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AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
THE CIT GROUP SECURITIZATION CORPORATION II
SELLER
AND
THE BANK OF NEW YORK
OWNER TRUSTEE
AND
THE BANK OF NEW YORK (DELAWARE)
DELAWARE TRUSTEE
DATED AS OF MAY 1, 1999
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TABLE OF CONTENTS
Page
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......................................................3
SECTION 2.10 Representations and Warranties of the Seller........................4
SECTION 2.11 Representations and Warranties of the Holder of the AO Interest.....4
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...................................9
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.....................................................12
SECTION 4.1 Prior Notice to Certificateholders with Respect to Certain
Matters...........................................................12
SECTION 4.2 Action by Certificateholders with Respect to Certain Matters........12
SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy.............13
SECTION 4.4 Restrictions on Certificateholders' Power...........................13
SECTION 4.5 Majority Control....................................................13
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES....................................14
SECTION 5.1 Establishment of Accounts...........................................14
SECTION 5.2 Application of Trust Funds..........................................14
SECTION 5.3 Method of Payment...................................................15
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...........................16
ARTICLE VI THE OWNER TRUSTEE............................................................17
SECTION 6.1 Duties of Owner Trustee.............................................17
SECTION 6.2 Rights of Owner Trustee.............................................18
SECTION 6.3 Acceptance of Trusts and Duties.....................................18
SECTION 6.4 Action Upon Instruction by Certificateholders.......................20
SECTION 6.5 Furnishing of Documents.............................................20
SECTION 6.6 Representations and Warranties of Owner Trustee.....................20
SECTION 6.7 Reliance; Advice of Counsel.........................................21
SECTION 6.8 Owner Trustee May Own Certificates and Notes........................22
SECTION 6.9 Compensation and Indemnity..........................................22
SECTION 6.10 Replacement of Owner Trustee........................................22
SECTION 6.11 Merger or Consolidation of Owner Trustee............................23
SECTION 6.12 Appointment of Co-Trustee or Separate Trustee.......................23
SECTION 6.13 Eligibility Requirements for Owner Trustee..........................25
ARTICLE VI-A THE DELAWARE TRUSTEE.......................................................26
SECTION 6A.1 Duties of Delaware Trustee .........................................26
SECTION 6A.2 Acceptance of Trusts and Duties ....................................27
SECTION 6A.3 Action Upon Instruction by Certificateholders ......................28
SECTION 6A.4 Representations and Warranties of Delaware Trustee .................29
SECTION 6A.5 Reliance; Advice of Counsel ........................................29
SECTION 6A.6 Compensation and Indemnity .........................................30
SECTION 6A.7 Replacement of Delaware Trustee ....................................30
SECTION 6A.8 Merger or Consolidation of Delaware Trustee ........................31
SECTION 6A.9 Eligibility Requirements for Delaware Trustee ......................32
ARTICLE VII TERMINATION OF TRUST AGREEMENT..............................................33
SECTION 7.1 Termination of Trust Agreement......................................33
ARTICLE VIII AMENDMENTS................................................................35
SECTION 8.1 Amendments Without Consent of Certificateholders or Noteholders.....35
SECTION 8.2 Amendments With Consent of Certificateholders and Noteholders.......35
SECTION 8.3 Form of Amendments..................................................36
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ARTICLE IX MISCELLANEOUS.................................................................37
SECTION 9.1 No Legal Title to Owner Trust Estate................................37
SECTION 9.2 Limitations on Rights of Others.....................................37
SECTION 9.3 Notices.............................................................37
SECTION 9.4 Severability........................................................38
SECTION 9.5 Counterparts........................................................38
SECTION 9.6 Successors and Assigns..............................................38
SECTION 9.7 No Petition Covenant................................................38
SECTION 9.8 No Recourse.........................................................38
SECTION 9.9 Headings............................................................38
SECTION 9.10 Governing Law ......................................................38
SECTION 9.11 Certificate Transfer Restrictions ..................................39
SECTION 9.12 Indemnification by the Servicer ....................................39
Exhibit A 7.21% Asset-Backed Certificate
Exhibit B Certificate of Trust
Exhibit C Certificate Transferee Letter
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of May 1, 1999, among
THE CIT GROUP SECURITIZATION CORPORATION II, a Delaware corporation, as Seller,
and THE BANK OF NEW YORK, a New York banking corporation, as Owner Trustee and
THE BANK OF NEW YORK (DELAWARE), a Delaware banking corporation with its
principal place of business in the State of Delaware, as Delaware Trustee.
