As filed with the Securities and Exchange Commission on June 7, 1995
Registration No. 33-59209
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
AMENDMENT NO. 1
TO
FORM S-1 AND FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------------
CIT RV OWNER TRUST 1995-A
(Issuer with respect to the Notes and Certificates)
THE CIT GROUP SECURITIZATION CORPORATION II
(Originator of the Trust described herein)
THE CIT GROUP HOLDINGS, INC.
(Issuer with respect to the Limited Guarantee)
(Exact name as specified in originator's charter)
<TABLE>
<CAPTION>
<S> <C> <C>
Delaware 6146 22-3328188
Delaware (Primary Standard Industrial 13-2994534
(State or other jurisdiction Classification Code Number) (I.R.S. Employer
of incorporation or organization) Identification No.)
The CIT Group Securitization Corporation II The CIT Group Holdings, Inc.
650 CIT Drive 1211 Avenue of the Americas
Livingston, New Jersey 07039 New York, New York 10036
(201) 740-5000 (212) 536-1950
</TABLE>
(Address of principal executive offices)
----------------------
ERNEST D. STEIN
Executive Vice President, General Counsel & Secretary
The CIT Group Holdings, Inc.
1211 Avenue of the Americas
New York, New York 10036
(Name and address of agent for service)
----------------------
Copies to:
Paul N.Watterson, Esq. Reed D. Auerbach, Esq.
SCHULTE ROTH & ZABEL STROOCK & STROOCK & LAVAN
900 Third Avenue 7 Hanover Square
New York, New York 10022 New York, New York 10004
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
----------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that the Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits and Financial Statement Schedules.
a. Exhibits:
1.1* Form of Underwriting Agreement
3.1 Certificate of Incorporation, as amended, of The CIT Group
Securitization Corporation II
3.2 Bylaws of The CIT Group Securitization Corporation II
4.1* Form of Indenture between the Trust and the Indenture Trustee
4.2* Form of Trust Agreement between the Company and the Owner Trustee
4.3* Form of Sale and Servicing Agreement between the Company, CITSF and
the Owner Trustee
4.4* Form of Limited Guarantee of The CIT Group Holdings, Inc.
5.1 Opinion of Schulte Roth & Zabel with respect to legality
8.1 Opinion of Schulte Roth & Zabel with respect to tax matters
10.1* Form of Purchase Agreement
10.2* Form of Subsequent Purchase Agreement
23.1 Consent of Schulte Roth & Zabel
23.2 Consent of KPMG Peat Marwick LLP
24.1 Powers of Attorney of The CIT Group Securitization Corporation II
(included on page II-5)
24.2 Powers of Attorney of The CIT Group Holdings, Inc.
25.1* Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of the Indenture Trustee (bound separately)
* Filed herewith.
b. Financial Statement Schedules:
Not applicable.
Item 17. Undertakings.
The undersigned Registrants hereby undertake as follows:
(a) To provide to the Underwriter at the closing date specified in the
Underwriting Agreement certificates in such denominations and registered in
such names as required by the Underwriter to provide prompt delivery to
each purchaser.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers
and controlling persons of the Registrants pursuant to the foregoing
provisions, or otherwise, the Registrants have been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is therefore
unenforceable. In the event that a claim for indemnification against such
liabilities (other than payment by the Registrants of expenses incurred or
paid by a director, officer or controlling person of such Registrants in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-1
<PAGE>
(c) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrants pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(d) For purposes of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time will be deemed to
be the initial bona fide offering thereof.
(e) For purposes of determining any liability under Securities Act,
each filing of CIT's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bonafide offering thereof.
(f) The undersigned Registrants hereby undertake to file an
application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Act.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Livingston, State of New
Jersey, on June 7, 1995.
THE CIT GROUP SECURITIZATION CORPORATION II
By: /s/ JAMES J. EGAN, JR.
-----------------------------------
Name: James J. Egan, Jr.
Title: President
*By: /s/ JAMES J. EGAN, JR.
-----------------------------------
Name: James J. Egan, Jr.
Title: Attorney-in-Fact
POWER OF ATTORNEY
Each person whose signature to this Registration Statement appears below
hereby constitutes and appoints James J. Egan, Jr., Joseph M. Leone and Norman
H. Rosen, or any of them (with the full power of each of them to act alone), as
his true and lawful attorney-in-fact and agent, with full power of substitution,
to sign on his behalf individually and in the capacity stated below and to
perform any acts necessary to be done in order to file all amendments and
post-effective amendments to this Registration Statement, and any and all
instruments or documents filed as part of or in connection with this
Registration Statement or the amendments thereto, and each of the undersigned
does hereby ratify and confirm all that said attorney-in-fact and agent, or his
substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
--------- ----- ----
<S> <C> <C>
* President and Director June 7, 1995
- ---------------------------------------
James J. Egan, Jr.
* Executive Vice President June 7, 1995
- --------------------------------------- and Director
Joseph M. Leone
* Vice President and Director June 7, 1995
- ---------------------------------------
Edward A. Farley
* Vice President, Treasurer and June 7, 1995
- --------------------------------------- Controller (principal financial
Robin H. Gordon and accounting officer)
</TABLE>
Original powers of attorney authorizing James J. Egan, Jr., Joseph M. Leone
and Norman H. Rosen and each of them to sign the Registration Statement and
amendments thereto on behalf of the directors and officers of the Registrant
indicated above are held by the Corporation and available for examination
pursuant to Item 302(b) of Registration S-T.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in The City of New York and State of New York, on
June 7, 1995.
THE CIT GROUP HOLDINGS, INC.
By: /s/ ERNEST D. STEIN
-----------------------------------
Ernest D. Stein
Executive Vice President,
General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signature and Title Date
------------------- ----
*
- ------------------------------------------------
Albert R. Gamper, Jr.
President, Chief Executive Officer, and Director
(principal executive officer)
*
- ------------------------------------------------
Hisao Kobayashi
Director
* * By /S/ ERNEST D. STEIN
- ------------------------------------------------ -----------------------------
Michio Murata Ernest D. Stein
Director
Attorney-in-fact
* June 7, 1995
- ------------------------------------------------
Joseph A. Pollicino
Director
*
- ------------------------------------------------
Paul N. Roth
Director
*
- ------------------------------------------------
Hideo Kitahara
Director
*
- ------------------------------------------------
Peter J. Tobin
Director
*
- ------------------------------------------------
Toshiji Tokiwa
Director
*
- ------------------------------------------------
Keiji Torii
Director
II-4
<PAGE>
Signature and Title Date
------------------- ----
*
- ------------------------------------------------
William H. Turner
Director
/s/ JOSEPH J. CARROLL June 7, 1995
- ------------------------------------------------
Joseph J. Carroll
Executive Vice President and Chief Financial Officer
(principal financial and accounting officer)
Original powers of attorney authorizing Albert R. Gamper, Jr., Ernest D.
Stein, and Donald J. Rapson and each of them to sign the Registration Statement
and amendments thereto on behalf of the directors and officers of the Registrant
indicated above are held by The CIT Group Holdings, Inc. and available for
examination pursuant to Item 302(b) of Regulation S-T.
II-5
CIT RV OWNER TRUST 1995-A
$________________ CLASS A _____% ASSET BACKED NOTES
$_______________ _____% ASSET BACKED CERTIFICATES
THE CIT GROUP SECURITIZATION CORPORATION II
(SELLER)
June __, 1995
FORM OF UNDERWRITING AGREEMENT
CS FIRST BOSTON CORPORATION,
as Representative of
the Several Underwriters,
Park Avenue Plaza
New York, New York 10055
Dear Sirs:
1. Introductory. The CIT Group Securitization Corporation II, a Delaware
corporation (the "Seller") and a wholly-owned limited-purpose finance subsidiary
of The CIT Group Holdings, Inc., a Delaware corporation ("CIT" or the
"Guarantor"), and CIT (collectively, the "Registrants") propose to cause CIT RV
Owner Trust 1995-A (the "Trust") to issue and sell $____________ principal
amount of its Class A _____% Asset Backed Notes (the "Notes") and $_____________
principal amount of its _____% Asset Backed Certificates (the "Certificates"
and, together with the Notes, the "Securities"). Payments of interest and
principal on the Certificates will be supported by a Limited Guarantee of CIT
(the "Limited Guarantee") in an aggregate amount of $_______________. Each of
the Securities and the Limited Guarantee of CIT are registered under the
registration statement referred to in Section 2(a) (collectively, the "Offered
Securities"). The assets of the Trust include, among other things, a pool of
retail receivables generated pursuant to motor vehicle retail installment sale
contracts (the "Initial Contracts") secured by new and used recreational
vehicles financed thereby (the "Initial Financed Vehicles"), and certain monies
received thereunder on or after June 1, 1995, amounts deposited in the
Pre-Funding Account and Capitalized Interest Account, additional retail
receivables generated pursuant to motor vehicle retail installment sale
<PAGE>
contracts (the "Subsequent Contracts"; and together with the Initial Contracts,
the "Contracts") secured by new and used recreational vehicles financed thereby
(the "Subsequent Financed Vehicles"; and together with the Initial Financed
Vehicles, the "Financed Vehicles") to be conveyed to the Trust subsequent to the
date of issuance of the Securities and certain monies received thereunder on or
after their respective subsequent cutoff dates, and the other property and the
proceeds thereof to be conveyed to the Trust pursuant to the Sale and Servicing
Agreement to be dated as of June 1, 1995 (the "Sale and Servicing Agreement")
among the Trust, the Seller, and The CIT Group/Sales Financing, Inc., a
wholly-owned subsidiary of CIT, as servicer ("CITSF" or the "Servicer"). The
Contracts and other assets of the Trust will be sold by CITSF to the Seller
pursuant to a Purchase Agreement to be dated as of June 1, 1995 (the "Purchase
Agreement") between CITSF and the Seller, and finally by the Seller to the Trust
pursuant to the Sale and Servicing Agreement. Certain of the Contracts and other
property sold by CITSF to the Seller will first be purchased by CITSF from The
CIT Group/Sales Financing/NY ("CITSF/NY") pursuant to a Purchase Agreement to be
dated as of June 1, 1995 (the "CITSF/NY Sale Agreement") between CITSF/NY and
CITSF. The Servicer will service the Contracts on behalf of the Trust pursuant
to the Sale and Servicing Agreement. The Notes will be issued pursuant to the
Indenture to be dated as of _______________, 1995 (as amended and supplemented
from time to time, the "Indenture"), between the Trust and _______________, a
_______________(the "Trustee"). Pursuant to the Sale and Servicing Agreement,
the Servicer will agree to perform certain administrative tasks imposed on the
Trust under the Indenture. The Certificates, each representing a fractional
undivided interest in the Trust, will be issued pursuant to a Trust Agreement to
be dated as of _________________, 1995 (the "Trust Agreement"), between the
Seller and ________________, a _______________, as owner trustee (the "Owner
Trustee").
Capitalized terms used herein and not otherwise defined shall have the
meanings given them in the Sale and Servicing Agreement and the Indenture.
The Seller, the Guarantor and CITSF hereby agree with the several
Underwriters named in Schedule I hereto (the "Underwriters") as follows:
2. Representations and Warranties of the Seller, the Guarantor and CITSF.
Each of the Seller, the Guarantor and CITSF, jointly and severally, represents
and warrants to, and agrees with, the Underwriters, as of the date hereof and as
of the date of the purchase and sale of the Securities pursuant to Section 3
hereof (the "Closing Date") that:
-2-
<PAGE>
(a) A registration statement on Form S-1 (No. 33- __________) and Form
S-3 (No. 33-___________) relating to the Offered Securities, including a
form of prospectus has been filed with the Securities and Exchange
Commission (the "Commission") and either (i) has been declared effective
under the Securities Act of 1933, as amended (the "Act"), and is not
proposed to be amended or (ii) is proposed to be amended by amendment or
post-effective amendment. If the Seller does not propose to amend such
registration statement and if any post-effective amendment to such
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent such amendment
has been declared effective by the Commission. For purposes of this
Agreement, "Effective Time" means (i) if the Seller has advised the
Representative that it does not propose to amend such registration
statement, the date and time as of which such registration statement, or
the most recent post-effective amendment thereto (if any) filed prior to
the execution and delivery of this Agreement, was declared effective by the
Commission, or (ii) if the Seller has advised the Representative that it
proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as the
case may be, is declared effective by the Commission. "Effective Date"
means the date of the Effective Time. Such registration statement, as
amended at the Effective Time, including all material incorporated by
reference therein and including all information (if any) deemed to be a
part of such registration statement as of the Effective Time pursuant to
Rule 430A(b) under the Act, is hereinafter referred to as the "Registration
Statement," and the form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with Rule
424(b) ("Rule 424(b)") under the Act or (if no such filing is required) as
included in the Registration Statement, including all material incorporated
by reference in such prospectus is hereinafter referred to as the
"Prospectus."
(b) If the Effective Time is prior to the execution and delivery of
this Agreement: (i) on the Effective Date, the Registration Statement
conformed in all respects to the requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and the rules
and regulations of the Commission promulgated under the Act and the Trust
Indenture Act (the "Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and (ii) on the date of this Agreement, the Registration
Statement conforms, and at the time of filing of the Prospectus pursuant to
Rule 424(b), the Registration Statement and the Prospectus will conform, in
all respects to the requirements of the Act, the Trust Indenture
-3-
<PAGE>
Act and the Rules and Regulations, and neither of such documents includes,
or will include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. If the Effective Time is
subsequent to the execution and delivery of this Agreement: (i) on the
Effective Date, the Registration Statement and the Prospectus will conform
in all material respects to the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations, (ii) on the Effective Date,
the Registration Statement will not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading
and (iii) on the Effective Date, at the time of filing of the Prospectus
pursuant to Rule 424(b) and at the Closing Date, the Prospectus will not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. The two preceding sentences do not apply to
statements in or omissions from the Registration Statement or Prospectus
based upon written information furnished to the Seller by any Underwriter
through the Representative specifically for use therein. The Seller, CITSF
and the Guarantor hereby acknowledge that any information furnished by any
of the Underwriters specifically for use in the Registration Statement, any
preliminary prospectus or the Prospectus is the Underwriters' Information
(as defined in Section 7(a)).
(c) CIT meets the requirements for use of Form S-3 under the Act.
(d) The documents incorporated by reference in the Registration
Statement and Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations of the Commission
thereunder.
(e) Each of the Seller, the Guarantor, CITSF and CITSF/NY have been
duly organized and are validly existing as corporations in good standing
under the laws of the State of Delaware with corporate power and authority
to own, lease and operate their respective properties and conduct their
respective businesses as described or incorporated in the Prospectus and to
enter into and perform their obligations under each of the Basic Documents
(as defined below) to which it is a party; and each of the Seller, the
Guarantor, CITSF and CITSF/NY is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the
character of the business transacted by it or properties owned or leased by
it requires
-4-
<PAGE>
such qualification and in which the failure so to qualify would have a
material adverse effect on its respective business, properties, assets, or
condition (financial or other) or on its ability to perform its obligations
under any of the Basic Documents to which it is a party. "Basic Documents"
means this Agreement, the Sale and Servicing Agreement, the Trust
Agreement, the Indenture, the CITSF/NY Sale Agreement, the Purchase
Agreement, the Note Depository Agreement, the Certificate Depository
Agreement and the Limited Guarantee.
(f) The Seller is not in violation of its certificate of incorporation
or by-laws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or its properties may be bound, which
default might result in any material adverse change in the financial
condition, earnings, affairs or business of the Seller or which might
materially and adversely affect the properties or assets thereof or the
ability to perform its obligations under any of the Basic Documents to
which it is a party.
(g) Neither the Guarantor, CITSF nor CITSF/NY is in violation of its
certificate of incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which it is a party or by which it or
its respective properties may be bound, which default might result in any
material adverse change in the financial condition, earnings, affairs or
business of any of the Guarantor, CITSF or CITSF/NY or which might
materially and adversely affect the properties or assets thereof or their
ability to perform its obligations under any of the Basic Documents to
which it is a party.
(h) The execution and delivery by the Seller on the Closing Date of
the Basic Documents to which it is a party and the performance of its
obligations thereunder will be within the corporate power of the Seller and
duly authorized by all necessary corporate action on the part of the Seller
on and as of the Closing Date; and neither the issuance and sale of the
Securities to the Underwriters, nor the execution and delivery by the
Seller of the Basic Documents to which it is a party, nor the consummation
by the Seller of the transactions therein contemplated, nor compliance by
the Seller with the provisions hereof or thereof, nor the grant of the
security interest in the Collateral to the Trustee pursuant to the
Indenture, will materially conflict with or result in a material breach of,
or constitute a material default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Seller or its properties or the certificate
-5-
<PAGE>
of incorporation or by-laws of the Seller or any of the provisions of any
indenture, mortgage, contract or other instrument to which the Seller is a
party or by which the Seller is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its property
pursuant to the terms of any such indenture, mortgage, contract or other
instrument.
(i) The execution and delivery by each of the Guarantor, CITSF,
CITSF/NY and The CIT GP Corporation, an Illinois corporation and a
wholly-owned limited-purpose finance subsidiary of [CIT] ("CIT GP"), on and
as of the Closing Date of any of the Basic Documents to which it is a party
and the performance of its obligations thereunder, will be within the
corporate power of each of the Guarantor, CITSF, CITSF/NY and CIT GP and
duly authorized by all necessary corporate action on the part of each of
the Guarantor, CITSF, CITSF/NY and CIT GP on and as of the Closing Date;
and neither the issuance and sale of the Securities to the Underwriters,
nor the execution and delivery by the Guarantor, CITSF, CITSF/NY and CIT GP
of any of the Basic Documents to which it is a party, nor the consummation
by the Guarantor, CITSF and CIT GP of the transactions therein
contemplated, nor compliance by the Guarantor, CITSF and CIT GP with the
provisions hereof or thereof, nor the grant of the security interest in the
Collateral to the Trustee pursuant to the Indenture, will materially
conflict with or result in a material breach of, or constitute a material
default under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Guarantor, CITSF,
CITSF/NY or CIT GP or their respective properties or the certificate of
incorporation or by-laws of the Guarantor, CITSF, CITSF/NY or CIT GP, or
any of the provisions of any material indenture, mortgage, contract or
other instrument to which the Guarantor, CITSF, CITSF/NY or CIT GP is a
party or by which the Guarantor, CITSF, CITSF/NY or CIT GP is bound or
result in the creation or imposition of any lien, charge or encumbrance
upon any of their respective property pursuant to the terms of any such
material indenture, mortgage, contract or other instrument.
