Bank 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
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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 protected 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 protected 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
protected 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.
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(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, the
Seller, the Insurer and the holder of the AO Interest, within 15 days after
receipt by the Owner Trustee of a request therefor from the Servicer, the
Insurer, the Seller or the holder of the AO Interest in writing, a list, in such
form as the Servicer, the Seller or the holder of the AO Interest 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, the holder of the AO Interest 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 Borough of Manhattan, the City of New York, 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 Chase Manhattan Bank, 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 amounts, if any, to be paid to the holder of the AO
Interest, in each case pursuant to the Sale and Servicing Agreement. Any Paying
Agent shall have the revocable power to withdraw funds from the Certificate
Distribution 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
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perform its obligations under this Agreement in any material respect. The Paying
Agent shall initially be Chase Manhattan Bank, 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 Chase Manhattan Bank 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 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
and the Insurer in writing of the proposed action at least 30 days before the
taking of such action, and (ii) neither the Insurer (so long as the Insurer is
the Controlling Party) nor the Certificateholders (if the Insurer is not the
Controlling Party) shall have notified the Owner Trustee in writing prior to the
30th day after such notice is given that such Certificateholders (if the Insurer
is not the Controlling Party) or the Insurer (so long as the Insurer is the
Controlling Party) have withheld consent or provided alternative direction (any
direction by the Certificateholders shall require the prior consent of the
Insurer unless the Insurer has been discharged from all obligations under the
Certificate Insurance Policy and paid in full):
(a) the initiation of any material claim or lawsuit by the Trust (except
claims or lawsuits 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);
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(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);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder or the Insurer is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder or the Insurer 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 the Insurer or in circumstances in which the Sale
and Servicing Agreement expressly provides that the consent of the
Certificateholders or the Insurer 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 evidencing not less than a majority of the Certificate
Balance (or with the consent or at the direction of the Insurer (so long as the
Insurer is the Controlling Party)), 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 (including the holder of the AO Interest) and the
Insurer (so long as no Insurer Default shall have occurred and be continuing)
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.
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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 Insurer, the Noteholders and the
Certificateholders, the accounts as provided in Section 5.01 of the Sale and
Servicing Agreement.
(b) The Trust shall possess all right, title and interest in and to all
funds on deposit from time to time in the Certificate Distribution Account and
in all proceeds thereof. Except as otherwise provided herein or in the Sale and
Servicing Agreement, the Certificate Distribution Account shall be under the
sole dominion and control of the Owner Trustee for the benefit of the
Certificateholders. If, at any time, the Certificate Distribution Account ceases
to be held as an Eligible Account, the Owner Trustee (or the Servicer on behalf
of the Owner Trustee, if the Certificate Distribution 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 as an
Eligible Account and shall transfer any cash and/or any investments to such new
Certificate Distribution Account.
SECTION 5.2 Application of Trust Funds.
(a) On each Distribution Date, the Owner Trustee, or the Paying Agent
appointed pursuant to Section 3.9 hereof, shall 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 and the Servicer Payment
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with respect to such Distribution Date; provided, however, that the Servicer has
provided such statement to the Owner Trustee.
(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, or the Paying Agent appointed pursuant to Section 3.9
hereof, 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. At the direction of the Servicer pursuant to Section 5.4(e), 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, or
the Paying Agent appointed pursuant to Section 3.9 hereof, 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, or the Paying Agent appointed pursuant to Section 3.9 hereof,
shall reasonably cooperate with such Certificateholder in making such claim so
long as such Certificateholder agrees to reimburse the Owner Trustee, or the
Paying Agent appointed pursuant to Section 3.9 hereof, 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 (i)
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 (ii) such Certificateholder is the
holder of the AO Interest, or an Affiliate thereof, or, if not, by check mailed
to such Certificateholder at the address of such holder appearing in the
Certificate Register. 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.