WHEREAS, the Seller, the Owner Trustee and the Delaware Trustee
entered into a Trust Agreement, dated as of May 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, the Owner Trustee and the Delaware 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 constitutes 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, the Owner Trustee and the
Delaware 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 RV
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
Delaware Trustee at the Corporate Trust Office or at such other address as the
Owner Trustee may designate by written notice to the Certificateholders 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 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 and the Delaware Trustee as trustees of the Trust effective as
of the date hereof, to have all the rights, powers and duties of each thereof as
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 the date hereof,
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,
which shall constitute the initial Owner Trust Estate and shall be deposited in
the Certificate Distribution Account.
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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 and the Delaware 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 or the Delaware Trustee for any such
expenses paid by the Owner Trustee or the Delaware 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.
SECTION 2.9 Situs of Trust. The Trust shall be located in the State of
Delaware.
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SECTION 2.10 Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Owner Trustee and the Delaware Trustee, as
of the Closing Date, that:
(a) The Seller has been organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority to own its properties and conduct its business as such properties
are presently owned and such business is presently conducted and had at all
relevant times, and now has, power, authority and legal right to acquire and own
the Contracts.
(b) The Seller is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualifications.
(c) The Seller has the power and authority to execute and deliver this
Agreement and to carry out its terms, the Seller has full power and authority to
sell and assign the property to be sold and assigned to and deposited with, as
part of, the Trust and the Seller has duly authorized such sale and assignment
to the Trust by all necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the Seller by all
necessary corporate action.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms of this Agreement do not conflict
with, result in any breach of any of the terms and provisions of or constitute
(with or without notice or lapse of time) a default under its certificate of
incorporation or by-laws of the Seller, or any indenture, agreement or other
instrument to which the Seller is a party or by which it is bound, or result in
the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other than
pursuant to or as contemplated by the Basic Documents), or violate any law or,
to the best of its knowledge, any order, rule or regulation applicable to the
Seller of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the Seller
or any of its properties.
SECTION 2.11 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 and the Delaware 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 to 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.
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(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 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
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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 7.21% 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 The Bank of New York. Such authentication shall constitute
conclusive evidence that such Certificate shall have been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
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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. The Bank of New
York shall be the initial Certificate Registrar. Upon any resignation of a
Certificate Registrar, the Owner Trustee shall promptly appoint a successor or,
if it elects not to make such an appointment, assume the duties of Certificate
Registrar.
(b) Upon surrender for registration or transfer of any Certificate at
the office or agency maintained pursuant to Section 3.8, the Owner Trustee shall
execute on behalf of the Trust, authenticate and deliver (or shall cause its
authenticating agent to authenticate and deliver), in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate amount dated the date of authentication by the
Owner Trustee or any authenticating agent.
(c) At the option of a Holder of Certificates, Certificates may be
exchanged for other Certificates of authorized denominations of a like aggregate
principal amount upon surrender of the Certificates to be exchanged at the
Corporate Trust Office maintained pursuant to Section 3.8. Whenever any
Certificates are so surrendered for exchange, the Owner Trustee shall execute on
behalf of the Trust, authenticate and deliver (or shall cause its authenticating
agent to authenticate and deliver) one or more Certificates dated the date of
authentication by the Owner Trustee or any authenticating agent. Such
Certificates shall be delivered to the Holder making the exchange.
(d) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Holder or his attorney duly authorized in writing with such
signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Certificate Registrar, which requirements include membership
or participation in the Securities Transfer Agent's Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Certificate Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Exchange Act. Each Certificate surrendered for registration
of transfer or exchange shall be canceled and subsequently destroyed by the
Owner Trustee or Certificate Registrar in accordance with its customary
practice.
(e) No service charge shall be made for any registration of transfer
or exchange of Certificates, but the Owner Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Certificates.
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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.
(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
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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 and the holder of the AO Interest, within 15 days after receipt by the
Owner Trustee of a request therefor from the Servicer, 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,
the Delaware Trustee 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 The Bank of New
York, Asset Backed Securities, 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx
00000, Tel. (000) 000-0000, Fax (000) 000-0000 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 perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be The Bank of New York, 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 The Bank of New York 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
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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.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not take action with respect to the following
matters, unless (i) the Owner Trustee shall have notified the Certificateholders
in writing of the proposed action at least 30 days before the taking of such
action, and (ii) the Certificateholders shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust
(except claims or 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);
(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 is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholders;
(e) the amendment, change or modification of the Sale and Servicing
Agreement, except to cure any ambiguity or defect or to amend or supplement any
provision in a manner that would not materially adversely affect the interests
of the Certificateholders or in circumstances in which the Sale and Servicing
Agreement expressly provides that the consent of the Certificateholders is not
required; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement of a
successor Certificate Registrar, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable.
SECTION 4.2 Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the written
direction of the Certificateholders evidencing not less than a majority of the
Certificate Balance, 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
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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
delivery to the Owner Trustee by each such Certificateholder of a certificate
certifying that such Certificateholder reasonably believes that the Trust is
insolvent.