(j) This Agreement has been duly authorized, executed and delivered by
each of the Seller, the Guarantor and CITSF, and it constitutes a legal,
valid and binding instrument enforceable against each of the Seller, the
Guarantor and CITSF in accordance with its terms, subject (i) to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally, (ii) as to enforceability, to
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law) and (iii) as to enforceability with
respect to rights of indemnity thereunder, to limitations of public policy
under applicable securities laws.
-6-
<PAGE>
(k) The Sale and Servicing Agreement when executed and delivered on
the Closing Date will be duly authorized, executed and delivered by each of
the Seller and CITSF, and will constitute a legal, valid and binding
instrument enforceable against each of the Seller and CITSF in accordance
with its terms, subject (i) to applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors' rights
generally and (ii) as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law).
(l) The Trust Agreement when executed and delivered on the Closing
Date will be duly authorized, executed and delivered by each of the Seller
and CIT GP, and will constitute a legal, valid and binding instrument
enforceable against each of the Seller and CIT GP in accordance with its
terms, subject (i) to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights generally and
(ii) as to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
(m) The Limited Guarantee when executed and delivered on the Closing
Date will be duly authorized, executed and delivered by the Guarantor and
will constitute a legal, valid and binding instrument enforceable against
the Guarantor in accordance with its terms, subject (i) to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally, and (ii) as to enforceability, to
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law). The Limited Guarantee is a senior,
general, unsecured obligation of CIT that ranks pari passu with all other
senior, general, unsecured obligations of CIT.
(n) The Certificates, when duly and validly executed by the Owner
Trustee, authenticated and delivered in accordance with the Trust
Agreement, and delivered to and paid for pursuant hereto will be validly
issued and outstanding and entitled to the benefits of the Trust Agreement.
(o) The Notes, when duly and validly executed by the Trustee,
authenticated and delivered in accordance with the Indenture, and delivered
and paid for pursuant hereto will be validly issued and outstanding and
entitled to the benefits of the Indenture.
(p) No filing or registration with, notice to or consent, approval,
authorization or order of any court or governmental authority or agency is
required for the consummation by any of the Seller, the Guarantor, CITSF
and CIT GP of the transactions contemplated by any of the Basic
-7-
<PAGE>
Documents to which it is a party, except such as may be required under the
Act, the Rules and Regulations, or state securities or Blue Sky laws.
(q) The Seller, the Guarantor, CITSF, CITSF/NY and CIT GP each possess
all material licenses, certificates, authorities or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the businesses now operated by them and as described
in the Prospectus, other than such licenses, certificates, authorities or
permits the failure of which to possess would not have a material adverse
effect on the interests of the Certificateholders or the Noteholders under
the Basic Documents, and neither the Seller, the Guarantor, CITSF, CITSF/NY
nor CIT GP have received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authority or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
conduct of the business, operations, financial condition or income of any
of the Seller, the Guarantor, CITSF, CITSF/NY or CIT GP or their ability to
perform their respective obligations under any of the Basic Documents to
which it is a party.
(r) As of the Closing Date, the Initial Contracts and related property
will have been duly and validly assigned to the Owner Trustee in accordance
with the Basic Documents; and when such assignment is effected, a duly and
validly perfected transfer of all such Initial Contracts subject to no
prior lien, mortgage, security interest, pledge, charge or other
encumbrance created by the Seller, the Guarantor, CITSF, CITSF/NY or CIT GP
will have occurred. As of the Closing Date, the Trust's assignment of the
Collateral to the Trustee pursuant to the Indenture will vest in the
Trustee, for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no prior lien, mortgage, security
interest, pledge, charge or other encumbrance created by the Seller, the
Guarantor, CITSF, CITSF/NY or CIT GP. As of each Subsequent Transfer Date,
the Subsequent Contracts and related property conveyed to the Trust on such
date will have been duly and validly assigned to the Owner Trustee in
accordance with the Basic Documents; and when such assignment is effective,
the duly and validly perfected transfer of all such Subsequent Contracts
will be subject to no prior lien, mortgage, security interest, pledge,
charge or other encumbrance created by the Seller, the Guarantor, CITSF,
CITSF/NY or CIT GP. As of each Subsequent Transfer Date, the Trust's
assignment of the Collateral sold to the Trust on such Subsequent Transfer
Date pursuant to the Indenture will vest in the Trustee, for the benefit of
the Noteholders, a first priority perfected security interest therein,
subject to no prior lien, mortgage, security interest,
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pledge, charge or other encumbrance created by the Seller, the Guarantor,
CITSF, CITSF/NY or CIT GP.
(s) As of the Closing Date, each of the Initial Contracts will meet
the eligibility criteria described in the Prospectus and as of each
Subsequent Transfer Date, each of the Subsequent Contracts being
transferred to the Trust will meet the eligibility criteria described in
the Prospectus.
(t) The chief executive office of each of the Seller, CITSF and
CITSF/NY is listed opposite its name on Schedule II hereto, which office is
the place where it is "located" for the purposes of Section 9-103(3)(d) of
the Uniform Commercial Code as in effect in the State of New York, and the
offices of each of the Seller, CITSF and CITSF/NY where it keeps its
respective records concerning the Contracts are also listed in said
Schedule opposite its name and there have been no other such locations
during the four months preceding the Closing Date.
(u) The financial statements of CIT included or incorporated in the
Registration Statement and Prospectus present fairly the financial position
of CIT and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with generally
accepted accounting principles in the United States applied on a consistent
basis; and any schedules included in the Registration Statement present
fairly the information required to be stated therein.
(v) Except as disclosed or incorporated by reference in the
Prospectus, since the date of the latest audited financial statements of
CIT included or incorporated by reference in the Prospectus there has been
no material adverse change, nor any development or event which is
reasonably likely to result in a material adverse change, in the condition
(financial or other), business, properties or results of operations of CIT
and its subsidiaries taken as a whole.
(w) Neither the Seller, the Guarantor, CITSF, CIT GP nor the Trust
Fund created by the Sale and Servicing Agreement will be subject to
registration as an "investment company" under the Investment Company Act of
1940, as amended (the "Investment Company Act").
(x) In connection with the offering of the Offered Securities in the
State of Florida, the Seller hereby certifies that they have complied with
all provisions of Section 5.17.075 of the Florida Securities and Investor
Protection Act.
(y) As of the Closing Date, each of the respective representations and
warranties of the Seller, the Guarantor,
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CITSF, CITSF/NY and CIT GP set forth in the Basic Documents will be true
and correct, and the Underwriters may rely on such representations and
warranties as if they were set forth herein in full.
3. Purchase, Sale and Delivery of Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Seller agrees to cause the Trust to
sell to the Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from the Trust, the principal amount of the Notes set forth
opposite the name of such Underwriter in Schedule I hereto at a purchase price
of ___________% of the principal amount thereof and the principal amount of the
Certificates set forth opposite the name of such Underwriter in Schedule I
hereto at a purchase price of __________% of the principal amount thereof.
The Seller will deliver the Securities to the Representative, for the
account of the Underwriters, against payment of the purchase price by wire
transfer of immediately available funds to the Seller, or to such bank as may be
designated by the Seller, at the office of Schulte Roth & Zabel, 900 Third
Avenue, New York, New York 10022 on _______________, 1995 at 10:00 a.m., New
York City time, or at such other time not later than seven full business days
thereafter as the Representative and the Seller determine, such time being
herein referred to as the "Closing Date." The Securities to be so delivered will
be initially represented by one or more Notes and one or more Certificates
registered in the name of Cede & Co., the nominee of The Depository Trust
Company ("DTC"). The interests of beneficial owners of the Securities will be
represented by book entries on the records of DTC and participating members
thereof. One Certificate in definitive form in the principal amount of
$________________ will be registered in the name of CIT GP (the "GP
Certificate"). Definitive Notes and Definitive Certificates (other than the GP
Certificate) will be available only under the limited circumstances set forth in
the Indenture and Trust Agreement. The notes and certificates evidencing the
Notes and Certificates will be made available for checking and packaging at the
offices of Schulte Roth & Zabel at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that, after the Registration
Statement becomes effective, the Underwriters propose to offer the Securities
for sale to the public (which may include selected dealers), on the terms set
forth in the Prospectus.
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5. Covenants of the Seller, the Guarantor and CITSF. Each of the Seller,
the Guarantor and CITSF, jointly and severally, covenants and agrees with the
several Underwriters that:
(a) If the Effective Time is prior to the execution and delivery of
this Agreement, the Registrants will file the Prospectus, properly
completed, with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by the
Representative, subparagraph (4)) of Rule 424(b) not later than the earlier
of (i) the second business day following the execution and delivery of this
Agreement or (ii) the fifth business day after the Effective Date. The
Seller will advise the Representative promptly of any such filing pursuant
to Rule 424(b).
(b) The Registrants will advise the Representative promptly of any
proposal to amend or supplement the registration statement as filed or the
related prospectus or the Registration Statement or the Prospectus, and
will not effect any such amendment or supplementation without the
Representative's consent; and the Registrants will also advise the
Representative promptly of the effectiveness of the Registration Statement
(if the Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of the Registration
Statement or the Prospectus and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement and will
use its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) The Registrants will arrange for the qualification of the Offered
Securities for offering and sale under the securities laws of such
jurisdictions in the United States as the Representative may reasonably
designate and will continue such qualifications in effect so long as
necessary under such laws for the distribution of such Offered Securities,
provided that in connection therewith the Registrants shall not be required
to qualify as a foreign corporation to do business nor become subject to
service of process generally, but only to the extent required for such
qualification, in any jurisdiction in which it is not currently so
qualified.
(d) If, at any time when a prospectus relating to the Securities is
required to be delivered by law in connection with sales by any Underwriter
or dealer, either (i) any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (ii) for any other reason it
shall be necessary to amend or
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supplement the Prospectus to comply with the Act, the Registrants will
promptly notify the Representative and will promptly prepare and file with
the Commission, at their own expense, an amendment or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance. Neither the consent of the Representative to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6 hereof.
(e) As soon as practicable, but not later than the Availability Date
(as defined below), the Registrants will cause the Trust to make generally
available to Noteholders and Certificateholders an earnings statement of
the Trust covering a period of at least 12 months beginning after the
Effective Date which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 of the applicable Rules and Regulations thereunder. For
the purpose of the preceding sentence, "Availability Date" means the 45th
day after the end of the fourth fiscal quarter following the fiscal quarter
that includes the Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Trust's fiscal year, "Availability Date"
means the 90th day after the end of such fourth fiscal quarter.
(f) The Registrants will furnish to each of the Underwriters copies of
the Registration Statement (three of which will be signed and include all
exhibits), each related preliminary prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Representative may from time to
time reasonably request.
(g) So long as any of the Securities are outstanding, the Seller, the
Guarantor or CITSF, as the case may be, will furnish to the Representative
copies of all written reports or other written communications (financial or
otherwise) furnished or made available to Noteholders and/or
Certificateholders, and deliver to the Representative during such same
period, (i) as soon as they are available, copies of any reports and
financial statements filed by or on behalf of the Trust by the Registrants
with the Commission pursuant to the Exchange Act, (ii) CIT will furnish to
the Representative and, upon request, to each of the other Underwriters,
(a) as soon as practicable after the end of each fiscal year, a copy of its
annual report to stockholders for such year and (b) as soon as available, a
copy of each report and any definitive proxy statement of CIT filed with
the Commission under the Exchange Act, and (iii) such additional
information concerning the Seller, the Guarantor (which is not confidential
relating to the ability of CIT to meet its obligations under the Limited
Guarantee) or CITSF (relating to the Contracts, the servicing thereof or
the ability of CITSF to act as Servicer), the Notes, the Certificates, the
Limited
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Guarantee or the Trust as the Representative may reasonably request
from time to time.
(h) Whether or not the transactions contemplated by this Agreement are
consummated, the Seller, the Guarantor, CITSF and CIT GP will pay or cause
to be paid all costs and expenses incident to the performance of their
respective obligations hereunder, including (i) the preparation, issuance
and delivery of the Securities, (ii) any fees charged by Moody's Investors
Service, Inc. ("Moody's") and Standard & Poor's Ratings Group, a division
of McGraw-Hill, Inc. ("S&P" and, together with Moody's, the "Rating
Agencies"), for the rating of the Securities, (iii) the expenses incurred
in printing, reproducing and distributing the registration statement as
filed, the Registration Statement, preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto required
pursuant to Section 5(d) hereof), (iv) the fees and disbursements of
counsel to the Seller, the Guarantor, CITSF and CIT GP and the independent
public accountants of the Seller, (v) the fees and disbursements of the
Trustee and its counsel, (vi) the fees and disbursement of the Owner
Trustee and its counsel, (vii) the fees of DTC in connection with the
book-entry registration of the Securities, (viii) the reasonable expenses
of the Representative including the reasonable fees and disbursements of
its counsel, in connection with the initial qualification of the Offered
Securities for sale in the jurisdictions that the Representative may
designate pursuant to Section 5(c) hereof and in connection with the
preparation of any blue sky survey and legal investment survey and (ix) the
printing and delivery to the Underwriters, in such quantities as the
Underwriters may reasonably request, of copies of the Basic Documents.
Subject to Section 8 hereof, the Underwriters shall be responsible for
their own costs and expenses, including the fees and expenses of their
counsel (other than the reasonable expenses of the Representative including
the reasonable fees and disbursements of its counsel, in connection with
the initial qualification of the Offered Securities for sale in the
jurisdictions that the Representative may designate pursuant to Section
5(c) hereof and in connection with the preparation of any blue sky survey
and legal investment survey).
(i) On or before the Closing Date, the Seller, CITSF and CITSF/NY
shall cause each of their respective books and records (including any
computer records) relating to the Initial Contracts to be marked to show
the absolute ownership by the Owner Trustee, on behalf of the Trust, of the
Initial Contracts, and from and after the Closing Date neither the Seller,
CITSF, as Servicer, nor CITSF/NY shall take any action inconsistent with
the ownership by the Owner Trustee on behalf of the Trust of the Initial
Contracts, other than as permitted by the Basic Documents.
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(j) On or before each Subsequent Transfer Date, the Seller, CITSF and
CITSF/NY shall cause each of their respective books and records (including
any computer records) relating to the Subsequent Contracts to be sold on
such Subsequent Transfer Date to be marked to show the absolute ownership
by the Owner Trustee, on behalf of the Trust, of such Subsequent Contracts,
and from and after such Subsequent Transfer Date neither the Seller, CITSF,
as Servicer, nor CITSF/NY shall take any action inconsistent with the
ownership by the Owner Trustee on behalf of the Trust of such Subsequent
Contracts, other than as permitted by the Basic Documents.
(k) Until the retirement of the Securities, or until such time as the
Underwriters shall cease to maintain a secondary market in the Securities,
whichever occurs first, the Seller or CITSF will deliver to the
Representative the certified Agreement, as soon as such statements are
furnished to the Trustee or the Owner Trustee.
(l) To the extent, if any, that either of the ratings provided with
respect to the Securities by either Rating Agency is conditional upon the
furnishing of documents or the taking of any other actions by the Seller,
the Guarantor, CITSF, CITSF/NY or CIT GP, the Seller, the Guarantor, CITSF,
CITSF/NY or CIT GP, as the case may be, shall furnish such documents and
take any such other actions as may be required to satisfy such conditions.
A copy of any such document shall be provided to the Representative at the
time it is delivered to the Rating Agencies.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Securities will be subject
to the accuracy of the representations and warranties on the part of the Seller,
the Guarantor, CITSF, and contained or incorporated herein, to the accuracy of
the statements of officers of the Seller, the Guarantor and CITSF made pursuant
to the provisions hereof, to the performance by the Seller, the Guarantor and
CITSF of its obligations hereunder and to the following additional conditions
precedent:
(a) On the date of this Agreement, the Representative and the Seller
shall have received a letter, dated the date of delivery thereof, of KPMG
Peat Marwick LLP confirming that they are independent public accountants
with respect to the Seller and CITSF within the meaning of the Act and the
Rules and Regulations, substantially in the form of the draft to which the
Representative has previously agreed and otherwise in form and substance
satisfactory to the Representative and counsel for the Underwriters.
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<PAGE>
(b) If the Effective Time is not prior to the execution and delivery
of this Agreement, the Effective Time shall have occurred not later than
10:00 p.m., New York City time, on the date of this Agreement or such later
date as shall have been consented to by the Representative. If the
Effective Time is prior to the execution and delivery of this Agreement,
the Prospectus shall have been filed with the Commission in accordance with
the Rules and Regulations and Section 5(a) hereof. On or prior to the
Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Registrants,
shall be contemplated by the Commission.
(c) The Representative shall have received a certificate, dated the
Closing Date, executed by any two of the President, any Vice President, the
principal financial officer or the principal accounting officer of (i) the
Seller representing and warranting that, as of the Closing Date, to the
best of each such officer's knowledge after reasonable investigation, the
representations and warranties of the Seller in this Agreement and the
other Basic Documents to which it is a party are true and correct, that the
Seller has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder or thereunder at or prior to
the Closing Date, that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the best of their knowledge, are contemplated
by the Commission, (ii) CITSF in which such officers shall state that, to
the best of each such officer's knowledge after reasonable investigation,
the representations and warranties of CITSF in this Agreement and the other
Basic Documents to which it is a party are true and correct and that CITSF
has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder or thereunder at or prior to the
Closing Date, and (iii) the Guarantor representing and warranting that, as
of the Closing Date, to the best of each such officer's knowledge after
reasonable investigation, the representations and warranties of the
Guarantor in this Agreement and the other Basic Documents to which it is a
party are true and correct, that the Guarantor has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder or thereunder at or prior to the Closing Date, that no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or, to
the best of their knowledge, are contemplated by the Commission.