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SECTION 5.4 Accounting and Reports to the Certificateholders, The Internal
Revenue Service and Others. The Servicer, on behalf of the Trust, 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) cause
to be filed such tax returns relating to the Trust and cause to be made 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) 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 prepared
by or on behalf of the Servicer and in execution form, unless applicable law
requires a Certificateholder to sign such documents, in which case such
documents shall be signed by the holder of the AO Interest. To the extent one
may be required, the holder of the AO Interest shall be the "tax matters
partner" of the Trust pursuant to the Code. The Owner Trustee shall not be
liable for the contents or the preparation of any tax returns of the Trust, nor
shall the Owner Trustee be responsible for the filing of any tax return or
similar document with any tax authority.
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 to which the Trust is a party, 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
to which the Trust is a party. No implied covenants or obligations shall be read
into this Agreement on the part of the Owner Trustee.
The Owner Trustee is authorized from time to time to take such action as
the Servicer directs in writing with respect to the Basic Documents and shall,
upon the written direction of the Servicer, execute and deliver any amendments
to this Agreement or any of the Basic Documents.
(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
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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.
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SECTION 6.3 Acceptance of Trusts and Duties. Except as otherwise provided
in this Article VI, in accepting the trusts hereby created, Chase Manhattan Bank
Delaware 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;
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(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 or to any Certificateholder,
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 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 the
Servicer or any of the Certificateholders, unless such Servicer or
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 with the consent of the Insurer (if
the Insurer is the Controlling Party).
(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
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give notice (in such form as shall be appropriate under the circumstances) to
the Certificateholders and the Insurer 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 the Noteholders, promptly upon receipt of a
written request therefor, copies of the Purchase Agreement, the Sale and
Servicing Agreement 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 and the Insurer, that:
(a) It is a Delaware banking corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with its principal
place of business in the State of Delaware.
(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
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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; provided that such opinion or advice is, at
the time and under the circumstances, not clearly contrary to this Agreement or
any other 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.
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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. If the Seller shall fail to compensate the Owner
Trustee, the Servicer shall pay to the Owner Trustee such compensation. 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, removal 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 and the Insurer, provided that such resignation shall not become
effective until a successor Owner Trustee has been appointed. The Servicer (with
the consent of the Insurer (so long as the Insurer is the Controlling Party))
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 (with the consent
of the Insurer (so long as the Insurer is the Controlling Party)) 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.
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(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 and the
Insurer 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,
the Insurer and the Rating Agencies .
SECTION 6.11 Merger or Consolidation of Owner Trustee. Any entity into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any entity
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 entity 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 Insurer and 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 and reasonably acceptable to the Insurer (so long
as the Insurer is the Controlling Party) 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,
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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
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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 senior unsecured long-term debt rating of at least
"BBB" by Standard & Poor's and have a senior unsecured long-term 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, the Insurer and the Certificateholders from time to time to participate
in the transactions contemplated hereby, and each of the Owner Trustee, the
holder of the AO Interest and the Seller agree that the Indenture Trustee (so
long as the Indenture shall not have been terminated in accordance with its
terms), the Insurer 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, the Insurer 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 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 CITSF
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.
The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder, including the holder of the AO Interest, shall not (x)
operate to terminate this Agreement or the Trust, nor (y) entitle such
Certificateholder's legal representatives or heirs to claim
-24-
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 the
holder of the AO Interest 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 CITSF 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
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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 the holder of the AO Interest and
distributed by the Owner Trustee to the holder of the AO Interest.
(e) Upon the winding up of the Trust and its termination and the written
direction of the Seller, the Owner Trustee shall cause the Certificate of Trust
to be canceled by filing a certificate of cancellation with the Secretary of
State of the State of Delaware 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
with the consent of the Insurer (so long as the Insurer is the Controlling
Party) and without the consent of any of the Noteholders or the
Certificateholders (but with prior written notice to each of the Rating Agencies
and the Indenture Trustee 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 holder of the AO Interest, 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 the Insurer (so long as the Insurer is the
Controlling Party), Noteholders whose Notes evidence not less than a majority of
the aggregate outstanding principal 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
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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 increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
distributions that shall be required to be made on any Note or Certificate, the
Pass Through Rate or any Interest Rate; provided that unless an Insurer Default
has occurred and is continuing, such action shall not materially adversely
affect the interest of the Insurer. The Seller shall furnish notice to each of
the Rating Agencies and the Indenture Trustee 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 Seller shall furnish written notification of
the substance of such amendment or consent to each Certificateholder, the
Insurer 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 of the State of Delaware.