SECTION 4.4 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the Basic
Documents or would be contrary to Section 2.3, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
SECTION 4.5 Majority Control. Except as expressly provided herein, any
action that may be taken or consent that may be given or withheld by the
Certificateholders under this Agreement may be taken, given or withheld by the
Holders of Certificates evidencing not less than a majority of the Certificate
Balance. Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by Holders of Certificates evidencing not less than a majority of the
Certificate Balance at the time of the delivery of such notice.
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Accounts.
(a) On or prior to the Closing Date, the Trust shall cause the
Servicer to establish and maintain, in the name of the Indenture Trustee or the
Owner Trustee, as appropriate, for the benefit of the Noteholders and
Certificateholders 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 with respect
to such Distribution Date.
(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
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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 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.
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.
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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.
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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 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 specifically required to be
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.
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(e) Subject to Sections 5.1 and 5.2, monies received by the Owner
Trustee hereunder need not be segregated in any manner except to the extent
required by law or the Sale and Servicing Agreement and may be deposited under
such general conditions as may be prescribed by law, and the Owner Trustee shall
not be liable for any interest thereon.
(f) The Owner Trustee shall not take any action that (i) is
inconsistent with the purposes of the Trust set forth in Section 2.3 or (ii)
would, to the actual knowledge of a Responsible Officer of the Owner Trustee,
result in the Trust's becoming taxable as a corporation for federal income tax
purposes. The Certificateholders shall not direct the Owner Trustee to take
action that would violate the provisions of this Section 6.1 and any such
direction shall be null and void.
SECTION 6.2 Rights of Owner Trustee. The Owner Trustee is authorized
and directed to execute and deliver the Basic Documents and each certificate or
other document attached as an exhibit to or contemplated by the Basic Documents
to which the Trust is to be a party, in such form as the Seller shall approve as
evidenced conclusively by the Owner Trustee's execution thereof. In addition to
the foregoing, the Owner Trustee is authorized, but shall not be obligated, to
take all actions required of the Trust pursuant to the Basic Documents. The
Owner Trustee is further authorized from time to time to take such action as the
Servicer recommends with respect to the Basic Documents.
SECTION 6.3 Acceptance of Trusts and Duties. Except as otherwise
provided in this Article VI, in accepting the trusts hereby created The Bank of
New York 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 or expressly made elsewhere
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 Vehicle 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 Vehicle; 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
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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 the instructions of the requisite number of Certificateholders
pursuant hereto;
(c) no provision of this Agreement or any Basic Document shall require
the Owner Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder or under
any Basic Document, if the Owner Trustee shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes or the Certificate Balance of and
interest on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of
and makes no representation as to the validity or sufficiency of any provision
of this Agreement or for the due execution hereof by the Seller or for the form,
character, genuineness, sufficiency, value or validity of any of the Owner Trust
Estate or for or in respect of the validity or sufficiency of the Basic
Documents, the Notes, the Certificates (other than the certificate of
authentication on the Certificates) or of any Contracts or any related
documents, and the Owner Trustee shall in no event assume or incur any
liability, duty or obligation to any Noteholder 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
Certificateholder has 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.
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SECTION 6.4 Action Upon Instruction by Certificateholders.
(a) Subject to Section 4.4, the Certificateholders may by written
instruction direct the Owner Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any Basic Document if the Owner
Trustee shall have reasonably determined, or shall have been advised by counsel,
that such action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms hereof or of any Basic Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
Basic Document, or is unsure as to the application, intent, interpretation or
meaning of any provision of this Agreement or the Basic Documents, the Owner
Trustee shall promptly give notice (in such form as shall be appropriate under
the circumstances) to the Certificateholders requesting instruction as to the
course of action to be adopted, and, to the extent the Owner Trustee acts in
good faith in accordance with any such instruction received, the Owner Trustee
shall not be liable on account of such action to any Person. If the Owner
Trustee shall not have received appropriate instructions within ten days of such
notice (or within such shorter period of time as reasonably may be specified in
such notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action which is consistent,
in its view, with this Agreement or the Basic Documents, and as it shall deem to
be in the best interests of the Certificateholders, and the Owner Trustee shall
have no liability to any Person for any such action or inaction.
SECTION 6.5 Furnishing of Documents. The Owner Trustee shall furnish
(a) to the Certificateholders, promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents and (b) to 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, that:
(a) It is a New York banking corporation duly organized, validly
existing and in good standing under the laws of the State of New York with its
principal place of business in the State of New York.
(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
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Owner Trustee or any order, writ, judgment or decree of any court, arbitrator or
governmental authority applicable to the Owner Trustee or any of its assets,
(ii) shall not violate any provision of the corporate charter or by-laws of the
Owner Trustee, or (iii) shall not violate any provision of, or constitute, with
or without notice or lapse of time, a default under, or result in the creation
or imposition of any lien on any properties included in the Trust pursuant to
the provisions of any mortgage,
indenture, contract, agreement or other undertaking to which it is a party,
which violation, default or lien could reasonably be expected to have a
materially adverse effect on the Owner Trustee's performance or ability to
perform its duties as Owner Trustee under this Agreement or on the transactions
contemplated in this Agreement.