(d) The Representative shall have received a certificate, dated the
Closing Date, executed by any two of the President, any Vice President, the
principal financial officer
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or the principal accounting officer of CITSF/NY in which such officers
shall state that, to the best of each such officer's knowledge after
reasonable investigation, (i) the representations and warranties of
CITSF/NY in the CITSF/NY Sale Agreement are true and correct and (ii) that
CITSF/NY has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied under the CITSF/NY Sale Agreement at
or prior to the Closing Date.
(e) The Representative shall have received a certificate, dated the
Closing Date, executed by any two of the President, any Vice President, the
principal financial officer or the principal accounting officer of CIT GP
in which such officers shall state that, to the best of each such officer's
knowledge after reasonable investigation, (i) the representations and
warranties of CIT GP in the Trust Agreement are true and correct and (ii)
that CIT GP has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied under the Trust Agreement at or
prior to the Closing Date. Such certificate shall have attached thereto a
true and correct photocopy of the demand note furnished to CIT GP by [CIT].
(f) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties
of the Trust, the Seller, CIT (in its capacity as Guarantor), CITSF,
CITSF/NY or CIT GP which, in the judgment of a majority in interest of the
Underwriters (including the Representative), materially impairs the
investment quality of the Securities or makes it impractical or inadvisable
to proceed with completion of the sale of and payment for the Securities;
(ii) any downgrading in the rating of any debt securities of CIT or CITSF
or any of their direct or indirect subsidiaries by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any such debt
securities (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange or any setting of minimum prices
for trading on such exchange; (iv) any banking moratorium declared by
Federal, New Jersey or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority in
interest of the Underwriters (including the Representative), the effect of
any such outbreak, escalation, declaration, calamity or emergency makes it
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impractical or inadvisable to proceed with completion of the sale of and
payment for the Securities.
(g) The Representative shall have received a written opinion of
in-house General Counsel of the Seller, CITSF and CITSF/NY, or other
counsel satisfactory to the Representative in its reasonable judgment,
dated the Closing Date, in substantially the form set forth below, with
such changes therein as the Representative and counsel for the Underwriters
shall reasonably agree:
(i) The Seller and CITSF have each been duly organized and are
validly existing as corporations in good standing under the laws of
the State of Delaware. CITSF/NY has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of New York.
(ii) The Seller, CITSF and CITSF/NY each have the corporate power
and corporate authority to carry on their respective businesses as
described in the Prospectus and to own and operate their respective
properties in connection therewith.
(iii) The Seller, CITSF and CITSF/NY are each corporations duly
organized, validly existing and in good standing under the laws of the
jurisdiction of their organization and each has the corporate power to
own its assets and to transact the business in which it is currently
engaged and to perform their respective obligations under each of the
Basic Documents to which it is a party. The Seller, CITSF and CITSF/NY
are each qualified to do business as a foreign corporation and each is
in good standing in each jurisdiction in which the character of the
business transacted by it or properties owned or leased by it requires
such qualification and in which the failure so to qualify would have a
material adverse effect on the business, properties, assets, or
condition (financial or other) of the Seller, CITSF or CITSF/NY,
respectively or on their ability to perform their respective
obligations under the Basic Documents.
(iv) This Agreement has been duly authorized, executed and
delivered by each of the Seller and CITSF, and is a valid and binding
obligation of each of the Seller and CITSF enforceable against each of
the Seller and CITSF in accordance with its terms, except that (A)
such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating
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to creditors' rights generally, (B) such enforcement
may be limited by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law), and (C)
the enforceability as to rights to indemnity thereunder may be limited
under applicable law.
(v) Each of the Basic Documents to which the Seller, CITSF or
CITSF/NY is a party have been duly authorized, executed and delivered
by each of the Seller, CITSF and CITSF/NY, and each constitutes a
valid and binding obligation of, each of the Seller, CITSF and
CITSF/NY, enforceable against each of the Seller, CITSF and CITSF/NY
in accordance with its terms, except that (A) such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (B) such enforcement may be limited by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(vi) The execution and delivery by each of the Seller, CITSF and
CITSF/NY of each of the Basic Documents to which it is a party, the
performance of their respective obligations thereunder and the signing
of the Registration Statement by the Seller are within the corporate
power of the Seller, CITSF and CITSF/NY, as applicable, and have been
duly authorized by all necessary corporate action on the part of the
Seller, CITSF and CITSF/NY, as applicable; and neither the issue and
sale of the Securities, nor the consummation of the transactions
contemplated by the Basic Documents nor the fulfillment of the terms
thereof, nor the grant of the security interest in the Collateral to
the Trustee pursuant to the Indenture will, to the best of such
counsel's knowledge, conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or asset of the Seller, CITSF
or CITSF/NY pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Seller, CITSF
or CITSF/NY is a party or by which either may be bound or to which the
property or assets of the Seller, CITSF or CITSF/NY are subject (which
contracts, indentures, mortgages, loan agreements, notes, leases and
other such instruments have been identified by the Seller, CITSF or
CITSF/NY to such counsel), nor will such action result in any
violation of the provisions of the certificate of incorporation or
by-laws of the Seller, CITSF or CITSF/NY or, to the best of such
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counsel's knowledge, any law, administrative regulation or
administrative or court decree of any state or federal courts,
regulatory bodies, other body, governmental entity or arbitrator
having jurisdiction over the Seller, CITSF or CITSF/NY.
(vii) To the best of such counsel's knowledge, no filing or
registration with or notice to or consent, approval, authorization or
order of any New Jersey, New York or federal court or governmental
authority or agency is required for the consummation by the Seller,
CITSF or CITSF/NY of the transactions contemplated by this Agreement,
except such as may be required under the Act or the Rules and
Regulations, or state securities or Blue Sky laws.
(viii) There are no legal or governmental proceedings pending to
which the Seller, CITSF or CITSF/NY is a party or of which any
property of the Seller, CITSF or CITSF/NY is the subject, and no such
proceedings are known by such counsel to be threatened or contemplated
by governmental authorities or threatened by others, (A) that are
required to be disclosed in the Registration Statement or (B)(1)
asserting the invalidity of all or part of any of the Basic Documents,
(2) seeking to prevent the issuance of the Notes or the Certificates,
(3) that could materially and adversely affect the Seller's, CITSF's
or CITSF/NY's obligations under any of the Basic Documents or (4)
seeking to affect adversely the federal or state income tax attributes
of the Securities.
(ix) Such counsel is familiar with CITSF's and CITSF/NY's
standard operating procedures relating to CITSF's and CITSF/NY's
acquisition of a perfected first priority security interest in the
vehicles financed by CITSF and CITSF/NY's pursuant to motor vehicle
retail installment sale contracts and motor vehicle installment loan
contracts in the ordinary course of CITSF's and CITSF/NY's business.
Other than with respect to mechanic's and materialmen's liens,
assuming that CITSF's standard procedures are followed with respect to
the perfection of security interests in the Financed Vehicles (and
such counsel has no reason to believe that either CITSF or CITSF/NY
has not or will not continue to follow its standard procedures in
connection with the perfection of security interests in the Financed
Vehicles), CITSF and CITSF/NY have acquired or will acquire a
perfected first priority security interest in the Financed Vehicles.
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(x) The Contracts are chattel paper, as defined in the UCC in the
State of New Jersey.
(h) The Representative shall have received a written opinion of
in-house General Counsel of the Guarantor, or other counsel satisfactory to
the Representative in its reasonable judgment, dated the Closing Date, in
substantially the form set forth below, with such changes therein as the
Representative and counsel for the Underwriters shall reasonably agree:
(i) The Guarantor has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with the corporate power and corporate authority to carry on
its businesses and own its properties as described or incorporated in
the Prospectus and to perform its obligations under this Agreement and
the Limited Guarantee, and is duly qualified and licensed and in good
standing in each jurisdiction where its business requires such
qualification or licensing.
(ii) This Agreement and the Limited Guarantee have been duly
authorized, executed and delivered by the Guarantor and each is a
valid and binding obligation of the Guarantor enforceable against the
Guarantor in accordance with its terms, except that (A) such
enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, (B) such enforcement may be limited by
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law), and (C) in the case of
the Limited Guarantee, the enforceability as to rights to indemnity
thereunder may be limited under applicable law.
(iii) The signing of the Registration Statement by the Guarantor
is within the corporate power of the Guarantor and has been duly
authorized by all necessary corporate action on the part of the
Guarantor; neither the issue and sale of the Limited Guarantee, nor
the consummation of the transactions contemplated herein and the
fulfillment of the terms hereof, or the performance by the Guarantor
of its obligations under the Limited Guarantee, or the grant of the
security interest in the Collateral to the Trustee pursuant to the
Indenture will, to the best of such counsel's knowledge, conflict with
or constitute a breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
asset of the
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Guarantor pursuant to, any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Guarantor is a party or by which it may be bound or to which the
property or assets of the Guarantor are subject (which material
contracts, indentures, mortgages, loan agreements, notes, leases and
other such instruments have been identified by the Guarantor to such
counsel), nor will such action result in any violation of the
provisions of the certificate of incorporation or by-laws of the
Guarantor or, to the best of such counsel's knowledge, any law,
administrative regulation or administrative or court decree of any
state or federal courts, regulatory bodies, other body, governmental
entity or arbitrator having jurisdiction over the Guarantor.
(iv) To the best of such counsel's knowledge, no filing or
registration with or notice to or consent, approval, authorization or
order of any New York or federal court or governmental authority or
agency is required for the consummation by the Guarantor of the
transactions contemplated by this Agreement or the Limited Guarantee,
except such as may be required under the Act or the Rules and
Regulations, or state securities or Blue Sky laws.
(v) There are no legal or governmental proceedings pending to
which the Guarantor is a party or of which any property of the
Guarantor is the subject, and no such proceedings are known by such
counsel to be threatened or contemplated by governmental authorities
or threatened by others, (A) that are required to be disclosed in the
Registration Statement or (B)(1) asserting the invalidity of all or
part of this Agreement or the Limited Guarantee, (2) seeking to
prevent the issuance of the Limited Guarantee, (3) that could
materially and adversely affect the Guarantor's obligations under this
Agreement or the Limited Guarantee or (4) seeking to affect adversely
the federal or state income tax attributes of the Securities.
(vi) The documents incorporated by reference in the Registration
Statement and Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects
with the requirements of the Exchange Act and the rules and
regulations of the Commission promulgated under the Exchange Act,
except as to the financial statements and other financial and
statistical data included therein, to which such counsel does not
express any opinion.
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(vii) The conditions to the use by the Guarantor of a
registration statement on Form S-3 under the Act as set forth in the
General Instructions to Form S-3 have been satisfied with respect to
the Registration Statement and the Prospectus. To the best of such
counsel's knowledge, there are no contracts or documents of the
Guarantor which are required to be filed as exhibits to the
Registration Statement pursuant to the Act or the Rules and
Regulations including any documents incorporated by reference pursuant
to Item 12 of Form S-3 which were filed under the Exchange Act which
have not been so filed.
(viii) The Limited Guarantee is a senior, general, unsecured
obligation of the Guarantor that ranks pari passu with all other
senior, general, unsecured obligations of the Guarantor.
(i) The Representative shall have received a written opinion of
Winston & Strawn, counsel to CIT GP, dated the Closing Date, in
substantially the form set forth below, with such changes therein as
counsel for the Underwriters shall reasonably agree:
(i) CIT GP has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Illinois,
with the corporate power and corporate authority to own its assets and
to transact the business in which it is currently engaged and to
perform its obligations under the Trust Agreement, and is duly
qualified and licensed and in good standing in each jurisdiction where
its business requires such qualification or licensing.
(ii) The Trust Agreement has been duly authorized, executed and
delivered by CIT GP and is a valid and binding obligation of CIT GP
enforceable against CIT GP in accordance with its terms, except that
(A) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (B) such
enforcement may be limited by general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law).
(iii) The performance by CIT GP of its obligations under the
Trust Agreement will not, to the best of such counsel's knowledge,
conflict with or constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or
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encumbrance upon any property or asset of CIT GP pursuant to, any
material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which CIT GP is a party or by which it may be
bound or to which the properto orgatiots under the
Trust Agreement will not, to the best of such counsel's knowledge,
conflict with or constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or
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encumbrance upon any property or asset of CIT GP pursuant to, any
material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which CIT GP is a party or by which it may be
ry bodies, other body, governmental entity or
arbitrator having jurisdiction over CIT GP.
(iv) To the best of such counsel's knowledge, no filing or
registration with or notice to or consent, approval, authorization or
order of any Illinois or federal court or governmental authority or
agency is required for the consummation by CIT GP of the transactions
contemplated by the Trust Agreement, except such as may be required
under the Act or the Rules and Regulations, or state securities or
Blue Sky laws.
(v) There are no legal or governmental proceedings pending to
which CIT GP is a party or of which any property of CIT GP is the
subject, and no such proceedings are known by such counsel to be
threatened or contemplated by governmental authorities or threatened
by others, (A) that are required to be disclosed in the Registration
Statement or (B)(1) asserting the invalidity of all or part of the
Trust Agreement, (2) that could materially and adversely affect CIT
GP's obligations under the Trust Agreement or (3) seeking to affect
adversely the federal or state income tax attributes of the
Securities.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the Federal law of the United States of America and
the laws of the State of Illinois.
(j) The Representative shall have received a written opinion of
Lowenstein, Sandler, Kohl, Fisher and Boylan, special local New Jersey
counsel for the Seller, the Guarantor and CITSF, dated the Closing Date, in
form and substance
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satisfactory to the Representative and counsel for the Underwriters, to the
effect that:
(i) The security interest of the Trustee in the Contracts and in
the proceeds thereof will be created, attached and perfected and will
constitute a first priority perfected security interest upon the
taking of possession of the Contracts by CITSF as custodian for the
Trustee and upon the filing of UCC financing statements in the offices
of the Secretary of State of the State of New Jersey naming the Seller
as the debtor and the Trustee as the secured party; provided, however,
that (A) for purposes of its opinion in this paragraph such counsel
may assume that (1) the Seller has good title and is the sole owner
and holder of each Contract free and clear of any right of recision,
set-off, defense or counterclaim, charges, security interests or other
rights of any nature and has full right and authority, subject to no
agreement with any other party, to sell, pledge and assign the same,
(2) immediately prior to conveyance thereof to the Seller, CITSF was
the obligee under the Contracts and CITSF has assigned all of its
right, title and interest in the Contracts to the Seller, (3) no
Contract constitutes proceeds of any property subject to a third
party's security interest and (4) that the Seller's chief executive
office is and during the past four months has been in the State of New
Jersey; (B) for purposes of its opinion in this paragraph, such
counsel may assume that (1) the Trustee took the assignment of the
Contracts in good faith for value and without notice or knowledge of
any adverse claims, liens or encumbrances or of any defense against or
claim to the Contracts on the part of any person and (2) the Trustee
gave value for the Contracts and CITSF took possession of the
Contracts as agent for the Trustee in the ordinary course of the
Trustee's business; and (C) such counsel need express no opinion (1)
as to the continuation of a security interest in the Contracts in the
event CITSF relinquishes possession of such Contracts and a subsequent
purchaser takes possession without notice of the Trustee's interest,
(2) as to the continuation of a security interest in the Contracts if
continuation statements are not filed as required by the Sale and
Servicing Agreement, (3) as to the priority of any security interest
in the Contracts against any liens, claims or other interests that
arise by operation of law and do not require any filing or similar
action in order to take priority over perfected security interests,
and (4) as to the conveyance of any Subsequent Contracts unless, upon
the proper filing of
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UCC financing statements describing the Subsequent Contracts, (x) the
assumptions, qualifications and limitations in such opinion shall be
true as to conditions then existing and (y) all searches have been
updated and reveal no liens against any of the Subsequent Contracts.
In addition, because it is not practicable to review each of the
Contracts, in rendering its opinion, such counsel may assume that each
Contract evidences a monetary obligation and a security interest in a
Financed Vehicle that constituted personal property, and not real
property, at the origination thereof.
(ii) Solely insofar as the present laws of the State of New
Jersey and the Federal law of the United States of America are
concerned, in a properly presented and decided case, a court would
conclude that the transfer of the Contracts and the proceeds thereof
by CITSF to the Seller constitute true sales of such Contracts and,
assuming a court would conclude that the Contracts and the proceeds
would not be considered property of the estate of CITSF pursuant to
Section 541 of the Bankruptcy Code, and the Contracts and the proceeds
thereof would not be subject to the automatic stay pursuant to Section
362 of the Bankruptcy Code; provided, however, such counsel need
express no opinion (A) with respect to how long the Seller could be
denied possession of the Contracts before the issues discussed in this
paragraph are finally decided on appeal or other review, (B) with
respect to the availability of a preliminary injunction or temporary
restraining order pursuant to the broad equitable powers granted to a
bankruptcy court and (C) as to the conveyance of any Subsequent
Contracts unless, upon the proper filing of UCC financing statements
describing the Subsequent Contracts, (1) the assumptions,
qualifications and limitations in such opinion shall be true as to
conditions then existing and (2) all searches have been updated and
reveal no liens against any of the Subsequent Contracts.
(iii) Solely insofar as the present laws of the State of New
Jersey and the Federal law of the United States of America are
concerned, in a properly presented and decided case, a court would
conclude that the transfer of the Contracts and the proceeds thereof
by the Seller to the Trust constitute true sales of such Contracts
and, assuming a court would conclude that the Contracts and the
proceeds would not be considered property of the estate of CITSF
pursuant to Section 541 of the Bankruptcy Code, and the
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Contracts and the proceeds thereof would not be subject to the
automatic stay pursuant to Section 362 of the Bankruptcy Code;
provided, however, such counsel need express no opinion (A) with
respect to how long the Trust could be denied possession of the
Contracts before the issues discussed in this paragraph are finally
decided on appeal or other review, (B) with respect to the
availability of a preliminary injunction or temporary restraining
order pursuant to the broad equitable powers granted to a bankruptcy
court and (C) as to the conveyance of any Subsequent Contracts unless,
upon the proper filing of UCC financing statements describing the
Subsequent Contracts, (1) the assumptions, qualifications and
limitations in such opinion shall be true as to conditions then
existing and (2) all searches have been updated and reveal no liens
against any of the Subsequent Contracts.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the Federal law of the United States of America and
the laws of the State of New Jersey.