(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
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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 as expressly provided
herein, the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Seller, the Certificateholders, the Servicer, the Insurer 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, Xxx Xxxxxx 00000, (b) in the case of the
Servicer, at the following address: 000 XXX Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 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 Ratings
Service, to Standard & Poor's Ratings Service, 00 Xxxxxxxx (00xx Xxxxx), Xxx
Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Surveillance Department, (g) in
the case of the Insurer, to MBIA Insurance Corporation, 000 Xxxx Xxxxxx, Xxxxxx,
Xxx Xxxx 00000, Attention Insured Portfolio Management, Structured Finance, 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.
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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, the Insurer 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), the
Owner Trustee, each Certificateholder, 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 or the Trust,
acquiesce, petition or otherwise invoke or cause the Seller or the Trust to
invoke the process of any court or governmental authority for the purpose of
commencing or sustaining a case against the Seller or the Trust 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, the Trust or any substantial part of their property, or ordering
the winding-up or liquidation of the affairs of the Seller or the Trust.
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 holder of the AO Interest, 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) a non-United States person as defined
in ss. 7701(a) of the Code, (ii) an employee benefit plan (as defined in Section
3(3) of ERISA) that is subject to the provisions of Title I of ERISA, (iii) a
plan described in Section 4975(e)(1) of the Code or (iv) any entity whose
underlying assets include plan assets by reason of a plan's investment in the
entity (each, a "Benefit Plan"). No transfer of a Certificate may be made unless
the Certificate Registrar shall have received from the prospective transferee of
such Certificate a representation letter
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substantially in the form of Exhibit C, that such transferee is 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.
SECTION 9.13 Third Party Beneficiary. The Insurer and the Indenture
Trustee are express third party beneficiaries of this Agreement entitled to
enforce any rights reserved to it and to rely on any representations and
warranties hereunder to the same extent as if it were a party to this Agreement.
Nothing in this Section 9.13 shall be construed as creating any fiduciary
obligations on the part of the Owner Trustee to the Insurer or any other Person
except the Certificateholders.
SECTION 9.14 No Duty to Monitor. The Owner Trustee shall have no duty, and
shall not be obligated, to monitor or supervise the Servicer or any other Person
to the extent that the Servicer or such other Person has agreed to perform the
duties of the Owner Trustee hereunder or under any Basic Document.
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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
CHASE MANHATTAN BANK DELAWARE
as Owner Trustee
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Trust Officer
THE CIT GROUP SECURITIZATION
CORPORATION II
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Accepted and Agreed
with respect to the
provisions relating
to the intended holder
of the AO Interest:
THE CIT GP CORPORATION III
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
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EXHIBIT A
FORM OF TRUST CERTIFICATE
NUMBER ______ ORIGINAL CERTIFICATE BALANCE $_________________
CUSIP NO. 125590 AE 9 FRACTIONAL UNDIVIDED INTEREST: ___%
SEE REVERSE FOR CERTAIN DEFINITIONS
NO INTEREST IN THIS CERTIFICATE MAY BE ACQUIRED BY OR FOR THE ACCOUNT OF
(i) A NON-UNITED STATES PERSON, AS DEFINED IN SECTION 7701(A) OF THE CODE, (ii)
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, (iii) 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 (iv) ANY ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN
THE ENTITY.
X-0
XXX XXXXXX XXXXX 0000-X
6.20% ASSET-BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of marine installment sale contracts and
direct loans secured by new and used boats and sold to the Trust by The CIT
Group Securitization Corporation 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.)
THIS CERTIFIES THAT ____________________ is the registered owner of a
nonassessable, fully-paid, fractional undivided interest in CIT Marine Trust
1999-A (the "Trust") formed by The CIT Group Securitization Corporation II, a
Delaware corporation (the "Seller"), represented by the Original Certificate
Balance specified above.