(d) The execution, delivery and performance by the Owner Trustee of
this Agreement shall not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency regulating the
banking and corporate trust activities of banks or trust companies in the
jurisdiction in which the Trust was formed.
(e) This Agreement has been duly executed and delivered by the Owner
Trustee and constitutes the legal, valid and binding agreement of the Owner
Trustee, enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
SECTION 6.7 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper reasonably
believed by it to be genuine and reasonably 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
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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.
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, provided that such resignation shall not become effective until a
successor Owner Trustee has been appointed. The Servicer may appoint a successor
Owner Trustee by delivering a written instrument pursuant to Section 6.10(b). If
no successor Owner Trustee shall have been appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee. The Servicer shall remove the Owner
Trustee if:
(i) the Owner Trustee shall cease to be eligible in accordance with
the provisions of Section 6.13 and shall fail to resign after written
request therefor by the Servicer;
(ii) the Owner Trustee shall be adjudged bankrupt or insolvent;
(iii) a receiver or other public officer shall be appointed or take
charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation; or
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(iv) the Owner Trustee shall otherwise be incapable of acting.
(b) If the Owner Trustee resigns or is removed or if a vacancy exists
in the office of Owner Trustee for any reason the Servicer shall promptly
appoint a successor Owner Trustee by written instrument, in duplicate (one copy
of which instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee) and shall pay all fees owed to the
outgoing Owner Trustee.
(c) Any resignation or removal of the Owner Trustee and appointment of
a successor Owner Trustee pursuant to any of the provisions of this Section 6.10
shall not become effective until a written acceptance of appointment is
delivered by the successor Owner Trustee to the outgoing Owner Trustee and the
Servicer and all fees and expenses due to the outgoing Owner Trustee are paid.
Any successor Owner Trustee appointed pursuant to this Section 6.10 shall be
eligible to act in such capacity in accordance with Section 6.13 and, following
compliance with the preceding sentence, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor under this Agreement,
with like effect as if originally named as Owner Trustee. The Servicer shall
provide notice of such resignation or removal of the Owner Trustee to each of
the Rating Agencies.
(d) The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Agreement. The Servicer and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and obligations.
(e) Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section 6.10, the Servicer shall mail notice of the successor
of such Owner Trustee to all Certificateholders, the Indenture Trustee, the
Noteholders and the Rating Agencies.
SECTION 6.11 Merger or Consolidation of Owner Trustee. Any 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 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 Vehicle may at the time
be located, the Servicer and the Owner Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Owner Trustee to act as co-trustee, jointly with the
Owner Trustee, or as separate trustee or trustees, of all or any part of the
Owner Trust Estate, and to vest in such
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Person, in such capacity, such title to the Trust, or any part thereof, and,
subject to the other provisions of this Section 6.12, such powers, duties,
obligations, rights and trusts as the Servicer and the Owner Trustee may
consider necessary or desirable. If the Servicer shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, the
Owner Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 6.13 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 6.10.
(b) Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
jointly by the Owner Trustee and such separate trustee or co-trustee (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Servicer and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time appoint the
Owner Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
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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 $40,000,000 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 Xxxxx'x; provided, however, that if the Owner
Trustee does not meet the requirements of clause (b), the Owner Trustee may
provide a guaranty from its parent (which meets the requirements of clause (b)),
acceptable to the Servicer, of its liabilities and obligations under the Basic
Documents. 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 the Delaware Trustee appointed pursuant
hereto shall be a person that satisfies the provisions of Section 3807(a) of the
Business Trust Statute.
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ARTICLE VI-A
THE DELAWARE TRUSTEE
SECTION 6A.1 Duties of Delaware Trustee
(a) The Delaware Trustee shall be a trustee for the sole and limited
purpose of fulfilling the requirements of ss. 3807 of the Business Trust
Statute. The Delaware Trustee shall have the power and authority to execute,
deliver, acknowledge and file all necessary documents of the Trust as required
by the Business Trust Statute, and the Delaware Trustee shall provide prompt
notice to the Owner Trustee of its performance of any such acts. The Owner
Trustee shall reasonably keep the Delaware Trustee informed of any action taken
by the Owner Trustee with respect to the Trust that may affect the Delaware
Trustee. The Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties or liabilities, of the Owner
Trustee. The Delaware Trustee shall not be liable for the acts or omissions of
the Owner Trustee, the Seller or the Trust. The Delaware Trustee shall owe no
fiduciary or other duties to the Trust or the Seller except as expressly
provided for in this Section 6A.1.