(k) The Representative shall have received a written opinion of
Schulte Roth & Zabel, special counsel to the Seller, CITSF and CITSF/NY,
dated the Closing Date, in substantially the form set forth below, with
such changes therein as the Representative and counsel for the Underwriters
shall reasonably agree:
(i) The Seller has duly authorized, executed and delivered the
written order to the Owner Trustee to execute and deliver the Issuer
Order to the Trustee. When the Notes have been duly executed,
delivered and authenticated in accordance with the Indenture and
delivered and paid for pursuant to this Agreement, the Notes will be
validly issued, outstanding and entitled to the benefits of the
Indenture, except that (A) enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (B)
enforcement may be limited by general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law).
(ii) The Seller has duly authorized, executed and delivered the
written order to the Owner Trustee
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to execute and deliver the Certificates. When the Certificates have
been executed, and delivered by the Owner Trustee under the Trust
Agreement and paid for pursuant to this Agreement, the Certificates
will be validly issued and outstanding and entitled to the benefits of
the Trust Agreement, except that (A) enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally and (B) enforcement may be limited by general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).
(iii) The Registration Statement became effective under the Act
as of June __, 1995 and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement
or any part thereof or any amendment thereto has been issued under the
Act and no proceeding for that purpose has been instituted or
threatened by the Commission.
(iv) The Indenture has been qualified under the Trust Indenture
Act.
(v) Neither the Trust Agreement nor the Sale and Servicing
Agreement need to be qualified under the Trust Indenture Act. The
Trust is not, and will not as a result of the offer and sale of the
Securities as contemplated in the Prospectus and in this Agreement
become, required to register as an "investment company" under the
Investment Company Act.
(vi) The statements in the Prospectus under the caption "The
Notes," "The Certificates" and "The Purchase Agreement and the Trust
Documents" insofar as such statements purport to summarize certain
terms of the Notes, the Certificates and the Basic Documents, present
a fair summary of such documents.
(vii) To the best of such counsel's knowledge, there are no
contracts or documents of the Seller which are required to be filed as
exhibits to the Registration Statement pursuant to the Act or the
Rules or Regulations which have not been so filed.
(viii) The statements in the Prospectus under the headings
"Certain Federal Income Tax Consequences" and "ERISA Considerations,"
to the extent that they constitute matters of law or legal conclusions
with
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respect thereto, have been prepared or reviewed by such counsel
and are correct in all material respects.
(ix) The registration statement on Form S-1 (No. 33-__________)
and Form S-3 (No. 33-_____) relating to the Offered Securities as of
the Effective Date, the Registration Statement and the Prospectus as
of the date of this Agreement, and any amendment or supplement
thereto, as of its date, complied as to form in all material respects
with the requirements of the Act and the applicable Rules and
Regulations. Such counsel need express no opinion with respect to the
financial statements, the exhibits, annexes and other financial,
statistical, numerical or portfolio data, economic conditions or
financial condition of the portfolio information included in or
incorporated by reference into the registration statement on Form S-1
(No. 33-____________) and Form S-3 (No. 33-____________) relating to
the Offered Securities, the Registration Statement, the Prospectus or
any amendment or supplement thereto.
Such counsel shall state that it has participated in conferences with
officers and representatives of the Seller, the Guarantor, CITSF, counsel
to the Guarantor and CITSF, independent accountants for the Seller and
officers and representatives of the Underwriters, at which conferences
certain of the contents of the Registration Statement and the Prospectus
were discussed and, although such counsel is not passing upon and does not
assume any responsibility whatsoever for, the factual accuracy,
completeness or fairness of the statements contained in the registration
statement on Form S-1 (No. 33-________) and Form S-3 (No. 33-__________)
relating to the Offered Securities, the Registration Statement or
Prospectus (except as stated in Sections 6(h)(vi) and 6(h)(viii) above) and
has made no independent check or verification thereof for the purpose of
rendering this opinion, on the basis of the foregoing (relying as to
materiality to a large extent upon the certificates of officers and other
representatives of the Seller, the Guarantor, CITSF and CITSF/NY), no facts
have come to their attention that leads such counsel to believe that the
registration statement on Form S-1 (No. 33-___________) and Form S-3 (No.
33-__________) relating to the Offered Securities, as of the Effective
Date, the Registration Statement, when it became effective, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus on its date contained or on the
Closing Date contains, any untrue statement of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that such counsel need
express no view with
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respect to the financial statements, tables, schedules, exhibits, annexes
and other financial, statistical, numerical or portfolio data, economic
conditions or financial condition of the portfolio included in or
incorporated by reference into, the Registration Statement or Prospectus.
Said counsel may state that they are admitted to practice only in the
State of New York, that they are not admitted to the Bar in any other State
and are not experts in the law of any other State and to the extent that
the foregoing opinions concern the laws of any other State such counsel may
rely upon the opinion of counsel satisfactory to the Underwriters and
admitted to practice in such jurisdiction. Any opinions relied upon by such
counsel as aforesaid shall be addressed to the Underwriters and shall be
delivered together with the opinion of such counsel, which shall state that
such counsel believes that their reliance thereon is justified.
The Seller shall cause legal counsel to deliver to the Representative
such additional opinions addressing the transfer by the Seller to the
Trustee of its right title and interest in and to the Contracts and other
property included in the Trust on the Closing Date as may be required by
either Rating Agency.
(l) The Representative shall have received the opinion of Schulte Roth
& Zabel, special counsel to the Trust, dated the Closing Date, in form and
substance satisfactory to the Representative and counsel for the
Underwriters, regarding the creation, attachment and perfection of a first
priority security interest in the Collateral in favor of the Trustee on
behalf of the Noteholders. Such opinion may contain such assumptions,
qualifications and limitations as are customary in opinions of this type
and are reasonably acceptable to counsel to the Underwriters. In rendering
such opinion, such counsel may state that they express no opinion as to the
laws of any jurisdiction other than the Federal law of the United States of
America and the laws of the State of New York. To the extent any portion of
such opinion is governed by the laws of the State of New Jersey, such
opinion will be given by Lowenstein, Sandler, Kohl, Fisher and Boylan. To
the extent any portion of such opinion is governed by the laws of the State
of Delaware, such opinion will be given by Richards, Layton & Finger.
(m) The Representative shall have received an opinion of Stroock &
Stroock & Lavan, counsel for the Underwriters, dated the Closing Date, with
respect to the validity of the Securities and such other related matters as
the Representative shall require and the Seller shall have furnished or
caused to be furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
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(n) The Representative shall have received an opinion of counsel to
the Trustee, dated the Closing Date, in form and substance satisfactory to
the Representative and counsel for the Underwriters, to the effect that:
(i) The Trustee is a banking corporation validly existing under
the laws of the State of [New York].
(ii) The Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Indenture and
has taken all necessary action to authorize the execution, delivery
and performance by it of the Indenture.
(iii) The Indenture has been duly executed and delivered by the
Trustee and constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms,
except that such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation, or other similar laws
applicable to banking corporations affecting the enforcement of
creditors' rights generally, and by general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
(iv) The Notes have been duly authenticated by the Trustee in
accordance with the terms of the Indenture.
(o) The Representative shall have received an opinion of
_____________________, counsel to the Owner Trustee, dated the Closing
Date, in form and substance satisfactory to the Representative and counsel
for the Underwriters, to the effect that:
(i) The Owner Trustee is a [national banking association duly
incorporated and organized and validly existing under the laws of the
United States.]
(ii) The Owner Trustee has the full corporate trust power to
accept the office of owner trustee under the Trust Agreement and to
enter into and perform its obligations under the Trust Agreement, the
Sale and Servicing Agreement and the [Co-Trustee Agreement] and, on
behalf of the Trust, under the Indenture and the Sale and Servicing
Agreement.
(iii) The execution and delivery of the Trust Agreement, the Sale
and Servicing Agreement [and the
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Co-Trustee Agreement] and, on behalf of the Trust, of the Indenture
and the Sale and Servicing Agreement, and the performance by the Owner
Trustee of its obligations under the Trust Agreement and the Sale and
Servicing Agreement and the [Co-Trustee Agreement], as well as the
performance by the Owner Trustee of its obligations on behalf of the
Trust under the Indenture and the Sale and Servicing Agreement have
been duly authorized by all necessary action of the Owner Trustee and
each has been duly executed and delivered by the Owner Trustee.
(iv) The Trust Agreement and the Sale and Servicing Agreement and
the [Co-Trustee Agreement] constitute valid and binding obligations of
the Owner Trustee enforceable against the Owner Trustee in accordance
with their terms, and the Indenture and the Sale and Servicing
Agreement constitute the valid and binding obligations of the Trust
enforceable against the Trust in accordance with their terms.
(v) The execution and delivery by the Owner Trustee of the Trust
Agreement, the Sale and Servicing Agreement and the [Co-Trustee
Agreement] and, on behalf of the Trust, of the Indenture and the Sale
and Servicing Agreement do not require any consent, approval or
authorization of, or any registration or filing with, any applicable
governmental authority.
(vi) Each of the Notes and the Certificates has been duly
executed and delivered by the Owner Trustee, on behalf of the Trust.
(vii) Neither the consummation by the Owner Trustee of the
transactions contemplated in the Sale and Servicing Agreement, the
Indenture, the Trust Agreement or the [Co-Trustee Agreement], nor the
fulfillment of the terms thereof by the Owner Trustee will conflict
with, result in a breach or violation of, or constitute a default
under any law or the charter, by-laws or other organizational
documents of the Owner Trustee or the terms of any indenture or other
agreement or instrument known to such counsel and to which the Owner
Trustee or any of its subsidiaries is a party or is bound or any
judgment, order or decree known to such counsel to be applicable to
the Owner Trustee or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over the Owner Trustee or any of its subsidiaries.
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(viii) There are no actions, suits or proceedings pending or, to
the best of such counsel's knowledge after due inquiry, threatened
against the Owner Trustee (as owner trustee under the Trust Agreement
or in its individual capacity) before or by any governmental authority
that might materially and adversely affect the performance by the
Owner Trustee of its obligations under, or the validity or
enforceability of, the Trust Agreement, the Sale and Servicing
Agreement or the [Co-Trustee Agreement], as applicable.
(ix) The execution, delivery and performance by the Owner Trustee
of the Sale and Servicing Agreement, the Indenture, the Trust
Agreement or the [Co-Trustee Agreement] will not subject any of the
property or assets of the Trust or any portion thereof, to any lien
created by or resulting from any actions of the Owner Trustee that are
unrelated to the transactions contemplated in such agreements.
(p) The Representative shall have received an opinion of Richards,
Layton & Finger, special Delaware counsel for the Trust, dated the Closing
Date, in form and substance satisfactory to the Representative and counsel
for the Underwriters, to the effect that:
(i) The Trust Agreement constitutes the valid and binding
obligation of the Owner Trustee, [the Delaware Trustee] and the
Seller, enforceable against the Owner Trustee, [the Delaware Trustee]
and the Seller in accordance with its terms subject to (i) applicable
bankruptcy, insolvency, moratorium, receivership, reorganization,
fraudulent conveyance and similar laws relating to and affecting the
rights and remedies of creditors generally, and (ii) principles of
equity (regardless of whether considered and applied in a proceeding
in equity or at law).
(ii) The Trust has been duly formed and is validly existing as a
business trust under the Business Trust Statute. The Trust Agreement
authorizes the Trust to execute and deliver the Trust Agreement, the
Indenture and the Sale and Servicing Agreement, to issue the Notes and
the Certificates and to grant the Trust Estate to the Trustee as
security for the Notes.
(iii) Assuming that the Certificates have been duly executed and
issued by the Trust and duly authenticated by the Owner Trustee in
accordance with the Trust Agreement and delivered to and paid for
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pursuant to the Underwriting Agreement, the Certificates have been
validly issued and are entitled to the benefits of the Trust
Agreement.
(iv) To the extent that Article 9 of the Uniform Commercial Code
as in effect in the State of Delaware (the "Delaware UCC") is
applicable (without regard to conflicts of laws principles), and
assuming that the security interest created by the Indenture in the
Contracts has been duly created and has attached, upon the filing of a
UCC-1 financing statement with the Secretary of State of the State of
Delaware, the Trustee will have a perfected security interest in such
Contracts and the proceeds thereof, and such security interest will be
prior to any other security interest that is perfected solely by the
filing of financing statements under the Delaware UCC, excluding
purchase money security interests under ss. 9-312(4) of the Delaware
UCC and temporarily perfected security interests in proceeds under ss.
9-306(3) of the Delaware UCC.
(v) No re-filing or other action is necessary under the Delaware
UCC in order to maintain the perfection of such security interest
except for the filing of continuation statements at five year
intervals.
(vi) Under ss. 3805(b) of the Business Trust Statute, no creditor
of any Certificateholder shall have any right to obtain possession of,
or otherwise exercise legal or equitable remedies with respect to, the
property of the Trust except in accordance with the terms of the Trust
Agreement.
(vii) Under ss. 3805(c) of the Business Trust Statute, and
assuming that the Sale and Servicing Agreement conveys good title to
the Contracts to the Trust as a true sale and not as a security
arrangement, the Trust, rather than the Certificateholders, is the
owner of the Contracts.
[(viii) The Delaware Trustee is not required to hold legal title
to the Trust Estate in order for the Trust to qualify as a business
trust under the Act.]
(ix) The execution and delivery by the Owner Trustee [or the
Delaware Trustee] of the Trust Agreement and, on behalf of the Trust,
the Indenture and the Sale and Servicing Agreement, do not require any
consent, approval or authorization of, or any registration or filing
with, any governmental
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authority of the State of Delaware, except for the filing of the
Certificate of Trust with the Secretary of State.
(x) Neither the consummation by the Owner Trustee [or the
Delaware Trustee] of the transactions contemplated in the Trust
Agreement or, on behalf of the Trust, the transactions contemplated in
the Trust Agreement, the Indenture and the Sale and Servicing
Agreement nor the fulfillment of the terms thereof by the Owner
Trustee [or the Delaware Trustee] will conflict with or result in a
breach or violation of any law of the State of Delaware.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion, such
counsel may state that they express no opinion as to the laws of any
jurisdiction other than the Federal law of the United States of America and
the laws of the State of Delaware.
(q) The Notes shall have been rated "____" by Moody's and "____" by
S&P, and the Certificates shall have been rated at least "____" by Moody's
and "____" by S&P.
(r) The Representative shall have received copies of each opinion of
counsel delivered to either Rating Agency, together with a letter addressed
to the Representative, dated the Closing Date, to the effect that each
Underwriter may rely on each such opinion to the same extent as though such
opinion was addressed to each as of its date.
(s) The Representative shall have received evidence satisfactory to it
and counsel for the Underwriters that, on or before the Closing Date, UCC-1
financing statements have been filed in the appropriate filing offices
reflecting (1) the transfer of the interest in the Contracts and the
proceeds thereof (A) from CITSF/NY to CITSF, to the extent such Contracts
have been transferred to CITSF from CITSF/NY, (B) from CITSF to the Seller,
(C) from the Seller to the Owner Trustee, on behalf of the Trust, or the
Trust, as the case may be, and (2) the grant of the security interest by
the Trust in the Contracts and the proceeds thereof to the Trustee.
(t) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they reasonably may require
for the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein
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contained; and all proceedings taken by the Seller in connection with the
issuance and sale of the Securities as herein contemplated shall be in form
and substance satisfactory to the Representative and counsel for the
Underwriters.
7. Indemnification and Contribution. (a) CIT and CITSF will, jointly and
severally, indemnify and hold each Underwriter harmless against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that CIT and CITSF will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Seller, the Guarantor or
CITSF by any Underwriter through the Representative specifically for use therein
it being understood and agreed that the only such information furnished by any
Underwriter consists of the Underwriters' Information.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Seller, the Guarantor and CITSF against any losses, claims, damages
or liabilities to which the Seller, the Guarantor or CITSF may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus or arise out of or are based upon
the omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Seller, the
Guarantor or CITSF by such Underwriter through the Representative specifically
for use therein, and will reimburse any legal or other expenses
-35-
<PAGE>
reasonably incurred by the Seller, the Guarantor or CITSF in connection with
investigating or defending any such action or claim as such expenses are
incurred, it being understood and agreed that only such information furnished by
any Underwriter consists of the following information contained in the
Prospectus: (i) the last paragraph at the bottom of the cover page concerning
the terms of the offering by the Underwriters, (ii) the legend concerning
over-allotments and (iii) the information contained under the caption
"Underwriting" (the "Underwriters' Information").
(c) Promptly after receipt by an indemnified party under this Section of
written notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and after acceptance by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above in such proportion as is
appropriate to reflect not only the relative benefits received by the Seller,
the Guarantor and CITSF on the one hand and the Underwriters on the other from
-36-
<PAGE>
the offering of the Offered Securities but also the relative fault of the
Seller, the Guarantor and CITSF on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Seller, the Guarantor and
CITSF on the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering of the Offered
Securities (before deducting expenses) received by the Seller, the Guarantor and
CITSF bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Seller, the Guarantor, CITSF or by the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Seller, the Guarantor and CITSF under this
Section shall be in addition to any liability which the Seller, the Guarantor
and CITSF may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Seller, the Guarantor or CITSF, to each officer of the Seller,
the Guarantor or CITSF who has signed the Registration Statement and to each
person, if any, who controls the Seller, the Guarantor or CITSF within the
meaning of the Act.
-37-
<PAGE>
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Seller, the Guarantor and CITSF or their respective officers and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation or statement as to the results
thereof, made by or on behalf of any Underwriter, the Seller, the Guarantor,
CITSF or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Securities.
If this Agreement is terminated pursuant to Section 9 or if for any reason the
purchase of the Securities by the Underwriters is not consummated, the Seller,
the Guarantor, CITSF and CITSF/NY shall remain responsible for the expenses to
be paid or reimbursed by it pursuant to Section 5 hereof and the respective
obligations of the Seller, the Guarantor, CITSF and the Underwriters pursuant to
Section 7 hereof shall remain in effect. If the purchase of the Securities by
the Underwriters is not consummated for any reason other than solely because of
the termination of this Agreement pursuant to Section 9 or the occurrence of any
event specified in clauses (iii), (iv) or (v) of Section 6(d) hereof, the
Seller, the Guarantor and CITSF will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Securities.