The Trust was created pursuant to a Trust Agreement, dated as of
February 1, 1999 (as amended and supplemented from time to time, the "Trust
Agreement"), between the Seller and Chase Manhattan Bank Delaware, 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 6.20% 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 marine installment sale contracts and direct loans
(the "Contracts") secured by the new and used boats financed thereby (the
"Financed Boats"), certain monies received under the Contracts on and after
February 1, 1999 (the "Cut-off Date"), security interests in the Financed Boats,
the Collection Account, the Note Distribution Account, the Certificate
Distribution Account and the Reserve Account, in each case together with the
proceeds thereof, the proceeds from claims under certain insurance policies in
respect of individual 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 March 15, 1999 (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 as set forth
above in the amount of interest and principal to be distributed to
Certificateholders on such Distribution Date. Interest in respect of a
Distribution Date will accrue at the Pass-Through Rate shown above during the
related Interest Accrual Period. On each Distribution Date accrued interest at
the Pass-Through Rate on the outstanding Certificate Balance of this Certificate
shall be distributed, to the extent of the Available Amount remaining after
payment of the Servicer Payment, accrued and unpaid fees of the Insurer and
interest due on the Notes on such
A-2
Distribution Date. To the extent the remaining Available Amount on a
Distribution Date is insufficient to pay Certificateholders the entire amount of
interest due on such Distribution Date, such shortfall will be funded, first,
from the Reserve Account, subject to the Available Reserve Amount remaining
after any withdrawal from the Reserve Account to make payments of interest and
principal due on the Notes on such Distribution Date, as more specifically set
forth in the Sale and Servicing Agreement and, second, by the Insurer pursuant
to the Certificate Insurance Policy. Interest on this Certificate for any
Distribution Date due but not paid on such Distribution Date will be due on the
next Distribution Date in addition to an amount equal to interest on such amount
at the Pass-Through Rate (to the extent lawful). Interest on this Certificate
will be calculated on the basis of a 360-day year consisting of twelve 30-day
months. The "Record Date," with respect to any Distribution Date, means the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
On each Distribution Date principal of this Certificate will be
payable, subject to the remaining Available Amount and the remaining Available
Reserve Amount, in an amount equal to the Certificate Primary Principal
Distribution Amount with respect to such Distribution Date and, on and after the
payment in full of the Notes, the Certificate Additional Principal Distribution
Amount. The Certificate Primary Principal Distribution Amount will be funded on
each Distribution Date to the extent of the Available Amount remaining after
payment of the Servicer Payment, accrued and unpaid fees of the Insurer,
interest due on the Notes on such Distribution Date, interest due on the
Certificates on such Distribution Date and the Note Primary Principal
Distribution Amount. The Certificate Additional Principal Distribution Amount
will be funded on each Distribution Date to the extent of the Available Amount
remaining after payment of the Certificate Primary Principal Distribution Amount
(and all other amounts payable prior to the payment of such Certificate Primary
Distribution Amount in accordance with the foregoing sentence) and after payment
of the Reimbursement Obligations to the Insurer, interest on the Loan, the
Servicing Fee if CITSF or one of its affiliates is the Servicer, the Additional
Required Reserve Amount and the Note Additional Principal Distribution Amount.
Payments of the Certificate Additional Principal Distribution Amount will only
be made after the Notes have been paid in full.
In the event that on a Distribution Date (after giving effect to the
distribution of the Note Primary Principal Distribution Amount and the Note
Additional Principal Distribution Amount to the Noteholders and the Certificate
Principal Distribution Amount and the Certificate Additional Principal
Distribution Amount to the Certificateholders) a Collateralization Shortfall
exists, such Collateralization Shortfall will be paid to the Notes so long as
any Note is outstanding and then to the Certificates on or after the
Distribution Date that the Notes are paid in full, first, from amounts, if any,
available in the Reserve Account (after payment of the Note Interest
Distribution Amount and the Certificate Interest Distribution Amount) and,
second, from amounts paid by the Insurer pursuant to the Certificate Insurance
Policy.