(b) The Delaware Trustee is authorized from time to time to take such
action under this Agreement as the Servicer directs in writing and shall, upon
the written direction of the Servicer, execute and deliver any amendments to
this Agreement in accordance with Article VIII hereof.
(c) In the absence of bad faith on its part, the Delaware Trustee may
conclusively rely upon certificates or opinions furnished to the Delaware
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 Delaware Trustee shall have examined such
certificates or opinions so as to determine compliance of the same with the
requirements of this Agreement.
(d) The Delaware 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 6A.1(d) shall not limit the effect of subsection
6A.1(a);
(ii) the Delaware Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Delaware Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Delaware Trustee shall not be liable for or in respect of
the validity or sufficiency of this Agreement or for the due execution
hereof by any Person other than the Delaware Trustee.
(e) The Delaware 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
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Responsible Officer of the Delaware Trustee, result in the Trust's becoming
taxable as a corporation for federal income tax purposes. The Certificateholders
shall not direct the Delaware Trustee to take action that would violate the
provisions of this Section 6A.1 and any such direction shall be null and void.
SECTION 6A.2 Acceptance of Trusts and Duties. Except as otherwise
provided in this Article VI-A, in accepting the trusts hereby created The Bank
of New York (Delaware) acts solely as Delaware Trustee hereunder and not in its
individual capacity and all Persons having any claim against the Delaware
Trustee by reason of the transactions contemplated by this Agreement shall look
only to the Owner Trust Estate for payment or satisfaction thereof. The Delaware
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 Delaware Trustee shall not be liable or accountable hereunder 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 6A.4 or
expressly made elsewhere by the Delaware Trustee. In particular, but not by way
of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) the Delaware 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 Vehicle 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 Vehicle; 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 Delaware Trustee.
(b) the Delaware 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 the instructions of the requisite number of Certificateholders
pursuant hereto;
(c) no provision of this Agreement shall require the Delaware Trustee
to expend or risk funds or otherwise incur any financial liability in the
performance of any of its rights or powers hereunder, if the Delaware 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 Delaware 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 Delaware 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 and the Delaware
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;
(f) the Delaware Trustee shall not be liable for the default or
misconduct of the Owner Trustee, the Indenture Trustee, the Seller or the
Servicer under any of the Basic Documents or otherwise and the Delaware 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 Delaware 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 Delaware Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Delaware Trustee therein or thereby. The right of the Delaware
Trustee to perform any discretionary act enumerated in this Agreement shall not
be construed as a duty, and the Delaware Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of any such
act.
SECTION 6A.3 Action Upon Instruction by Certificateholders.
(a) The Delaware Trustee shall not be required to take any action
hereunder if the Delaware 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 Delaware Trustee or is contrary to the terms hereof or is
otherwise contrary to law.
(c) Whenever the Delaware Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement, or is unsure as to the application, intent, interpretation or meaning
of any provision of this Agreement, the Delaware Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be
adopted, and, to the extent the Delaware Trustee acts in good faith in
accordance with any such instruction received, the Delaware Trustee shall not be
liable on account of such action to any Person. If the Delaware 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, and as it shall deem to be in the best interests of the
Certificateholders, and the Delaware Trustee shall have no liability to any
Person for any such action or inaction.
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SECTION 6A.4 Representations and Warranties of Delaware Trustee. The
Delaware Trustee hereby represents and warrants to the Seller, for the benefit
of the Certificateholders, 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 Delaware Trustee or any order, writ, judgment or
decree of any court, arbitrator or governmental authority applicable to the
Delaware Trustee or any of its assets, (ii) shall not violate any provision of
the corporate charter or by-laws of the Delaware 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 Delaware Trustee's performance or ability to
perform its duties as Delaware Trustee under this Agreement or on the
transactions contemplated in this Agreement.
(d) The execution, delivery and performance by the Delaware Trustee of
this Agreement shall not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency regulating the
banking and corporate trust activities of banks or trust companies in the
jurisdiction in which the Trust was formed.
(e) This Agreement has been duly executed and delivered by the
Delaware Trustee and constitutes the legal, valid and binding agreement of the
Delaware 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 6A.5 Reliance; Advice of Counsel.
(a) The Delaware 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 reasonably
believed by it to be genuine and reasonably 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 Delaware 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
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matter the method of the determination of which is not specifically prescribed
herein, the Delaware 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 officer of the relevant party, as to such fact or matter, and such
certificate shall constitute full protection to the Delaware 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, the Delaware
Trustee: (i) may act directly or through its agents, attorneys, custodians or
nominees pursuant to agreements entered into with any of them, and the Delaware
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 Delaware 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 Delaware 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.