9. Failure to Purchase the Securities. If any Underwriter or Underwriters
default in their obligations to purchase its portion of the Notes and/or the
Certificates hereunder and the aggregate principal amount of the Securities that
such defaulting Underwriter or Underwriters agreed but failed to purchase does
not exceed 10% of the total principal amount of the Securities, the
Representative may make arrangements satisfactory to the Seller, the Guarantor
and CITSF for the purchase of such Notes or Certificates by other persons,
including any of the Underwriters, but if no such arrangements are made by the
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Notes
and/or the Certificates that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount of the Notes and/or the Certificates with respect to such
default or defaults exceeds 10% of the total principal amount of the Securities
and arrangements satisfactory to the Representative, the Seller, the Guarantor
and CITSF for the purchase of such Notes and/or Certificates by other persons
are not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Seller, the
Guarantor or CITSF, except as provided in Section 8. As used in
-38-
<PAGE>
this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter or Underwriters from liability for its default.
10. Notices. All communications hereunder will be in writing and, if sent
to the Representative or the Underwriters, will be mailed, delivered or sent by
facsimile transmission and confirmed to the Representative at Park Avenue Plaza,
New York, New York 10055, Attention: Investment Banking Department--
Transactions Advisory Group (facsimile number (212) 318-0532); if sent to the
Seller, will be mailed, delivered or sent by facsimile transmission and
confirmed to it at The CIT Group Securitization Corporation II, 650 CIT Drive,
Livingston, New Jersey 07039, Attention: James J. Egan, Jr., President
(facsimile number (201) 740-5410); if sent to CIT, will be mailed, delivered or
sent by facsimile transmission and confirmed to it by The CIT Group Holdings,
Inc., 1211 Avenue of the Americas, New York, New York 10036, Attention: Joseph
J. Carrol, Executive Vice President and Chief Financial Officer (facsimile
number (212) 536-1971); and if sent to CITSF, will be mailed, delivered or sent
by facsimile transmission and confirmed to it at The CIT Group/Sales Financing,
Inc., 650 CIT Drive, Livingston, New Jersey 07039, Attention: James J. Egan,
Jr., President (facsimile number (201) 740-5410).
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
12. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with the transactions described in this
Agreement, and any action taken by Representative under this Agreement will be
binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts each of which shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
-39-
<PAGE>
If the foregoing is in accordance with the Representative's understanding
of our agreement, kindly sign and return to us a counterpart hereof, whereupon
it will become a binding agreement among the Seller, CIT, CITSF and the several
Underwriters in accordance with its terms.
Very truly yours,
THE CIT GROUP SECURITIZATION CORPORATION II
By:________________________________
Name:
Title:
THE CIT GROUP HOLDINGS, INC.
By:________________________________
Name:
Title:
THE CIT GROUP/SALES FINANCING, INC.
By:________________________________
Name:
Title:
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written:
CS FIRST BOSTON CORPORATION
By:____________________________
Name:
Title:
Acting on behalf of itself
and as the Representative
of the several Underwriters.
- 40 -
<PAGE>
SCHEDULE I
Initial Principal
Amount of
Underwriter Notes
----------- -----------------
CS First Boston Corporation ................................. $
--------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated .............................................
--------------
Total .............................................. $
==============
Initial Principal
Amount of
Underwriter Certificates
----------- -----------------
CS First Boston Corporation ................................. $
Merrill Lynch, Pierce, Fenner & Smith
Incorporated .............................................
--------------
Total .............................................. $
==============
<PAGE>
SCHEDULE II
Locations of Chief Executive Offices and Records
[To be completed]
Exhibit 4.1
Form of Indenture
<PAGE>
================================================================================
THE CIT RV OWNERS TRUST 1995-A
Class A ____% Asset Backed Notes
------------------------------------
INDENTURE
Dated as of [June 1, 1995]
------------------------------------
[ ],
a national banking association,
Indenture Trustee
================================================================================
<PAGE>
<TABLE>
<CAPTION>
CROSS-REFERENCE TABLE
==========================================================================================================================
TIA Indenture
Section Section
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
310(a)(1) ........................................ 6.11
(a)(2) ........................................ 6.11
(a)(3) ........................................ 6.10
(a)(4) ........................................ 6.14
(b) ........................................ 6.11
(c) ........................................ N.A.
311(a) ........................................ 6.12
(b) ........................................ 6.12
(c) ........................................ N.A.
312(a)) ........................................ 7.1, 7.2
(b) ........................................ 7.2
(c) ........................................ 7.2
313(a) ........................................ 7.4(a), 7.4(b)
(b)(1) ........................................ 7.4(a)
(b)(2) ........................................ 7.4(a)
(c) ........................................ 7.4(a)
(d) ........................................ 7.4(a)
314(a) ........................................ 7.3(a), 3.9
(b) ........................................ 3.6
(c)(1) ........................................ 2.2, 2.9, 4.1, 11.1
(c)(2) ........................................ 11.1(a)
(c)(3) ........................................ 11.1(a)
(d) ........................................ 2.9, 11.1(b)
(e) ........................................ 11.1(a)
(f) ........................................ 11.1(a)
315(a) ........................................ 6.1(b)
(b) ........................................ 6.5
(c) ........................................ 6.1(a)
(d) ........................................ 6.2, 6.1(c)
(e) ........................................ 5.13
316(a) last ........................................
sentence ........................................ 1.1
(a)(1)(A) ........................................ 5.11
(a)(1)(B) ........................................ 5.12
(a)(2) ........................................ Omitted
316(b), (c) ........................................ 5.7
317(a)(1) ........................................ 5.3(b)
(a)(2) ........................................ 5.3(d)
(b) ........................................ 3.3
318(a) ........................................ 11.7
N.A. means Not Applicable. 11.7
==========================================================================================================================
Note: This cross reference table shall not, for any purpose, be deemed to be part of this
Indenture.
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
<S> <C> <C>
SECTION 1.1 Definitions............................................................................... 1
SECTION 1.2 Incorporation by Reference of Trust Indenture Act......................................... 1
ARTICLE II
THE NOTES
SECTION 2.1 Form...................................................................................... 2
SECTION 2.2 Execution Authentication and Delivery..................................................... 2
SECTION 2.3 Temporary Notes........................................................................... 3
SECTION 2.4 Registration; Registration of Transfer and Exchange of Notes.............................. 3
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes................................................ 4
SECTION 2.6 Persons Deemed Noteholders................................................................ 5
SECTION 2.7 Payment of Principal and Interest......................................................... 5
SECTION 2.8 Cancellation of Notes..................................................................... 6
SECTION 2.9 Release of Collateral..................................................................... 6
SECTION 2.10 Book-Entry Notes.......................................................................... 7
SECTION 2.11 Notices to Clearing Agency................................................................ 7
SECTION 2.12 Definitive Notes.......................................................................... 7
SECTION 2.13 Seller as Noteholder...................................................................... 8
SECTION 2.14 Tax Treatment............................................................................. 8
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest......................................................... 8
SECTION 3.2 Maintenance of Agency Office ............................................................. 8
SECTION 3.3 Money for Payments To Be Held in Trust.................................................... 8
SECTION 3.4 Existence................................................................................. 10
SECTION 3.5 Protection of Trust Estate; Acknowledgment of Pledge...................................... 10
SECTION 3.6 Opinions as to Trust Estate............................................................... 10
SECTION 3.7 Performance of Obligations; Servicing of Contracts........................................ 11
SECTION 3.8 Negative Covenants........................................................................ 12
SECTION 3.9 Annual Statement as to Compliance......................................................... 12
SECTION 3.10 Consolidation, Merger, etc. of Issuer; Disposition of Trust Assets........................ 12
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 3.11 Successor or Transferee................................................................... 14
SECTION 3.12 No Other Business......................................................................... 14
SECTION 3.13 No Borrowing.............................................................................. 15
SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities......................................... 15
SECTION 3.15 Servicer's Obligations.................................................................... 15
SECTION 3.16 Capital Expenditures...................................................................... 15
SECTION 3.17 Removal of Servicer....................................................................... 15
SECTION 3.18 Restricted Payments....................................................................... 15
SECTION 3.19 Notice of Events of Default............................................................... 16
SECTION 3.20 Further Instruments and Acts.............................................................. 16
SECTION 3.21 Representations and Warranties by the Issuer to the
Indenture Trustee......................................................................... 16
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture................................................... 16
SECTION 4.2 Application of Trust Money................................................................ 17
SECTION 4.3 Repayment of Monies Held by Paying Agent.................................................. 17
SECTION 4.4 Duration of Position of Indenture Trustee................................................. 17
ARTICLE V
DEFAULT AND REMEDIES
SECTION 5.1 Events of Default......................................................................... 18
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment........................................ 19
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee......................................................................... 19
SECTION 5.4 Remedies; Priorities...................................................................... 21
SECTION 5.5 Optional Preservation of the Contracts.................................................... 22
SECTION 5.6 Limitation of Suits....................................................................... 22
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal
and Interest.............................................................................. 23
SECTION 5.8 Restoration of Rights and Remedies........................................................ 23
SECTION 5.9 Rights and Remedies Cumulative............................................................ 23
SECTION 5.10 Delay or Omission Not a Waiver............................................................ 23
SECTION 5.11 Control by Noteholders.................................................................... 24
SECTION 5.12 Waiver of Past Defaults................................................................... 24
SECTION 5.13 Undertaking for Costs..................................................................... 24
SECTION 5.14 Waiver of Stay or Extension Laws.......................................................... 25
SECTION 5.15 Action on Notes........................................................................... 25
SECTION 5.16 Performance and Enforcement of Certain Obligations........................................ 25
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE VI
THE INDENTURE TRUSTEE
<S> <C> <C>
SECTION 6.1 Duties of Indenture Trustee............................................................... 26
SECTION 6.2 Rights of Indenture Trustee............................................................... 27
SECTION 6.3 Indenture Trustee May Own Notes........................................................... 27
SECTION 6.4 Indenture Trustee's Disclaimer............................................................ 28
SECTION 6.5 Notice of Defaults........................................................................ 28
SECTION 6.6 Reports by Indenture Trustee to Holders................................................... 28
SECTION 6.7 Compensation; Indemnity................................................................... 28
SECTION 6.8 Replacement of Indenture Trustee.......................................................... 28
SECTION 6.9 Merger or Consolidation of Indenture Trustee.............................................. 29
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee......................... 30
SECTION 6.11 Eligibility; Disqualification............................................................. 31
SECTION 6.12 Preferential Collection of Claims Against Issuer.......................................... 31
SECTION 6.13 Representations and Warranties of Indenture Trustee....................................... 31
SECTION 6.14 Indenture Trustee May Enforce Claims Without Possession of Notes.......................... 31
SECTION 6.15 Suit for Enforcement...................................................................... 32
SECTION 6.16 Rights of Noteholders to Direct Indenture Trustee......................................... 32
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses
of Noteholders............................................................................ 32
SECTION 7.2 Preservation of Information Communications to Noteholders................................. 32
SECTION 7.3 Reports by Issuer......................................................................... 33
SECTION 7.4 Reports by Trustee........................................................................ 33
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money....................................................................... 33
SECTION 8.2 Designated Accounts; Payments............................................................. 34
SECTION 8.3 General Provisions Regarding Accounts..................................................... 34
SECTION 8.4 Release of Trust Estate................................................................... 35
SECTION 8.5 Opinion of Counsel........................................................................ 35
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders.................................... 35
SECTION 9.2 Supplemental Indentures With Consent of Noteholders....................................... 36
SECTION 9.3 Execution of Supplemental Indentures...................................................... 38
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 9.4 Effect of Supplemental Indenture.......................................................... 38
SECTION 9.5 Conformity with Trust Indenture Act....................................................... 38
SECTION 9.6 Reference in Notes to Supplemental Indentures............................................. 38
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption................................................................................ 38
SECTION 10.2 Form of Redemption Notice................................................................. 39
SECTION 10.3 Notes Payable on Redemption Date.......................................................... 39
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc................................................. 39
SECTION 11.2 Form of Documents Delivered to Indenture Trustee.......................................... 41
SECTION 11.3 Acts of Noteholders....................................................................... 41
SECTION 11.4 Notices, etc., to Indenture Trustee Issuer and Relating Agencies.......................... 42
SECTION 11.5 Notices to Noteholders; Waiver............................................................ 43
SECTION 11.6 Alternate Payment and Notice Provisions................................................... 43
SECTION 11.7 Conflict with Trust Indenture Act......................................................... 43
SECTION 11.8 Effect of Headings and Table of Contents.................................................. 43
SECTION 11.9 Successors and Assigns.................................................................... 44
SECTION 11.10 Separability.............................................................................. 44
SECTION 11.11 Benefits of Indenture..................................................................... 44
SECTION 11.12 Legal Holidays............................................................................ 44
SECTION 11.13 GOVERNING LAW............................................................................. 44
SECTION 11.14 Counterparts.............................................................................. 44
SECTION 11.15 Recording of Indenture.................................................................... 44
SECTION 11.16 No Recourse............................................................................... 44
SECTION 11.17 No Petition............................................................................... 45
SECTION 11.18 Inspection................................................................................ 45
SECTION 11.19 Indemnification by and Reimbursement of the Servicer...................................... 46
Exhibit A - Form of Asset Backed Notes
</TABLE>
-v-
<PAGE>
INDENTURE, dated as of [June 1, 1995], between THE CIT RV OWNER TRUST
1995-A, a Delaware business trust (the "Issuer"), and [
], a national banking association, as trustee and
not in its individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Notes:
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date, as
trustee for the benefit of the Noteholders and (only to the extent expressly
provided herein) the Certificateholders, all of the Issuer's right, title and
interest in and to (i) the Contracts (ii) all monies received under the Initial
Contracts on or after the Initial Cut-off Date and under the Subsequent
Contracts on or after the related Subsequent Cut-off Date; (iii) such amounts as
from time to time may be held in one or more accounts established and maintained
by the Servicer pursuant to the Sale and Servicing Agreement (including all
investments in such accounts and all income from the funds therein and all
proceeds thereof); (iv) all monies on deposit in the Pre-Funding Account, the
Capitalized Interest Account and the Reserve Account (including all investments
in such accounts and all income from the funds therein and all proceeds
thereof); (v) security interests in the Financed Vehicles and any accessions
thereto; (vi) the right to proceeds from physical damage, credit life and
disability insurance policies, if any, covering individual Financed Vehicles or
Obligors, as the case may be; (vii) the rights of the Trust under the Sale and
Servicing Agreement; and (viii) any and all proceeds of the foregoing
(collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of principal of
and interest on, and any other amounts owing in respect of, the Notes, equally
and ratably without prejudice, priority or distinction, and to secure compliance
with the provisions of this Indenture, all as provided in this Indenture.
The Indenture Trustee, as trustee on behalf of the Noteholders,
acknowledges such Grant, accepts the trusts under this Indenture in accordance
with the provisions of this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Certain capitalized terms used in this Indenture
shall have the respective meanings assigned them in the Sale and Servicing
Agreement (the "Sale and Servicing Agreement") dated as of [June 1, 1995] among
[ ], as trustee (the "Owner Trustee"), The CIT Group
Securitization Corporation II (the "Company" or the "Seller") and The CIT
Group/Sales Financing, Inc., as Servicer ("CITSF"). All references in this
Indenture to Articles, Sections, subsections and exhibits are to the same
contained in or attached to this Indenture unless otherwise specified. All terms
defined in this Indenture shall have the defined meanings when used in any
certificate, notice, Note or other document made or delivered pursuant hereto
unless otherwise defined therein.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, such provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
<PAGE>
"indenture trustee" means the Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by a Commission rule have
the respective meanings assigned to them by such definitions.
ARTICLE II
THE NOTES
SECTION 2.1 Form.
(a) The Class A Notes, with the Indenture Trustee's certificate of
authentication, shall be substantially in the form set forth in Exhibit A, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may, consistently herewith, be determined by the officers executing such
Notes, as evidenced by their execution of the Notes. Any portion of the text of
any Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note.
(b) The Definitive Notes 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 Notes, as
evidenced by their execution of such Notes.
(c) The terms of the Notes as provided for in Exhibit A hereto are part of
the terms of this Indenture.
SECTION 2.2 Execution, Authentication and Delivery.
(a) Each Note shall be dated the date of its authentication, and shall be
issuable as a registered Note in the minimum denomination of $1,000 and in
integral multiples thereof (except for one Note which may be issued in a
denomination other than an integral multiple of $1,000).
(b) The Notes shall be executed on behalf of the Issuer by any of its
Authorized Officers. The signature of any such Authorized Officer on the Notes
may be manual or facsimile.
(c) Notes bearing the manual or facsimile signature of individuals who were
at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
office prior to the authentication and delivery of such Notes or did not hold
such office at the date of such Notes.
(d) The Indenture Trustee, in exchange for the Grant of the Contracts and
the other components of the Trust, simultaneously with the Grant to the
Indenture Trustee of the Contracts, and the constructive delivery to the
Indenture Trustee of the Contracts Files and the other components and assets of
the Trust, shall cause to be authenticated and delivered to or upon the order of
the Issuer, the Class A Notes for original issue in aggregate principal amount
of $_____________. The aggregate principal amount of Notes outstanding at any
time may not exceed $_____________ except as provided in Section 2.5.
(e) No Notes shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form set forth in Exhibit A,
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executed by the Indenture Trustee by the manual signature of one of its
Authorized Officers, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
SECTION 2.3 Temporary Notes.
(a) Pending the preparation of Definitive Notes, if any, the Issuer may
execute, and upon receipt of an Issuer Order the Indenture Trustee shall
authenticate and deliver, such Temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, of the tenor of the Definitive
Notes in lieu of which they are issued and with such variations as are
consistent with the terms of this Indenture as the officers executing such Notes
may determine, as evidenced by their execution of such Notes.
(b) If Temporary Notes are issued, the Issuer shall cause Definitive Notes
to be prepared without unreasonable delay. After the preparation of Definitive
Notes, the Temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the Temporary Notes at the Agency Office of the Issuer to be
maintained as provided in Section 3.2, without charge to the Noteholder. Upon
surrender for cancellation of any one or more Temporary Notes, the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so delivered in exchange, the Temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Notes.
SECTION 2.4 Registration; Registration of Transfer and Exchange of
Notes.