In the event that on the Certificate Final Scheduled Distribution Date
the Available Amount, including the Available Reserve Amount, remaining for
payment of the principal of this Certificate is insufficient to pay the
Certificate Balance, such shortfall will be paid by the Insurer pursuant to the
Certificate Insurance Policy.
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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, to the extent of the remaining Available Amount and the remaining
Available Reserve Amount, 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, by its acceptance of a Certificate, covenants
and agrees that such Certificateholder 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 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
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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 1999-A
By: CHASE MANHATTAN BANK DELAWARE,
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: CHASE MANHATTAN BANK By: CHASE MANHATTAN BANK,
DELAWARE, not in its individual capacity
but solely as authenticating agent
not in its individual capacity
but solely as Owner Trustee
By __________________________ By __________________________
Name: Name:
Title: Title:
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REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an interest in, the
Seller, the Servicer, The CIT Group, Inc., the holder of the AO Interest, the
Indenture Trustee, the Owner Trustee 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 in any manner of the rights of the
Certificateholders under the Trust Agreement at any time by the Seller and the
Owner Trustee with the consent of the Insurer (so long as the Insurer is the
Controlling Party), Noteholders whose Notes evidence not less than a majority of
the aggregate outstanding principal 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 Chase Manhattan Bank Delaware.
Neither this Certificate nor any beneficial interest herein may be
directly or indirectly assigned, sold, pledged, hypothecated or otherwise
transferred except upon satisfaction of the conditions set forth in Section 9.11
of the Trust Agreement pursuant to which this Certificate was issued. Any
attempted transfer in violation of such restrictions shall be null and void and
shall vest no rights in any purported transferee, and shall subject the Holder
hereof to liability for any tax imposed (and related expenses, if any) with
respect to such attempted transfer.
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The Certificates are issuable only as registered Certificates without
coupons in denominations of $20,000 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 such that the holder of the AO
Interest may own at least 1% of the Certificate Balance (as described in the
Trust Agreement). 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 $20,000. 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 as of which
the Pool Balance as of the last day of the related Due Period is 10% or less of
the Initial Pool Balance. In addition, following the first Distribution Date as
of which the Pool Balance as of the last day of the related Due Period is 5% or
less of the Initial Pool Balance an auction sale of the remaining Contracts may
be conducted (in each case, as described in the Sale and Servicing Agreement)
and such auction may effect early retirement of the Certificates.
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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 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.
A-8
STATEMENT OF INSURANCE
MBIA Insurance Corporation (the "Insurer") has issued a Financial Guaranty
Insurance Policy (the "Certificate Insurance Policy") containing the following
provisions, such policy being on file at CIT Marine Trust 1999-A, care of Chase
Manhattan Bank Delaware, as owner trustee (the "Owner Trustee"), Wilmington,
Delaware.
The Insurer, in consideration of the payment of the premium and subject to
the terms of the Certificate Insurance Policy, thereby unconditionally and
irrevocably guarantees to pay to the Trust in respect of (i) each Distribution
Date (other than the Certificate Final Scheduled Distribution Date), an amount
equal to the amount by which the Certificate Interest Distribution Amount
exceeds that portion of the Available Amount allocated to pay such amounts as
provided in the Sale and Servicing Agreement (as defined below) after giving
effect to amounts available therefor from the Reserve Account, (ii) each
Distribution Date on and after the payment in full of the Notes (other than the
Certificate Final Scheduled Distribution Date), an amount equal to the
Collateralization Shortfall after giving effect to amounts available therefor
from the Reserve Account and (iii) on the Certificate Final Scheduled
Distribution Date, an amount equal to the excess of the Certificate Balance over
that portion of the Available Amount allocated to pay such amounts as provided
in the Sale and Servicing Agreement after giving effect to amounts available
therefor from the Reserve Account (such amounts, collectively, as of any
Distribution Date, the "Certificate Policy Claim Amount"). The Insurer also
agrees to pay an amount equal to any Avoided Payment (as defined below). Each
payment pursuant to the Certificate Insurance Policy will be received by the
Trust, on behalf of the Certificateholders, for distribution by the Owner
Trustee to each Certificateholder of each Certificateholder's proportionate
share of the Certificate Policy Claim Amount. The Insurer's obligations under
the Certificate Insurance Policy shall be discharged to the extent funds equal
to the applicable Certificate Policy Claim Amount are received by the Trust,
whether or not such funds are properly applied by the Trust. The Certificate
Insurance Policy does not guarantee payments of principal on the Certificates
other than as a result of a Collateralization Shortfall or with respect to the
Certificate Balance on the Certificate Final Scheduled Distribution Date, and
will not guarantee payment of any amounts that become due on an accelerated
basis as a result of (a) a default by the Trust, (b) the occurrence of an Event
of Default under (and as defined in) the Indenture, or (c) any other cause. The
Insurer may elect, in its sole discretion, to pay all or a portion of any
shortfalls in the amount of such Available Amount to make distributions of
principal on the Certificates, other than distributions of principal with
respect to a Collateralization Shortfall or on the Certificate Final Scheduled
Distribution Date, which is guaranteed by the Insurer.