SECTION 6A.6 Compensation and Indemnity. The Delaware 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 Delaware Trustee, and the Delaware 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 Delaware 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 Delaware Trustee, the Servicer shall pay to the Delaware Trustee
such compensation. The Servicer shall indemnify the Delaware 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 6A.6 shall survive the resignation, removal or termination of the
Delaware Trustee or the termination of this Agreement. Any amounts paid to the
Delaware Trustee pursuant to this Article VI-A shall be deemed not to be a part
of the Owner Trust Estate immediately after such payment.
SECTION 6A.7 Replacement of Delaware Trustee.
(a) The Delaware Trustee may resign at any time and be discharged from
the trusts hereby created by giving 30 days' prior written notice thereof to the
Servicer, provided that such resignation shall not become effective until a
successor Delaware Trustee has been appointed. The Servicer may appoint a
successor Delaware Trustee by delivering a written instrument pursuant to
Section 6A.7(b). If no successor Delaware Trustee shall have been appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Delaware Trustee may petition any court of competent
jurisdiction for the appointment of a successor Delaware Trustee. The Servicer
shall remove the Delaware Trustee if:
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(i) the Delaware Trustee shall cease to be eligible in accordance with
the provisions of Section 6A.9 and shall fail to resign after written
request therefor by the Servicer;
(ii) the Delaware Trustee shall be adjudged bankrupt or insolvent;
(iii) a receiver or other public officer shall be appointed or take
charge or control of the Delaware Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation; or
(iv) the Delaware Trustee shall otherwise be incapable of performing
any part of its obligations hereunder.
(b) If the Delaware Trustee resigns or is removed or if a vacancy
exists in the office of Delaware Trustee for any reason the Servicer shall
promptly appoint a successor Delaware Trustee by written instrument, in
duplicate (one copy of which instrument shall be delivered to the outgoing
Delaware Trustee so removed and one copy to the successor Delaware Trustee) and
shall pay all fees owed to the outgoing Delaware Trustee.
(c) Any resignation or removal of the Delaware Trustee and appointment
of a successor Delaware Trustee pursuant to any of the provisions of this
Section 6A.7 shall not become effective until a written acceptance of
appointment is delivered by the successor Delaware Trustee to the outgoing
Delaware Trustee and the Servicer and all fees and expenses due to the outgoing
Delaware Trustee are paid. Any successor Delaware Trustee appointed pursuant to
this Section 6A.7 shall be eligible to act in such capacity in accordance with
Section 6A.9 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
Delaware Trustee. The Servicer shall provide notice of such resignation or
removal of the Delaware Trustee to each of the Rating Agencies.
(d) Any predecessor Delaware Trustee shall upon payment of its fees
and expenses deliver to the successor Delaware Trustee all documents and
statements and monies held by such successor under this Agreement. The Servicer
and any predecessor Delaware 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 a successor Delaware Trustee all such rights, powers,
duties and obligations.
(e) Upon acceptance of appointment by a successor Delaware Trustee
pursuant to this Section 6A.7, the Servicer shall mail notice of the successor
of such Delaware Trustee to all Certificateholders, the Indenture Trustee, the
Noteholders and the Rating Agencies.
SECTION 6A.8 Merger or Consolidation of Delaware Trustee. Any Person
into which the Delaware Trustee may be merged or converted or with which it may
be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Delaware Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Delaware Trustee, shall be the successor of the Delaware Trustee hereunder,
provided such
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Person shall be eligible pursuant to Section 6A.9, and without the execution or
filing of any instrument or any further act on the part of any of the parties
hereto (except for the filing of an amendment to the Trust's certificate of
trust if required by law); provided, however, that the Delaware Trustee shall
mail notice of such merger, conversion or consolidation to the Rating Agencies.
SECTION 6A.9 Eligibility Requirements for Delaware Trustee. The
Delaware Trustee shall at all times (a) satisfy the requirements of ss. 3807 of
the Business Trust Statute and (b) be authorized to exercise corporate trust
powers. If at any time the Delaware Trustee shall cease to be eligible in
accordance with the provisions of this Section 6A.9, the Delaware Trustee shall
resign immediately in the manner and with the effect specified in Section 6A.7.
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ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1 Termination of Trust Agreement.
(a) This Agreement has been entered into in part to induce the
Indenture Trustee and the Certificateholders from time to time to participate in
the transactions contemplated hereby, and each of the Owner Trustee, the
Delaware 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) 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
Delaware Trustee, the Owner Trustee and the Seller, unless the Indenture Trustee
and the Certificateholders consent in writing to such termination. This
Agreement (other than Section 6.9) and the Trust shall terminate and be of no
further force or effect on the 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 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 Delaware Trustee or 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
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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
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.
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ARTICLE VIII
AMENDMENTS
SECTION 8.1 Amendments Without Consent of Certificateholders or
Noteholders. This Agreement may be amended by the Seller, the Delaware Trustee
and the Owner Trustee without the consent of any of the Noteholders or the
Certificateholders (but with prior written notice to each of the Rating Agencies
and 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, the
Delaware Trustee and the Owner Trustee with the consent of 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 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. 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.