(a) The Issuer shall cause to be kept the Note Register, in which, subject
to such reasonable regulations as the Issuer may prescribe, the Issuer shall
provide for the registration of the Notes and the registration of transfers and
exchanges of the Notes. The Indenture Trustee shall initially be the Note
Registrar for the purpose of registering the Notes and transfers of the Notes as
herein provided. Upon any resignation of any Note Registrar, the Issuer shall
promptly appoint a successor Note Registrar or, if it elects not to make such an
appointment, assume the duties of the Note Registrar.
(b) If a Person other than the Indenture Trustee is appointed by the Issuer
as Note Registrar, the Issuer will give the Indenture Trustee prompt written
notice of the appointment of such Note Registrar and of the location, and any
change in the location, of the Note Register. The Indenture Trustee shall have
the right to inspect the Note Register at all reasonable times and to obtain
copies thereof. The Indenture Trustee shall have the right to rely upon a
certificate executed on behalf of the Note Registrar by an Executive Officer
thereof as to the names and addresses of the Noteholders and the principal
amounts and number of such Notes.
(c) Upon surrender for registration of transfer of any Note at the
Corporate Trust Office of the Indenture Trustee or the Agency Office of the
Issuer (and following the delivery, in the former case, of such Notes to the
Issuer by the Indenture Trustee), the Issuer shall execute, the Indenture
Trustee shall authenticate and the Noteholder shall obtain from the Indenture
Trustee, in the name of the designated transferee or transferees, one or more
new Notes in any authorized denominations, of a like aggregate principal amount.
(d) At the option of the Noteholder, Notes may be exchanged for other Notes
of the same class in any authorized denominations, of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at the Corporate Trust
Office of the Indenture Trustee or the Agency Office of the Issuer (and
following the delivery, in the former case, of such Notes to the
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Issuer by the Indenture Trustee), the Issuer shall execute, and the Indenture
Trustee shall authenticate and the Noteholder shall obtain from the Indenture
Trustee, the Notes which the Noteholder making the exchange is entitled to
receive.
(e) All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee and the Note Registrar,
duly executed by the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by a commercial bank or trust company
located, or having a correspondent located, in the City of New York or the city
in which the Corporate Trust Office of the Indenture Trustee is located, or by a
member firm of a national securities exchange, and such other documents as the
Indenture Trustee may require.
(g) No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Issuer or Indenture Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Notes, other than exchanges pursuant to Sections 2.3 or 9.6 not involving any
transfer.
(h) The preceding provisions of this Section 2.4 notwithstanding, the
Issuer shall not be required to transfer or make exchanges, and the Note
Registrar need not register transfers or exchanges, of Notes that: (i) have been
selected for redemption pursuant to Article X, if applicable; or (ii) are due
for repayment within 15 days of submission to the Corporate Trust Office or the
Agency Office.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If (i) any mutilated Note is surrendered to the Indenture Trustee, or
the Indenture Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Note, and (ii) there is delivered to the Indenture Trustee
such security or indemnity as may be required by it to hold the Issuer and the
Indenture Trustee harmless, then, in the absence of notice to the Issuer, the
Note Registrar or the Indenture Trustee that such Note has been acquired by a
bona fide purchaser, the Issuer shall execute and upon the Issuer's request the
Indenture Trustee shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Note, a replacement Note of a like
class and aggregate principal amount; provided, however, that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall have become or
within seven days shall be due and payable, or shall have been called for
redemption, instead of issuing a replacement Note, the Issuer may make payment
to the Holder of such destroyed, lost or stolen Note when so due or payable or
upon the Redemption Date, if applicable, without surrender thereof.
(b) If, after the delivery of a replacement Note or payment in respect of a
destroyed, lost or stolen Note pursuant to subsection (a), a bona fide purchaser
of the original Note in lieu of which such replacement Note was issued presents
for payment such original Note, the Issuer and the Indenture Trustee shall be
entitled to recover such replacement Note (or such payment) from (i) any Person
to whom it was delivered, (ii) the Person taking such replacement Note from the
Person to whom such replacement Note was delivered; or (iii) any assignee of
such Person, except a bona fide purchaser, and the Issuer and the Indenture
Trustee shall be entitled to recover upon the security or indemnity
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provided therefor to the extent of any loss, damage, cost or expense incurred by
the Issuer or the Indenture Trustee in connection therewith.
(c) In connection with the issuance of any replacement Note under this
Section 2.5, the Issuer may require the payment by the Holder of such Note 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 all fees and
expenses of the Indenture Trustee) connected therewith.
(d) Any duplicate Note issued pursuant to this Section 2.5 in replacement
for any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be found at any time or be enforced by any
Person, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
(e) The provisions of this Section 2.5 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 Notes.
SECTION 2.6 Persons Deemed Noteholders. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the Noteholder for
the purpose of receiving payments of principal of and interest on such Note and
for all other purposes whatsoever, whether or not such Note be overdue, and
neither the Issuer, the Indenture Trustee nor any agent of the Issuer or the
Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.7 Payment of Principal and Interest.
(a) Interest on each class of Notes shall accrue in the manner set forth in
the form of the Class A Notes set forth in Exhibit A at the Class A Rate, and
such interest shall be payable on each Distribution Date as specified in the
form of Class A Note set forth in Exhibit A. Any interest payable on any Note
shall be punctually paid or duly provided for by a deposit by or at the
direction of the Issuer into the Note Distribution Account on the applicable
Distribution Date and shall be paid to the Person in whose name such Note (or
one or more Predecessor Notes) is registered on the applicable Record Date, by
check mailed first-class, postage prepaid to such Person's address as it appears
on the Note Register on such Record Date; provided, however, that, unless and
until Definitive Notes have been issued pursuant to Section 2.12, with respect
to Notes registered on the applicable Record Date in the name of the Depository
(initially, Cede & Co.), payment shall be made by wire transfer in immediately
available funds to the account designated by the Depository.
(b) Prior to the occurrence of an Event of Default and a declaration in
accordance with Section 5.2 that the Notes have become immediately due and
payable, the principal of each class of Notes shall be payable in full on the
Final Scheduled Distribution Date and, to the extent of funds available
therefor, in installments on the Distribution Dates (if any) preceding the Final
Scheduled Distribution Date, in accordance with Section 8.2(c) . All principal
payments on the Notes shall be made pro rata to the Noteholders entitled
thereto. Any principal payable on any Note shall be punctually paid or duly
provided for by a deposit by or at the direction of the Issuer into the Note
Distribution Account on the applicable Distribution Date and shall be paid to
the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the applicable Record Date, by check mailed first-class, postage
prepaid to such Person's address as it appears on the Note Register on such
Record Date; provided, however, that, unless and until Definitive Notes have
been issued pursuant to Section 2.12, with respect to Notes registered on the
Record Date in the name of the Depository (initially, Cede & Co.), payment
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shall be made by wire transfer in immediately available funds to the account
designated by the Depository, except for: (i) the final instalment of principal
on any Note; and (ii) the Redemption Price for any Notes, if so called, which,
in each case, shall be payable as provided herein. The funds represented by any
such checks in respect of interest or principal returned undelivered shall be
held in accordance with Section 3.3.
(c) The entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, if:
(i) an Event of Default shall have occurred and be continuing; and
(ii) the Indenture Trustee or the Noteholders representing not less than a
majority of the aggregate outstanding principal amount of the Notes have
declared the Notes to be immediately due and payable in the manner provided in
Section 5.2.
(d) Following an Event of Default and the acceleration of the Notes as
aforesaid, until such time as all Events of Default have been cured or waived as
provided in Section 5.2(b), all principal payments shall be allocated among the
Holders of all of the Notes pro rata on the basis of the respective aggregate
unpaid principal balances of Notes held by such Holders.
(e) With respect to any Distribution Date on which the final instalment of
principal and interest on a class of Notes is to be paid, the Indenture Trustee
shall notify each Noteholder of record as of the Record Date for such
Distribution Date of the fact that the final instalment of principal of and
interest on such Note is to be paid on such Distribution Date. Such notice shall
be sent (i) on such Record Date by facsimile, if Book-Entry Notes are
outstanding; or (ii) not later than three Business Days after such Record Date
in accordance with Section 11.5(a) if Definitive Notes are outstanding, and
shall specify that such final instalment shall be payable only upon presentation
and surrender of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such instalment. Notices in connection
with redemptions of Notes shall be mailed to Noteholders as provided in Section
10.2.
SECTION 2.8 Cancellation of Notes. All Notes surrendered for payment,
redemption, exchange or registration of transfer shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly canceled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly canceled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes canceled as provided in this Section 2.8, except as expressly
permitted by this Indenture. All canceled Notes may be held or disposed of by
the Indenture Trustee in accordance with its standard retention or disposal
policy as in effect at the time unless the Issuer shall direct by an Issuer
Order that they be destroyed or returned to it; provided, however, that such
Issuer Order is timely and the Notes have not been previously disposed of by the
Indenture Trustee.
SECTION 2.9 Release of Collateral. Subject to Section 11.1, the Indenture
Trustee shall release property from the lien of this Indenture only upon receipt
of an Issuer Request accompanied by an Officers' Certificate, an Opinion of
Counsel and Independent Certificates in accordance with TIA ss.ss.314(c) and
314(d)(1) or an Opinion of Counsel in lieu of such Independent Certificates to
the effect that the TIA does not require any such Independent Certificates.
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SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance, shall be
issued in the form of a typewritten Note or Notes representing the Book-Entry
Notes, to be delivered to The Depository Trust Company, the initial Depository
by or on behalf of the Issuer. Such Note or Notes shall be registered on the
Note Register in the name of the Depository, and no Note Owner shall receive a
Definitive Note representing such Note Owner's interest in such Note, except as
provided in Section 2.12. Unless and until the Definitive Notes have been issued
to Note Owners pursuant to Section 2.12:
(a) the provisions of this Section 2.10 shall be in full force and
effect;
(b) the Note Registrar and the Indenture Trustee shall be entitled
to deal with the Depository for all purposes of this Indenture (including
the payment of principal of and interest on the Notes and the giving of
instructions or directions hereunder) as the sole holder of the Notes and
shall have no obligation to the Note Owners;
(c) to the extent that the provisions of this Section 2.10 conflict
with any other provisions of this Indenture, the provisions of this Section
2.10 shall control;
(d) the rights of the Note Owners shall be exercised only through
the Depository and shall be limited to those established by law and
agreements between such Note Owners and the Depository and/or the
Depository Participants. Unless and until Definitive Notes are issued
pursuant to Section 2.12, the initial Depository shall make book-entry
transfers between the Depository Participants and receive and transmit
payments of principal of and interest on the Notes to such Depository
Participants, pursuant to the Depository Agreement; and
(e) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Holders of Notes evidencing a
specified percentage of the aggregate outstanding principal amount of the
Notes, the Depository shall be deemed to represent such percentage only to
the extent that it has (i) received instructions to such effect from Note
Owners and/or Depository Participants owning or representing, respectively,
such required percentage of the beneficial interest in the Notes; and (ii)
has delivered such instructions to the Indenture Trustee.
SECTION 2.11 Notices to Depository. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Note Owners pursuant to Section
2.12, the Indenture Trustee shall give all such notices and communications
specified herein to be given to Noteholders to the Depository and shall have no
obligation to the Note Owners.
SECTION 2.12 Definitive Notes.
If (i) the Servicer advises the Indenture Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities with respect to the Notes and the Issuer is unable to locate a
qualified successor; (ii) the Servicer, at its option, advises the Indenture
Trustee in writing that it elects to terminate the book-entry system through the
Depository; or (iii) after the occurrence of an Event of Default or a Servicer
Default, Note Owners representing beneficial interests aggregating at least a
majority of the aggregate outstanding principal amount of the Notes advise the
Depository in writing that the continuation of a book-entry system through the
Depository is no longer in the best interests of the Note Owners, then the
Depository shall notify all Note Owners and the Indenture Trustee of the
occurrence of any such event and of the availability of Definitive Notes to Note
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Owners requesting the same. Upon surrender to the Indenture Trustee of the
typewritten Note or Notes representing the Book-Entry Notes by the Depository,
accompanied by registration instructions, the Issuer shall execute and the
Indenture Trustee shall authenticate the Definitive Notes in accordance with the
instructions of the Depository. None of the Issuer, the Servicer, the Note
Registrar or the Indenture Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Notes, the
Indenture Trustee shall recognize the Holders of the Definitive Notes as
Noteholders.
SECTION 2.13 Seller as Noteholder. The Seller in its individual or any
other capacity may become the owner or pledgee of Notes of any class and may
otherwise deal with the Issuer or its affiliates with the same rights it would
have if it were not the Seller.
SECTION 2.14 Tax Treatment. The Issuer and the Indenture Trustee, by
entering into this Agreement, and the Noteholders, by acquiring any Note or
interest therein, (i) express their intention that the Notes qualify under
applicable tax law as indebtedness secured by the Contracts, and (ii) unless
otherwise required by appropriate taxing authorities, agree to treat the Notes
as indebtedness secured by the Contracts for the purpose 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.
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest. The Issuer shall duly and
punctually pay the principal of and interest on the Notes in accordance with the
terms of the Notes and this Indenture. On each Distribution Date and on the
Redemption Date (if applicable), the Issuer shall cause amounts on deposit in
the Note Distribution Account to be distributed to the Noteholders in accordance
with Sections 2.7 and 8.2, less amounts properly withheld under the Code by any
Person from a payment to any Noteholder of interest and/or principal. Any
amounts so withheld shall be considered as having been paid by the Issuer to
such Noteholder for all purposes of this Indenture.
SECTION 3.2 Maintenance of Agency Office. As long as any of the Notes
remains outstanding, the Issuer shall maintain in the Borough of Manhattan, the
City of New York, an office (the "Agency Office"), being an office or agency
where Notes may be surrendered to the Issuer for registration of transfer or
exchange, and where notices and demands to or upon the Issuer in respect of the
Notes and this Indenture may be served. The Issuer hereby initially appoints the
Indenture Trustee to serve as its agent for the foregoing purposes. The Issuer
shall give prompt written notice to the Indenture Trustee of the location, and
of any change in the location, of any such office or agency. If at any time the
Issuer shall fail to maintain any such office or agency or shall fail to furnish
the Indenture Trustee with the address thereof, such surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Indenture
Trustee, and the Issuer hereby appoints the Indenture Trustee as its agent to
receive all such surrenders, notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust.
(a) As provided in Section 8.2(a) and (b), all payments of amounts due and
payable with respect to any Notes that are to be made from amounts withdrawn
from the Note Distribution Account pursuant to Section 8.2(c) shall be made on
behalf of the Issuer by the Indenture Trustee or by another Paying Agent, and no
amounts so withdrawn from the Note Distribution Account for payments of Notes
shall be paid over to the Issuer except as provided in this Section 3.3.
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(b) On or before each Distribution Date or the Redemption Date (if
applicable), the Issuer shall deposit or cause to be deposited in the Note
Distribution Account an aggregate sum sufficient to pay the amounts then
becoming due with respect to the Notes, such sum to be held in trust for the
benefit of the Persons entitled thereto and (unless the Paying Agent is the
Indenture Trustee) shall promptly notify the Indenture Trustee of its action or
failure so to act.
(c) The Issuer shall cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of
this Section 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and pay such sums to such Persons as
herein provided;
(ii) give the Indenture Trustee notice of any default by the Issuer
(or any other obligor upon the Notes) of which it has actual knowledge in
the making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon
the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes
if at any time it ceases to meet the standards required to be met by a
Paying Agent in effect at the time of determination; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
(d) The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
(e) Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed for one year
after such amount has become due and payable shall be discharged from such trust
and be paid to the Issuer on Issuer Request; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Issuer cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining shall be repaid to the Issuer. The Indenture Trustee
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may also adopt and employ, at the expense of the Issuer, any other reasonable
means of notification of such repayment (including, but not limited to, mailing
notice of such repayment to Holders whose Notes have been called but have not
been surrendered for redemption or whose right to or interest in monies due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
SECTION 3.4 Existence. The Issuer shall keep in full effect its existence,
rights and franchises as a business trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer shall keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and shall obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
SECTION 3.5 Protection of Trust Estate; Acknowledgment of Pledge.
(a) The Issuer shall from time to time execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and shall take such other action necessary or advisable to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and the rights of
the Indenture Trustee and the Noteholders in such Trust Estate against
the claims of all persons and parties,
and the Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required by the Indenture Trustee pursuant to this Section 3.5.
(b) The Indenture Trustee acknowledges the pledge by the Issuer to the
Indenture Trustee pursuant to Section [ ] of the Sale and Servicing Agreement of
(i) all of the Issuer's right, title and interest in and to the Reserve Fund and
all proceeds thereof (other than the Investment Earnings thereon), including,
without limitation, all other accounts and investments held from time to time in
the Reserve Fund (whether in the form of deposit accounts, physical property,
book-entry securities, uncertificated securities or otherwise) and [(ii) the
Reserve Fund Initial Deposit and all proceeds thereof (other than the Investment
Earnings thereon)] in order to provide for the timely payment to the
Noteholders, [the Certificateholders] and the Servicer in accordance with
Section [ ] of the Sale and Servicing Agreement, to assure availability of the
amounts maintained in the Reserve Fund for the benefit of the Noteholders, [the
Certificateholders] and the Servicer, and as security for the performance by the
Issuer of its obligations under the Basic Documents.
SECTION 3.6 Opinions as to Trust Estate.
(a) On the Closing Date, the Issuer shall furnish to the Indenture Trustee
an Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording and filing of this
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Indenture, any indentures supplemental hereto and any other requisite documents,
and with respect to the execution and filing of any financing statements and
continuation statements as are necessary to perfect and make effective the lien
and security interest of this Indenture and reciting the details of such action,
or stating that, in the opinion of such counsel, no such action is necessary to
make such lien and security interest effective.
(b) On or before [ ] in each calendar year, beginning
[ ], the Issuer shall furnish to the Indenture Trustee an Opinion
of Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, re-recording and refiling of
this Indenture, any indentures supplemental hereto and any other requisite
documents and with respect to the execution and filing of any financing
statements and continuation statements as is necessary to maintain the lien and
security interest created by this Indenture and reciting the details of such
action or stating that in the opinion of such counsel no such action is
necessary to maintain the lien and security interest created by this Indenture.