Notwithstanding the foregoing paragraph, the Certificate Insurance Policy
does not cover shortfalls, if any, attributable to the liability of the Trust
for withholding taxes, if any (including interest and penalties in respect of
any such liability).
Payment of amounts under the Certificate Insurance Policy shall be made in
immediately available funds on the later of (a) 3 p.m., New York City time, on
the related
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Distribution Date and (b) 3 p.m., New York City time, on the third Business Day
following presentation to State Street Bank and Trust Company, N.A., as Fiscal
Agent for the Insurer or any successor fiscal agent appointed by the Insurer
(the "Fiscal Agent") of a notice for payment (a "Notice for Payment"),
appropriately completed and executed by the Trust. A Notice for Payment under
the Certificate Insurance Policy may be presented to the Fiscal Agent on any
Business Day following the Determination Date in respect of which the Notice for
Payment is being presented, but in any event, not later than the third Business
Day prior to the applicable Distribution Date, in accordance with the
Certificate Insurance Policy. Any Notice for Payment received by the Fiscal
Agent after 3 p.m., New York City time, on a Business Day, or on any day that is
not a Business Day, will be deemed to be received by the Fiscal Agent on the
next succeeding Business Day.
Subject to the foregoing, if the payment of any amount guaranteed by the
Certificate Insurance Policy and previously distributed to a Certificateholder
in respect of the Certificates that is recoverable and sought to be recovered as
a voidable preference in an Insolvency Proceeding in accordance with a
nonappealable order of a court having competent jurisdiction is voided ("Avoided
Payment"), the Insurer will make such Avoided Payment on behalf of the
Certificateholder upon receipt by the Fiscal Agent from the Trust on behalf of
such Certificateholder of (i) a certified copy of a final, nonappealable order
of a court having competent jurisdiction to the effect that the
Certificateholder is required to return any such payment or portion thereof
prior to the Termination Date of the Certificate Insurance Policy because such
payment was voided under applicable law (the "Order") together with a
certificate of such Certificateholder that such Order is final and not subject
to appeal, (ii) an assignment properly completed and executed by such
Certificateholder irrevocably assigning to the Insurer all rights and claims of
such Certificateholder relating to or arising under such Avoided Payment, (iii)
a Notice for Payment appropriately completed and executed by the Trust and (iv)
appropriate instruments to effect the appointment of the Insurer as agent for
such Certificateholder in any legal proceeding relating to such Avoided Payment.
The Insurer shall make payments due in respect of Avoided Payments no
later than 3 p.m., New York City time, on the Business Day which is no earlier
than (a) the third Business Day following receipt by the Fiscal Agent of the
documents required under clauses (i) through (iv) of the preceding paragraph and
(b) the date that such documents are received by the Fiscal Agent, if at least
three Business Days prior to such receipt, the Fiscal Agent shall have received
written notice from the Trust that such documents were to be delivered on such
date and such date was specified in such notice. Any such documents received by
the Fiscal Agent after 3 p.m., New York City time, on any Business Day or on any
day that is not a Business Day shall be deemed to have been received by the
Fiscal Agent prior to 3 p.m. on the next succeeding Business Day. All payments
made by the Insurer under the Certificate Insurance Policy on account of any
Avoided Payment shall be made to the receiver or the trustee in bankruptcy named
in the Order on behalf of the Certificateholder and not to the Trust or any
Certificateholder directly unless such Certificateholder has returned such
Avoided Payment to such receiver or trustee in bankruptcy, in which case such
payment will be disbursed to the Trust on behalf of such Certificateholder upon
proof of such payment reasonably satisfactory to the Insurer.