-35-
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 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 Delaware Trustee and 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
Delaware Trustee and the Owner Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Delaware Trustee's and the Owner
Trustee's own rights, duties, indemnities or immunities under this Agreement or
otherwise.
-36-
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 No Legal Title to Owner Trust Estate. The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided ownership interest therein only in accordance with
Articles V and VII. No transfer, by operation of law or otherwise, of any right,
title, and interest of the Certificateholders to and in their ownership interest
in the Owner Trust Estate shall operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Owner Trust Estate.
SECTION 9.2 Limitations on Rights of Others. Except as expressly
provided herein, the provisions of this Agreement are solely for the benefit of
the Owner Trustee, the Delaware Trustee, the Seller, the Certificateholders, the
Servicer and, to the extent expressly provided herein, the Indenture Trustee and
the Noteholders, and nothing in this Agreement, whether express or implied,
shall be construed to give to any other Person any legal or equitable right,
remedy or claim in the Owner Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
SECTION 9.3 Notices.
(a) All demands, notices and communications upon or to the Seller, the
Servicer, the Indenture Trustee, the Owner Trustee, the Delaware 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 the Delaware
Trustee, at the following address: Xxxxx Xxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000,
(f) in the case of Xxxxx'x Investors Service, to Xxxxx'x Investors Service, ABS
Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (g) in the
case of Standard & Poor's Ratings Service, to Standard & Poor's Ratings Service,
a division of The XxXxxx-Xxxx Companies, 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx
Xxxx 00000, Attention: Asset-Backed Surveillance Department, or at such other
address as shall be designated by such Person in a written notice to the other
parties to this Agreement.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
-37-
SECTION 9.4 Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
SECTION 9.5 Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
SECTION 9.6 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Seller,
the Owner Trustee, the Delaware Trustee and each Certificateholder and their
respective successors and permitted assigns, all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 9.7 No Petition Covenant. Notwithstanding any prior
termination of this Agreement, the Trust (or the Owner Trustee on behalf of the
Trust), the Owner Trustee, the Delaware 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 the
Trust's 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 Delaware 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.
-38-
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 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 and
the Delaware Trustee further acknowledge and accept the conditions and
limitations with respect to the Servicer's obligation to indemnify, defend and
hold the Owner Trustee and the Delaware Trustee harmless as set forth in Section
8.02 of the Sale and Servicing Agreement.
-39-
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.
THE BANK OF NEW YORK,
as Owner Trustee
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Treasurer
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Xxxxxx X. Laser
-------------------------------------------
Name: Xxxxxx X. Laser
Title: Assistant Vice President
THE CIT GROUP SECURITIZATION
CORPORATION II
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
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
-40-
Accepted and Agreed
with respect to the
provisions relating to
the Certificate Registrar,
the Paying Agent and the
authenticating agent:
THE BANK OF NEW YORK
as Certificate Registrar, Paying Agent
and authenticating agent
By: /s/ Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Treasurer
-41-
EXHIBIT A
NUMBER ______ ORIGINAL CERTIFICATE BALANCE $ _________________
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.
CIT RV TRUST 1999-A
7.21% ASSET-BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of retail installment sale contracts secured
by new and used recreation vehicles 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 RV 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 May
1, 1999 (as amended and supplemented from time to time, the "Trust Agreement"),
between the Seller, The Bank of New York as owner trustee (the "Owner Trustee")
and The Bank of New York (Delaware) as Delaware trustee (the "Delaware
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 7.21% 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 simple interest retail installment sale contracts
(the
"Contracts") secured by the new and used recreation vehicles financed thereby
(the "Financed Vehicles"), certain monies received under the Contracts on and
after May 1, 1999 (the "Cut-off Date"), the Collection Account, the Reserve
Account, the Note Distribution Account and the Certificate Distribution Account,
in each case together with the proceeds thereof, the proceeds from claims under
certain insurance policies in respect of individual Financed Vehicles 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 June 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 and interest and principal due on the Notes on
such 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 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. 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 prior to the Distribution Date on which the
Notes have been paid in full (the "Certificate Cross-over Date"), the Holder of
this Certificate will not be entitled to any payments of principal.
On each Distribution Date on or after the Certificate Cross over 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 Primary Principal Distribution Amount and the Additional Principal
Distribution Amount for such Distribution Date. Payment of the Primary Principal
Distribution Amount on each Distribution Date to the Certificateholders will be
made from the Available Amount remaining after payment of the Servicer Payment,
the Note Interest Distribution Amount, any amount of the Primary Principal
Distribution Amount payable to the Noteholders and the Certificate Interest
Distribution Amount. Payments of the Additional Principal Distribution Amount on
each Distribution Date will be made from the Available Amount remaining after
payment to the Certificateholders of the Primary Principal Distribution Amount
(and all other
A-2
amounts payable prior to the payment of such Primary Principal Distribution
Amount in accordance with the foregoing sentence) and after payment of the
Servicing Fee if CITSF or one of its affiliates is the Servicer, deposit of the
Lender Fee into the Reserve Account and payment of any amount of the Additional
Principal Distribution Amount payable to the Noteholders. Payments of the
Primary Principal Distribution Amount and the Additional Principal Distribution
Amount will only be made to the Certificateholders only after the Notes have
been paid in full.