Such Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and the execution and filing of any financing statements and
continuation statements that will, in the opinion of such counsel, be required
to maintain the lien and security interest of this Indenture until [ ]
in the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Contracts.
(a) The Issuer shall not take any action and shall use its reasonable
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Trust Estate or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
otherwise expressly provided in this Indenture, the Sale and Servicing Agreement
or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in performing
its duties under this Indenture, and any performance of such duties by a Person
identified to the Indenture Trustee in the Basic Documents or an Officers'
Certificate of the Issuer shall be deemed to be action taken by the Issuer.
Initially, the Issuer has contracted with the Servicer to assist the Issuer in
performing its duties under this Indenture.
(c) The Issuer shall punctually perform and observe all of its obligations
and agreements contained in this Indenture, the Basic Documents and in the
instruments and agreements included in the Trust Estate, including but not
limited to filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by the terms of this Indenture, the
Sale and Servicing Agreement and the Purchase Agreement in accordance with and
within the time periods provided for herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of a Servicer
Default under the Sale and Servicing Agreement, the Issuer shall promptly notify
the Indenture Trustee and the Rating Agencies thereof, and shall specify in such
notice the response or action, if any, the Issuer has taken or is taking with
respect to such default. If a Servicer Default shall arise from the failure of
the Servicer to perform any of its duties or obligations under the Sale and
Servicing Agreement with respect to the Contracts, the Issuer and the Indenture
Trustee shall take all reasonable steps available to them pursuant to the Sale
and Servicing Agreement to remedy such failure.
(e) Without derogating from the absolute nature of the assignment granted
to the Indenture Trustee under this Indenture or the rights of the Indenture
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Trustee hereunder, the Issuer agrees that it shall not, without the prior
written consent of the Indenture Trustee or the Holders of at least a majority
in aggregate outstanding principal amount of the Notes, as applicable in
accordance with the terms thereof, amend, modify, waive, supplement, terminate
or surrender, or agree to any amendment, modification, supplement, termination,
waiver or surrender of, the terms of any Collateral or any of the Basic
Documents, or waive timely performance or observance by the Servicer or the
Seller under the Sale and Servicing Agreement or the Purchase Agreement. If any
such amendment, modification, supplement or waiver shall be so consented to by
the Indenture Trustee or such Holders, as applicable, the Issuer agrees,
promptly following a request by the Indenture Trustee to do so, to execute and
deliver, in its own name and at its own expense, such agreements, instruments,
consents and other documents as the Indenture Trustee may deem necessary or
appropriate in the circumstances.
SECTION 3.8 Negative Covenants. So long as any Notes are Outstanding, the
Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of any of the properties
or assets of the Issuer, except the Issuer may (i) collect, liquidate, sell or
otherwise dispose of Contracts (including Repurchased Contracts and Liquidated
Contracts) and Financed Vehicles, (ii) make cash payments out of the Designated
Accounts and (iii) take other actions, in each case as contemplated by the Basic
Documents;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of the Notes (other than amounts properly withheld
from such payments under the Code or applicable state law) or assert any claim
against any present or former Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Trust Estate;
(c) voluntarily commence any insolvency, readjustment of debt, marshalling
of assets and liabilities or other proceeding, or apply for an order by a court
or agency or supervisory authority for the winding-up or liquidation of its
affairs or any other event specified in Section 5.1(e); or
(d) either (i) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien of this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released from
any covenants or obligations with respect to the Notes under this Indenture
except as may be expressly permitted hereby, (ii) permit any lien, charge,
excise, claim, security interest, mortgage or other encumbrance (other than the
lien of this Indenture) to be created on or extend to or otherwise arise upon or
burden the Trust Estate or any part thereof or any interest therein or the
proceeds thereof (other than tax liens, mechanics' liens and other liens that
arise by operation of law, in each case on a Financed Vehicle and arising solely
as a result of an action or omission of the related Obligor), or (iii) permit
the lien of this Indenture not to constitute a valid first priority security
interest in the Trust Estate (other than with respect to any such tax,
mechanics' or other lien).
SECTION 3.9 Annual Statement as to Compliance. The Issuer shall deliver to
the Indenture Trustee, on or before [ ] of each year, beginning
[ ], an Officer's Certificate signed by an Authorized Officer, dated
as of [ ] of such year, stating that:
(a) a review of the activities of the Issuer during such fiscal year and of
performance under this Indenture has been made under such Authorized Officer's
supervision; and
(b) to the best of such Authorized Officer's knowledge, based on such
review, the Issuer has fulfilled all of its obligations under this Indenture
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throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such Authorized Officer
and the nature and status thereof. A copy of such certificate may be obtained by
any Noteholder by a request in writing to the Issuer addressed to the Corporate
Trust Office of the Indenture Trustee.
SECTION 3.10 Consolidation, Merger, etc. of Issuer; Disposition of Trust
Assets.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving such
consolidation or merger shall be a Person organized and existing under the
laws of the United States of America or any State and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture Trustee, the due
and timely payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this Indenture
on the part of the Issuer to be performed or observed, all as provided
herein;
(ii) immediately after giving effect to such merger or consolidation,
no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction and such Person;
(iv) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(v) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel addressed to the Issuer,
each stating:
(A) that such consolidation or merger and such supplemental
indenture comply with this Section 3.10;
(B) that such consolidation or merger and such supplemental
indenture shall have no material adverse tax consequence to the Trust
or any Noteholder or Certificateholder; and
(C) that all conditions precedent herein provided for in this
Section 3.10 have been complied with, which shall include any filing
required by the Exchange Act.
(b) Except as otherwise expressly permitted by this Indenture or the other
Basic Documents, the Issuer shall not sell, convey, exchange, transfer or
otherwise dispose of any of its properties or assets, including those included
in the Trust Estate, to any Person unless:
(i) the Person that acquires such properties or assets of the Issuer
(A) shall be a United States citizen or a Person organized and existing
under the laws of the United States of America or any State and (B) by an
indenture supplemental hereto, executed and delivered to the Indenture
Trustee, in form satisfactory to the Indenture Trustee:
(1) expressly assumes the due and punctual payment of the
principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture on the
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part of the Issuer to be performed or observed,all as provided herein;
(2) expressly agrees that all right, title and interest so sold,
conveyed, exchanged, transferred or otherwise disposed of shall be
subject and subordinate to the rights of Noteholders;
(3) unless otherwise provided in such supplemental indenture,
expressly agrees to indemnify, defend and hold harmless the Issuer
against and from any loss, liability or expense arising under or
related to this Indenture and the Notes; and
(4) expressly agrees that such Person (or if a group of Persons,
then one specified Person) shall make all filings with the Commission
(and any other appropriate Person) required by the Exchange Act in
connection with the Notes;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction and such Person;
(iv) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken: and
(v) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel addressed to the Issuer,
each stating that:
(A) such sale, conveyance, exchange, transfer or disposition and
such supplemental indenture comply with this Section 3.10;
(B) such sale, conveyance, exchange, transfer or disposition and
such supplemental indenture has no material adverse tax consequence to
the Trust or to any Noteholders or Certificateholders; and
(C) that all conditions precedent herein provided for in this
Section 3.10 have been complied with, which shall include any filing
required by the Exchange Act.
SECTION 3.11 Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.10(a), the Person formed by or surviving such consolidation or merger
(if other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of the
Issuer pursuant to Section 3.10(b), the Trust shall be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of the Issuer with respect to the Notes immediately upon the delivery of written
notice to the Indenture Trustee from the Person acquiring such assets and
properties stating that the Trust is to be so released.
SECTION 3.12 No Other Business.The Issuer shall not engage in any business
or activity other than acquiring, holding and managing the Contracts and the
other assets of the Trust Estate and the proceeds therefrom in the manner
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contemplated by the Basic Documents, issuing the Notes and the Certificates,
making payments on the Notes and the Certificates and such other activities that
are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto, as set forth in Section 2.3 of the Trust Agreement.
SECTION 3.13 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness for money borrowed other than indebtedness for money borrowed in
respect of the Notes or in accordance with the Basic Documents.
SECTION 3.14 Guarantees, Loans, Advances and Other Liabilities. Except as
contemplated by this Indenture or the other Basic Documents, the Issuer shall
not make any loan or advance or credit to, or guarantee (directly or indirectly
or by an instrument having the effect of assuring another's payment or
performance on any obligation or capability of so doing or otherwise), endorse
or otherwise become contingently liable, directly or indirectly, in connection
with the obligations, stocks or dividends of, or own, purchase, repurchase or
acquire (or agree contingently to do so) any stock, obligations, assets or
securities of, or any other interest in, or make any capital contribution to,
any other Person.
SECTION 3.15 Servicer's Obligations. The Issuer shall use its best efforts
to cause the Servicer to comply with its obligations under Sections
[ ] of the Sale and Servicing Agreement.
SECTION 3.16 Capital Expenditures. The Issuer shall not make any
expenditure (whether by long-term or operating lease or otherwise) for capital
assets (either real, personal or intangible property) other than the purchase of
the Contracts and other property and rights from the Seller pursuant to the Sale
and Servicing Agreement.
SECTION 3.17 Removal of Servicer. So long as any Notes are Outstanding,the
Issuer shall not remove the Servicer without cause unless the Rating Agency
Condition shall have been satisfied in connection with such removal.
SECTION 3.18 Restricted Payments. Except for payments of principal or
interest on or redemption of the Notes, so long as any Notes are Outstanding,
the Issuer shall not, directly or indirectly:
(a) pay any dividend or make any distribution (by reduction of capital
or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise, in each case with respect to any ownership or equity
interest or similar security in or of the Issuer or to the Servicer;
(b) redeem, purchase, retire or otherwise acquire for value any such
ownership or equity interest or similar security; or
(c) set aside or otherwise segregate any amounts for any such purpose;
provided, however, that the Issuer may make, or cause to be made, distributions
to the Servicer, the Owner Trustee, the guarantor under the Limited Guarantee,
the holder of the GP Interest and the Certificateholders as permitted by, and to
the extent funds are available for such purpose under, the Sale and Servicing
Agreement or the Trust Agreement. The Issuer shall not, directly or indirectly,
make payments to or distributions from the Collection Account except in
accordance with the Basic Documents.
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SECTION 3.19 Notice of Events of Default. The Issuer agrees to give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder, each Servicer Default, any Insolvency Event with respect to
the Seller, each default on the part of the Seller or the Servicer of their
obligations under the Sale and Servicing Agreement and the Purchase Agreement.
SECTION 3.20 Further Instruments and Acts. Upon request of the Indenture
Trustee, the Issuer shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 3.21 Representations and Warranties by the Issuer to the Indenture
Trustee. The Issuer hereby represents and warrants to the Indenture Trustee as
follows:
(a) Good Title. No Contract has been sold, transferred, assigned or pledged
by the Trust to any Person other than the Indenture Trustee; immediately prior
to the conveyance of the Contracts pursuant to this Agreement, the Trust had
good and marketable title thereto, free of any Lien; and, upon execution and
delivery of this Agreement by the Trust, the Indenture Trustee shall have all of
the right, title and interest of the Trust in, to and under the Contracts, the
unpaid indebtedness evidenced thereby and the collateral security therefor, free
of any Lien; and
(b) All Filings Made. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give the Indenture Trustee a first
perfected ownership interest in the Contracts shall have been made.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture shall
cease to be of further effect with respect to the Notes except as to: (i) rights
of registration of transfer and exchange; (ii) substitution of mutilated,
destroyed, lost or stolen Notes; (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon; (iv) Sections 3.3, 3.4, 3.5, 3.8,
3.10, 3.12, 3.13, 3.19 and 3.21; (v) the rights, obligations and immunities of
the Indenture Trustee hereunder (including the rights of the Indenture Trustee
under Section 6.7 and the obligations of the Indenture Trustee under Sections
4.2 and 4.4); and (vi) the rights of Noteholders as beneficiaries hereof with
respect to the property so deposited with the Indenture Trustee payable to all
or any of them, and the Indenture Trustee, on demand of and at the expense of
the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes, if:
(a) either:
(1) all Notes theretofore authenticated and delivered (other than
(A) Notes that have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 2.5 and (B) Notes for whose
payment money has theretofore been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 3.3) have been
delivered to the Indenture Trustee for cancellation: or
(2) all Notes not theretofore delivered to the Indenture Trustee
for cancellation:
(A) have become due and payable,
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(B) will be due and payable on their respective Final
Scheduled Distribution Dates within one year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving
of notice of redemption by the Indenture Trustee in the name, and
at the expense, of the Issuer,
and the Issuer, in the case of (A), (B) or (C) of subsection 4.1(a)(2)
above, has irrevocably deposited or caused to be irrevocably deposited with
the Indenture Trustee cash or direct obligations of or obligations
guaranteed by the United States of America (which will mature prior to the
date such amounts are payable), in trust for such purpose, in an amount
sufficient to pay and discharge the entire unpaid principal and accrued
interest on such Notes not theretofore delivered to the Indenture Trustee
for cancellation when due on the Final Scheduled Distribution Date for such
Notes or the Redemption Date for such Notes (if such Notes have been called
for redemption pursuant to Section 10.1(a)), as the case may be;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(c) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or the
Indenture Trustee) an Independent Certificate from a firm of certified
public accountants, each meeting the applicable requirements of Section
11.1(a) and each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been
complied with.
SECTION 4.2 Application of Trust Money. All monies deposited with the
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Holders of the particular Notes for the payment or
redemption of which such monies have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest; but such
monies need not be segregated from other funds except to the extent required
herein or in the Sale and Servicing Agreement or required by law.
SECTION 4.3 Repayment of Monies Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to the Notes, all
monies then held by any Paying Agent other than the Indenture Trustee under the
provisions of this Indenture with respect to such Notes shall, upon demand of
the Issuer, be paid to the Indenture Trustee to be held and applied according to
Section 3.3 and thereupon such Paying Agent shall be released from all further
liability with respect to such monies.
SECTION 4.4 Duration of Position of Indenture Trustee. Notwithstanding the
earlier payment in full of all principal and interest due to the Noteholders
under the terms of the Notes and the cancellation of the Notes pursuant to
Section 3.1, the Indenture Trustee shall continue to act in the capacity as
Indenture Trustee hereunder and, for the benefit of the Certificateholders,
shall comply with its obligations under Sections [ ], [ ] of the Sale and
Servicing Agreement, as appropriate, until such time as all payments in respect
of Certificate Balance and interest due to the Certificateholders have been paid
in full.
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ARTICLE V
DEFAULT AND REMEDIES
SECTION 5.1 Events of Default. For the purposes of this Indenture, "Event
of Default" wherever used herein, means any one of the following events:
(a) failure to pay any interest on any Note as and when the same
becomes due and payable, and such default shall continue for a period of
five (5) days; or
(b) except as set forth in Section 5.1(c), failure to pay any
instalment of the principal of any Note as and when the same becomes due
and payable, and such default continues unremedied for a period of thirty
(30) days after there shall have been given, by registered or certified
mail, written notice thereof to the Servicer by the Indenture Trustee or to
the Servicer and the Indenture Trustee by the Holders of not less than 25%
of the outstanding principal balance of the Notes; or
(c) failure to pay in full the outstanding principal balance of the
Notes on or prior to the Final Scheduled Distribution Date; or
(d) default in the observance or performance in any material respect
of any covenant or agreement of the Issuer made in this Indenture (other
than a covenant or agreement, a default in the observance or performance of
which is elsewhere in this specifically dealt with in this Section 5.1)
which failure materially and adversely affects the rights of the
Noteholders, and such default shall continue or not be cured, for a period
of 30 days after there shall have been given, by registered or certified
mail, to the Issuer and the Seller (or the Servicer, as applicable) by the
Indenture Trustee or to the Issuer and the Seller (or the Servicer, as
applicable) and the Indenture Trustee by the Holders of at least 25% of the
outstanding principal balance of the Notes, a written notice specifying
such default and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(e) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial
part of the Trust Estate in an involuntary case under any applicable
federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for
any substantial part of the Trust Estate, or ordering the winding-up or
liquidation of the Issuer's affairs, and such decree or order shall remain
unstayed and in effect for a period of 90 consecutive days; or
(f) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Issuer to the entry of an
order for relief in an involuntary case under any such law, or the consent
by the Issuer to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of the Issuer or for any substantial part of the Trust Estate, or the
making by the Issuer of any general assignment for the benefit of
creditors, or the failure by the Issuer generally to pay its debts as such
debts become due, or the taking of action by the Issuer in furtherance of
any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five Business Days
after learning of the occurrence thereof, written notice in the form of an
Officer's Certificate of any event which with the giving of notice and the lapse
of time would become an Event of Default under Section 5.1(c), its status and
what action the Issuer is taking or proposes to take with respect thereto.
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SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default should occur and be continuing, then and in
every such case, unless the principal amount of the Notes shall have already
become due and payable, either the Indenture Trustee or the Holders of Notes
representing not less than a majority of the aggregate outstanding principal
amount of the Notes may declare all the Notes to be immediately due and payable,
by a notice in writing to the Issuer (and to the Indenture Trustee if given by
the Noteholders) setting forth the Event or Events of Default, and upon any such
declaration the unpaid principal amount of such Notes, together with accrued and
unpaid interest thereon through the date of acceleration, shall become
immediately due and payable.
(b) At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter provided in this Article V, the
Holders of Notes representing a majority of the aggregate outstanding principal
amount of the Notes, by written notice to the Issuer and the Indenture Trustee,
may waive all Defaults set forth in the notice delivered pursuant to Section
5.2(a), and rescind and annul such declaration and its consequences; provided,
that no such rescission and annulment shall extend to or affect any subsequent
default or impair any right consequent thereto; and provided further, that if
the Indenture Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission and annulment or for any other reason, or shall have been
determined adversely to the Indenture Trustee, then and in every such case, the
Indenture Trustee, the Issuer and the Noteholders, as the case may be, shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Indenture Trustee, the Issuer and the
Noteholders, as the case may be, shall continue as though no such proceedings
had been taken.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.