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The Fiscal Agent is the agent of the Insurer only and the Fiscal Agent
shall in no event be liable to Certificateholders for any acts of the Fiscal
Agent or any failure of the Insurer to deposit or cause to be deposited,
sufficient funds to make payments due under the Certificate Insurance Policy.
The obligations of the Insurer under the Certificate Insurance Policy are
irrevocable, primary, absolute and unconditional (except as expressly provided
therein) and neither the failure of the Trust, the Owner Trustee, CIT, the
Seller, the Servicer or any other person to perform any covenant or obligation
in favor of the Insurer (or otherwise), nor the failure or omission to make a
demand permitted under the Certificate Insurance Policy nor the commencement of
any bankruptcy, debtor or other insolvency proceeding by or against the Trust,
the Owner Trustee, CIT, the Seller, the Servicer or any other person shall in
any way affect or limit the Insurer's obligations under the Certificate
Insurance Policy.
The Certificate Insurance Policy and the obligations of the Insurer
thereunder shall terminate on the date (the "Termination Date") that is the
earliest to occur of (a) ninety-one days following the earlier of (i) the latest
Final Scheduled Distribution Date and (ii) the date on which all amounts
required to be paid to the Certificateholders have been paid in full, provided,
that, if any Insolvency Proceeding is existing by or against the Trust, the
Seller, the Servicer or CIT during such ninety-one day period, then the
Certificate Insurance Policy and the Insurer's obligations under the Certificate
Insurance Policy shall terminate on the date of the conclusion or dismissal of
such Insolvency Proceeding without continuing jurisdiction by the court in such
Insolvency Proceeding, provided, further that, and notwithstanding anything to
the contrary in the Certificate Insurance Policy, the Certificate Insurance
Policy shall not terminate prior to the date on which the Insurer has made all
payments required to be made under the terms of the Certificate Insurance Policy
in respect of Avoided Payments; and (b) the Business Day following the date that
the Insurer receives written notice from the Servicer terminating the
Certificate Insurance Policy as a result of a downgrade of the Insurer's claims
paying ability rating by any Rating Agency which results in a downgrading of the
Certificates; provided, however, that no termination shall be effective until
(x) all amounts owed to the Insurer under the Insurance Agreement on the date
such written notice is received by the Insurer are paid in full in cash and (y)
the original Certificate Insurance Policy is received by the Insurer.
As used herein, the following terms shall have the following meanings:
"Business Day" means any day other than a Saturday, Sunday or any day on
which banking institutions, insurance companies or trust companies in the states
of New York, Illinois, Delaware or Oklahoma are authorized or required by law or
executive order to be closed.
"Certificateholder" means each holder of a Certificate who, on the
applicable Distribution Date, is entitled under the terms of the related
Certificate to receive payments under the Certificate Insurance Policy.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
dated as of February 1, 1999 among the Company, the Servicer, CIT Marine Trust
1996-A and the Issuer without regard to any amendment or supplement thereto.
A-11
Capitalized terms used herein and not otherwise defined herein shall have
the respective meanings set forth in the Sale and Servicing Agreement as of the
date of execution of the Certificate Insurance Policy, without giving effect to
any subsequent amendment or modification to the Sale and Servicing Agreement
unless such amendment or modification has been approved in writing by the
Insurer.
Any notice under the Certificate Insurance Policy or service of process on
the Fiscal Agent of the Insurer may be made at the address listed below for the
Fiscal Agent of the Insurer or such other address as the Insurer shall specify
in writing to the Trustee.