To the extent the remaining Available Amount on a Distribution Date is
insufficient to fund the entire Primary Principal Distribution Amount due on
such Distribution Date, such shortfall will be funded from the Reserve Account,
subject to the Available Reserve Amount remaining after any withdrawals from the
Reserve Account to make payments of interest and principal due on the Notes and
interest due on the Certificates on such Distribution Date, more specifically
set forth in the Sale and Servicing Agreement.
The distributions in respect of Certificate Balance 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
Certificate Balance 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
A-3
above, the final distribution on this Certificate shall be made after due notice
by the Owner Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office maintained for such
purpose by the Owner Trustee.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-4
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 RV TRUST 1999-A
BY: THE BANK OF NEW YORK,
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.
THE BANK OF NEW YORK
not in its individual
capacity but solely
as Owner Trustee
By: THE BANK OF NEW YORK,
as authenticating agent
By: ____________________________
Name:
Title:
A-5
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, the Delaware 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, the
Delaware Trustee and the Owner Trustee with the consent of the Holders of the
Notes evidencing 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 The Bank of New York.
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.
A-6
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.
A-7
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
______________________________________________________________________ Attorney
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
EXHIBIT B
CERTIFICATE OF TRUST OF
CIT RV TRUST 1999-A
THIS Certificate of Trust of CIT RV Trust 1999-A (the "Trust") is
being duly executed and filed on behalf of the Trust by the undersigned as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. 3801 et seq.).
1. Name. The name of the business trust formed hereby is CIT RV Trust
1999-A.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is The Bank of New York (Delaware), Xxxxx
Xxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
3. This Certificate of Trust shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned have duly executed this
Certificate of Trust in accordance with Section 3811(a)(1) of the Act.
The Bank of New York
By: _________________________________
Name:
Title:
The Bank of New York (Delaware)
By: _________________________________
Name:
Title:
X-0
XXXXXXX X
XXXX XX XXX XX XXXXX 0000-X CERTIFICATE TRANSFEREE LETTER
The Bank of New York, as Certificate Registrar
Re: $575,695,205 CIT RV Trust 1999-A
Ladies and Gentlemen:
This letter is delivered pursuant to Section 9.11 of the Amended and Restated
Trust Agreement, dated as of May 1, 1999 (the "Agreement"), among The CIT Group
Securitization Corporation II, as seller, The Bank of New York, as Owner
Trustee, and The Bank of New York (Delaware), as Delaware Trustee, in connection
with the transfer by [________________] to the undersigned (the "Transferee") of
$ Original Certificate Balance, in certificated, fully registered form (such
registered interest being the "Certificates"). Terms used but not defined herein
shall have the meanings ascribed thereto in the Agreement.
_________ I. The Transferee is not acquiring such Certificate, directly or
(Initial) indirectly, for or on behalf of, an employee benefit plan (as
defined in Section 3(3) of ERISA) that is subject to Title I of
ERISA or a plan (including an individual retirement account) as
described in Section 4975(e)(1) of the Code or any entity
(including an insurance company general account) whose underlying
assets include plan assets by reason of a plan or account
investing in such entity, or a person acting on behalf of any such
plan.
II. NON-FOREIGN STATUS:
FOR INDIVIDUALS
--------- (1) The Transferee hereby certifies under penalties of perjury
(Initial) that it is not a nonresident alien for purposes of income taxation
(as such term is defined in the Code and Income Tax Regulations).
FOR ENTITIES
_________ (2) The Transferee hereby certifies under penalties of perjury
(Initial) that it is not a foreign corporation, foreign partnership, foreign
trust or foreign estate (as those terms are defined in the Code
and Income Tax Regulations).
C-1
GENERAL - FOR ALL INVESTORS
_________ (3) The Transferee understands that the information contained in
(Initial) this Item II may be disclosed to the Internal Revenue Service by
the Trust and that any false statement contained in this Item II
could be punished by fine, imprisonment or both.
III. Transferee's U.S. Employer Identification Number is
[_____________].
IV. Please make all payments due on the Certificates:
(a) by wire transfer to the following account at a bank or other entity in the
United States, having appropriate facilities therefor:
Account Number ______________________ Institution
(b) by mailing a check to the following address:
----------------------------------
----------------------------------
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Very truly yours,
[Name of Transferee]
By: ______________________________
Name:
Title:
C-2