The notice address of the Fiscal Agent is 00 Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Municipal Registrar and Paying Agency, or such
other address as the Fiscal Agent shall specify to the Owner Trustee in writing.
The Certificate Insurance Policy is being issued under and pursuant to,
and shall be construed under, the laws of the State of New York, without giving
regard to the conflict of laws principles thereof.
The insurance provided by the Certificate Insurance Policy is not covered
by the property/casualty insurance security fund specified in Article 76 of the
New York Insurance Law.
MBIA INSURANCE CORPORATION
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EXHIBIT B
CERTIFICATE OF TRUST
OF
CIT MARINE TRUST 1999-A
THIS Certificate of Trust of CIT MARINE TRUST 1999-A (the "Trust") is
being duly executed and filed on behalf of the Trust by the undersigned, as
trustee, to form a business trust under the Delaware Business Trust Act (12 Del.
C. ss. 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this Certificate of
Trust is CIT MARINE TRUST 1999-A.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is Chase Manhattan Bank Delaware, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trustee Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
CHASE MANHATTAN BANK
DELAWARE, not in its
individual capacity, but
solely as Owner Trustee under
a Trust Agreement dated as of
February 1, 1999
By: /s/ Xxxxx Xxxxx
--------------------------
Name: Xxxxx Xxxxx
Title: Trust Officer
X-0
XXXXXXX X
XXX XXXXXX XXXXX 0000-X
CERTIFICATE TRANSFEREE LETTER
February __, 1999
CIT Marine Trust 0000-X
x/x Xxxxx Xxxxxxxxx Bank Delaware,
as Owner Trustee
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Administration
Chase Manhattan Bank,
as Certificate Registrar
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
In connection with our proposed purchase of the _________ 6.20%
Asset-Backed Certificates (the "Certificates") of CIT Marine Trust 1999-A (the
"Issuer"), a trust formed by The CIT Group Securitization Corporation II (the
"Seller"), we confirm that:
1. We are not, and each account (if any) for which we are purchasing the
Certificates is not, (A) 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 Title I of ERISA, (B) a plan described in Section 4975(e)(1) of
the Internal Revenue Code of 1986, as amended (the "Code"), that is subject to
Section 4975 of the Code, (C) a governmental plan, as defined in Section 3(32)
of ERISA, subject to any federal, state or local law which is, to a material
extent, similar to the provisions of Section 406 of ERISA or Section 4975 of the
Code, (D) an entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (within the meaning of Department of Labor
Regulation 29 C.F.R. ss. 2510.3-101 or otherwise under ERISA) or (E) a person
investing "plan assets" of any such plan (including without limitation, for
purposes of this clause (E), an insurance company general account, but excluding
any entity registered under the Investment Company Act of 1940, as amended).
2. We are, and each account (if any) for which we are purchasing the
Certificates is, a person who is (A) a citizen or resident of the United States,
(B) a corporation or partnership organized in or under the laws of the United
States or any political subdivision thereof, (C) an estate the income of which
is includible in gross income for United States tax
C-1
purposes, regardless of its source, or (D) a trust if a U.S. court is able to
exercise primary supervision over the administration of such trust and one or
more Persons meeting the conditions of clause (A), (B) or (C) of this paragraph
2 has the authority to control all substantial decisions of the trust.
3. We understand that any purported resale, transfer, assignment,
participation, pledge or other disposal of (any such act, a "Transfer") of any
Certificate (or any interest therein) to any person who does not meet the
conditions of paragraphs 1 and 2 above shall be null and void (each, a "Void
Transfer"), and the purported transferee in a Void Transfer shall not be
recognized by the Issuer or any other person as a Certificateholder for any
purpose.
4. We agree that if we determine to Transfer any of the Certificates we
will cause our proposed transferee to provide to the Issuer and the Certificate
Registrar a letter substantially in the form of this letter.
You are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:___________________________
Name:
Title:
Securities To Be Purchased:
$__________ principal balance of Certificates
Annex A attached hereto lists the name of the account and principal balance of
Certificates purchased for each account (if any) for which we are purchasing
Certificates.
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