(a) The Issuer covenants that if:
(i) default is made in the payment of any instalment of interest on
any Note when the same becomes due and payable, and such default continues
unremedied for a period of five (5) days;
(ii) except as set forth in Section 5.3(a)(iii), default is made in
the payment of the principal of or any instalment of the principal of any
Note when the same becomes due and payable, and such default continues
unremedied for a period of thirty (30) days after there shall have been
given, by registered or certified mail, written notice thereof to the
Servicer by the Indenture Trustee or to the Servicer and the Indenture
Trustee by the holders of not less than 25% of the aggregate outstanding
principal amount of the Notes; or
(iii) the aggregate outstanding principal balance of the Notes is not
paid in full on or prior to the Final Scheduled Distribution Date for such
class;
the Issuer shall, upon demand of the Indenture Trustee, pay to the Indenture
Trustee, for the ratable benefit of the Noteholders in accordance with their
respective outstanding principal amounts, the whole amount then due and payable
on such Notes for principal and interest, with interest upon the overdue
principal, at the rate borne by the Notes and in addition thereto such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Indenture Trustee and its agents and counsel.
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(b) If the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the monies adjudged or decreed to be
payable.
(c) If an Event of Default occurs and is continuing, the Indenture Trustee
may, as more particularly provided in Section 5.4, in its discretion, proceed to
protect and enforce its rights and the rights of the Noteholders, by such
appropriate Proceedings as the Indenture Trustee shall deem most effective to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in the Indenture Trustee by this Indenture or by law.
(d) If there shall be pending, relative to the Issuer or any other obligor
upon the Notes or any Person having or claiming an ownership interest in the
Trust Estate, proceedings under Title 11 of the United States Code or any other
applicable federal or state bankruptcy, insolvency or other similar law, or if a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or its property or such other obligor or Person, or in
case of any other comparable judicial Proceedings relative to the Issuer or
other obligor upon the Notes, or to the creditors or property of the Issuer or
such other obligor, the Indenture Trustee, irrespective of whether the principal
of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section 5.3, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances
made, by the Indenture Trustee and each predecessor Trustee, except as a
result of negligence or bad faith) and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of Notes in any election of a trustee, a standby
trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Noteholders and of the Indenture Trustee on
their behalf; and
(iv) to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Indenture
Trustee or the Holders of Notes allowed in any judicial proceedings
relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, if the Indenture Trustee shall consent
to the making of payments directly to such Noteholders, to pay to the Indenture
Trustee such amounts as shall be sufficient to cover reasonable compensation
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to the Indenture Trustee, each predecessor Trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor trustee except as a
result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such Proceedings instituted by the
Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the Noteholders.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
SECTION 5.4 Remedies; Priorities.
(a) If an Event of Default shall have occurred and be continuing and the
Notes have been accelerated under Section 5.2(a), the Indenture Trustee may do
one or more of the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as trustee of an express
trust for the collection of all amounts then payable on the Notes or under
this Indenture with respect thereto, whether by declaration of acceleration
or otherwise, enforce any judgment obtained, and collect from the Issuer
and any other obligor upon such Notes monies adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC and take
any other appropriate action to protect and enforce the rights and remedies
of the Indenture Trustee and the Noteholders; and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Trust Estate following an Event of Default, unless (A) the
Holders of all of the aggregate aggregate outstanding principal amount of
the Notes consent thereto, (B) the proceeds of such sale or liquidation
distributable to the Noteholders are sufficient to discharge in full the
principal of and the accrued interest on the Notes at the date of such sale
or liquidation or (C) the Indenture Trustee determines that the Trust
Estate will not continue to provide sufficient funds for the payment of
principal of and interest on the Notes as and when they would have become
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due if the Notes had not been declared due and payable, and the Indenture
Trustee obtains the consent of Holders of a majority of the aggregate
aggregate outstanding principal amount of the Notes. In determining such
sufficiency or insufficiency with respect to clauses (B) and (C), the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as
to the feasibility of such proposed action and as to the sufficiency of the
Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out the money or property in the following order:
FIRST: to the Indenture Trustee for amounts due under Section 6.7;
SECOND: to Noteholders for amounts due and unpaid on the Notes for
interest, ratably among all Noteholders, without preference or priority of
any kind, according to the amounts due and payable on all the Notes for
interest;
THIRD: to Noteholders for amounts due and unpaid on the Notes for
principal, ratably among all Noteholders, without preference or priority of
any kind, according to the amounts due and payable on all the Notes for
principal; and
FOURTH: to the Issuer for distribution to the Certificateholders,
the guarantor under the Limited Guarantee, and the holder of the GP
Interest.
The Indenture Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 5.4. At least 15 days before
such record date, the Indenture Trustee shall mail to each Noteholder and the
Indenture Trustee a notice that states the record date, the payment date and the
amount to be paid.
SECTION 5.5 Optional Preservation of the Contracts. If the Notes have been
declared to be due and payable under Section 5.2 following an Event of Default
and such declaration and its consequences have not been rescinded and annulled,
the Indenture Trustee may, but need not, elect to take and maintain possession
of the Trust Estate. It is the desire of the parties hereto and the Noteholders
that there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Indenture Trustee shall take such desire into
account when determining whether or not to take and maintain possession of the
Trust Estate. In determining whether to take and maintain possession of the
Trust Estate, the Indenture Trustee may, but need not, obtain and rely upon an
opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.
SECTION 5.6 Limitation of Suits.No Holder of any Note shall have any right
to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(i) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the aggregate outstanding
principal amount of the Notes have made written request to the Indenture
Trustee to institute such Proceeding in respect of such Event of Default in
its own name as Indenture Trustee hereunder;
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(iii) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceedings; and
(v) no direction inconsistent with such written request has been given
to the Indenture Trustee during such 60-day period by the Holders of a
majority of the aggregate outstanding principal amount of the Notes;
it being understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes or to obtain or to seek to obtain priority or preference over
any other Holders of Notes or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and common benefit of
all holders of Notes. For the protection and enforcement of the provisions of
this Section 5.6, each and every Noteholder shall be entitled to such relief as
can be given either at law or in equity.
If the Indenture Trustee shall receive conflicting or inconsistent requests
and indemnity from two or more groups of Holders of Notes, each representing
less than a majority of the aggregate outstanding principal amount of the Notes,
the Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and
Interest. Notwithstanding any other provisions in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, on such Note on or after the
respective due dates thereof expressed in such Note or in this Indenture (or, in
the case of redemption, if applicable, on or after the Redemption Date) and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
SECTION 5.8 Restoration of Rights and Remedies.If the Indenture Trustee or
any Noteholder has instituted any Proceeding to enforce any right or remedy
under this Indenture and such Proceeding has been discontinued or abandoned for
any reason or has been determined adversely to the Indenture Trustee or to such
Noteholder, then and in every such case the Issuer, the Indenture Trustee and
the Noteholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of the
Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
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acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. The Holders of a majority of the
aggregate outstanding principal amount of the Notes shall, subject to provision
being made for indemnification against costs, expenses and liabilities in a form
satisfactory to the Indenture Trustee, have the right to direct the time, method
and place of conducting any Proceeding for any remedy available to the Indenture
Trustee with respect to the Notes or exercising any trust or power conferred on
the Indenture Trustee; provided, however, that:
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) subject to the express terms of Section 5.4, any direction to the
Indenture Trustee to sell or liquidate the Trust Estate shall be by the
Holders of Notes representing not less than 100% of the aggregate
outstanding principal amount of the Notes;
(iii) if the conditions set forth in Section 5.5 have been satisfied
and the Indenture Trustee elects to retain the Trust Estate pursuant to
Section 5.5, then any direction to the Indenture Trustee by Holders of
Notes representing less than 100% of the aggregate outstanding principal
amount of the Notes to sell or liquidate the Trust Estate shall be of no
force and effect; and
(iv) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction;
provided, however, that, subject to Section 6.1, the Indenture Trustee need not
take any action that it determines might cause it to incur any liability or
might materially adversely affect the rights of any Noteholders not consenting
to such action.
SECTION 5.12 Waiver of Past Defaults.
(a) Prior to the declaration of the acceleration of the maturity of the
Notes as provided in Section 5.2, the Holders of not less than a majority of the
aggregate outstanding principal amount of the Notes may waive any past Default
or Event of Default and its consequences except a Default (i) in the payment of
principal of or interest on any of the Notes or (ii) in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of the
Holder of each Note. In the case of any such waiver, the Issuer, the Indenture
Trustee and the Noteholders shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
(b) Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Note by such Holder's acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any Proceeding
for the enforcement of any right or remedy under this Indenture, or
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in any Proceeding against the Indenture Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such Proceeding
of an undertaking to pay the costs of such Proceeding, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such Proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to:
(a) any Proceeding instituted by the Indenture Trustee;
(b) any Proceeding instituted by any Noteholder, or group of Noteholders,
in each case holding in the aggregate more than 10% of the aggregate outstanding
principal amount of the Notes; or
(c) any Proceeding instituted by any Noteholder for the enforcement of the
payment of principal of or interest on any Note on or after the respective due
dates expressed in such Note and in this Indenture (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws.The Issuer covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon, or
plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture. The
Issuer (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it shall not hinder,
delay or impede the execution of any power herein granted to the Indenture
Trustee, but shall suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon any
of the assets of the Issuer.
SECTION 5.16 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so and at
the Servicer's expense, the Issuer agrees to take all such lawful action as the
Indenture Trustee may request to compel or secure the performance and observance
by the Seller and the Servicer of their respective obligations to the Issuer
under or in connection with the Sale and Servicing Agreement and the Purchase
Agreement in accordance with the terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Issuer under
or in connection with the Sale and Servicing Agreement to the extent and in the
manner directed by the Indenture Trustee, including the transmission of notices
of default on the part of the Seller or the Servicer thereunder and the
institution of legal or administrative actions or proceedings to compel or
secure performance by the Seller or the Servicer of each of their obligations
under the Sale and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and, at the direction (which direction shall be in writing or by
telephone (confirmed in writing promptly thereafter)) of the Holders of 66-2/3%
of the aggregate outstanding principal amount of the Notes shall, exercise all
rights, remedies, powers, privileges and claims of the Issuer against the Seller
or the Servicer under or in connection with the Sale and Servicing Agreement,
including the right or power to take any action to compel or secure performance
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or observance by the Seller or the Servicer of each of their obligations to the
Issuer thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Sale and Servicing Agreement, and any right of the
Issuer to take such action shall be suspended.
(c) Promptly following a request from the Indenture Trustee to do so and at
the Servicer's expense, the Issuer agrees to take all such lawful action as the
Indenture Trustee may request to compel or secure the performance and observance
by CITSF of each of its obligations to the Seller under or in connection with
the Purchase Agreement in accordance with the terms thereof, and to exercise any
and all rights, remedies, powers and privileges lawfully available to the Issuer
under or in connection with the Purchase Agreement to the extent and in the
manner directed by the Indenture Trustee, including the transmission of notices
of default on the part of the Seller thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by CITSF
of each of its obligations under the Purchase Agreement.
(d) If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and, at the direction (which direction shall be in writing or by
telephone (confirmed in writing promptly thereafter)) of the Holders of 66-2/3%
of the aggregate outstanding principal amount of the Notes shall, exercise all
rights, remedies, powers, privileges and claims of the Seller against CITSF
under or in connection with the Purchase Agreement, including the right or power
to take any action to compel or secure performance or observance by CITSF of
each of its obligations to the Seller thereunder and to give any consent,
request, notice, direction, approval, extension or waiver under the Purchase
Agreement, and any right of the Seller to take such action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, the Indenture
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; provided, however, that the Indenture
Trustee shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
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(i) this Section 6.1(c) does not limit the effect of Section 6.1(b);
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Indenture Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Indenture 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 5.11.
(d) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(e) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture, the Sale and Servicing Agreement or the Trust Agreement.
(f) No provision of this Indenture shall require the Indenture Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayments
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(g) Every provision of this Indenture relating to the Indenture Trustee
shall be subject to the provisions of this Section 6.1 and to the provisions of
the TIA.
SECTION 6.2 Rights of Indenture Trustee.
(a) The Indenture Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Indenture
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Indenture Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on the Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee, and the Indenture Trustee shall not be
responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Indenture Trustee's conduct does
not constitute wilful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
SECTION 6.3 Indenture Trustee May Own Notes. The Indenture Trustee in its
individual or any other capacity may become the owner or pledgee of Notes
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and may otherwise deal with the Issuer, the Servicer or any of their respective
Affiliates with the same rights it would have if it were not Indenture Trustee;
provided, however, that the Indenture Trustee shall comply with Sections 6.10
and 6.11. Any Paying Agent, Note Registrar, co-registrar or co-paying agent may
do the same with like rights.
SECTION 6.4 Indenture Trustee's Disclaimer. The Indenture Trustee shall not
be responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Issuer's use of
the proceeds from the Notes, and it shall not be responsible for any statement
of the Issuer in the Indenture or in any document issued in connection with the
sale of the Notes or in the Notes other than the Indenture Trustee's certificate
of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is continuing and
if it is known to a Responsible Officer of the Indenture Trustee, the Indenture
Trustee shall mail to each Noteholder notice of the Default within 90 days after
it occurs. Except in the case of a Default in payment of principal of or
interest on any Note, the Indenture Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Noteholders.
SECTION 6.6 Reports by Indenture Trustee to Holders. The Indenture Trustee
shall deliver to each Noteholder the information and documents set forth in
Article VII, and, in addition, all such information with respect to the Notes as
may be required to enable such holder to prepare its federal and state income
tax returns.
SECTION 6.7 Compensation; Indemnity.
(a) The Issuer shall cause the Servicer pursuant to the Sale and Servicing
Agreement to pay to the Indenture Trustee from time to time reasonable
compensation for its services. The Indenture Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer
shall cause the Servicer pursuant to the Sale and Servicing Agreement to
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture Trustee's
agents, counsel, accountants and experts. The Issuer shall cause the Servicer
pursuant to the Sale and Servicing Agreement to indemnify the Indenture Trustee
in accordance with Section [ ] of the Sale and Servicing Agreement.
(b) The Issuer's obligations to the Indenture Trustee pursuant to this
Section 6.7 shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(d) or (e) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of Indenture Trustee.
(a) The Indenture Trustee may resign at any time by so notifying the
Issuer. The Holders of a majority in aggregate outstanding principal amount of
the Notes may remove the Indenture Trustee by so notifying the Indenture Trustee
and may appoint a successor Indenture Trustee. Such resignation or removal shall
become effective in accordance with Section 6.8(c). The Issuer shall remove the
Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
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(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
(b) If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of the Indenture Trustee under this Indenture. The successor Indenture Trustee
shall mail a notice of its succession to Noteholders. The retiring Indenture
Trustee shall promptly transfer all property held by it as Indenture Trustee to
the successor Indenture Trustee.
(d) If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Trustee, the Issuer or the Holders of a majority of the aggregate outstanding
principal amount of the Notes may petition any court of competent jurisdiction
for the appointment of a successor Indenture Trustee.
(e) If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
(f) Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section 6.8, the Issuer's obligations under Section 6.7 and the Servicer's
corresponding obligations under the Sale and Servicing Agreement shall continue
for the benefit of the retiring Indenture Trustee.
SECTION 6.9 Merger or Consolidation of Indenture Trustee.
(a) Any corporation into which the Indenture Trustee may be merged or with
which it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Indenture Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Indenture Trustee,
shall be the successor of the Indenture Trustee under this Indenture; provided,
however, that such corporation shall be eligible under the provisions of Section
6.11, without the execution or filing of any instrument or any further act on
the part of any of the parties to this Indenture, anything in this Indenture to
the contrary notwithstanding.
(b) If at the time such successor or successors by merger or consolidation
to the Indenture Trustee shall succeed to the trusts created by this Indenture,
any of the Notes shall have been authenticated but not delivered, any such
successor to the Indenture Trustee may adopt the certificate of authentication
of any predecessor trustee, and deliver such Notes so authenticated; and in case
at that time any of the Notes shall not have been authenticated, any successor
to the Indenture Trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor to the Indenture Trustee.
In all such cases such certificate of authentication shall have the same full
force as is provided anywhere in the Notes or herein with respect to the
certificate of authentication of the Indenture Trustee.
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SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any time,
for the purpose of meeting any legal requirement of any jurisdiction in which
any part of the Trust or any Financed Vehicle may at the time be located, the
Indenture Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity and for the
benefit of the Noteholders, such title to the Trust, or any part hereof, and,
subject to the other provisions of this Section 6.10, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 6.11 and no
notice to Noteholders of the appointment of any co-trustee or separate trustee
shall be required under Section 6.8.
(b) Every 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 Indenture Trustee shall be conferred or imposed upon and exercised
or performed by the Indenture Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Indenture
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 Indenture 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 Indenture
Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee 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 Indenture 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 VI. 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
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, 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
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exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The Indenture Trustee shall at
all times satisfy the requirements of TIA ss. 310(a). The Indenture Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition and it shall have a long
term unsecured debt rating of [ ] or better by Moody's Investors Service, Inc.
and [ ] or better by Standard & Poor's Corporation. The Indenture Trustee shall
comply with TIA ss. 310(b); provided, however, that there shall be excluded from
the operation of TIA ss. 310(b)(1) any indenture or indentures under which other
securities of the Issuer are outstanding if the requirements for such exclusion
set forth in TIA ss. 310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
SECTION 6.13 Representations and Warranties of Indenture Trustee. The
Indenture Trustee represents and warrants as of the Closing Date that:
(a) the Indenture Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States of
America;
(b) the Indenture Trustee 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 the Indenture Trustee of
this Agreement (i) shall not violate any provision of any law or regulation
governing the banking and trust powers of the Indenture Trustee or any order,
writ, judgment or decree of any court, arbitrator, or governmental authority
applicable to the Indenture Trustee or any of its assets, (ii) shall not violate
any provision of the corporate charter or by-laws of the Indenture 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 Indenture Trustee's performance or ability to
perform its duties under this Agreement or on the transactions contemplated in
this Agreement;
(d) the execution, delivery and performance by the Indenture 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 the Indenture Trustee; and
(e) this Agreement has been duly executed and delivered by the Indenture
Trustee and constitutes the legal, valid and binding agreement of the Indenture
Trustee, enforceable in accordance with its terms.
SECTION 6.14 Indenture Trustee May Enforce Claims Without Possession of
Notes. All rights of action and claims under this Agreement or the Notes may be
prosecuted and enforced by the Indenture Trustee without the possession of any
of the Notes or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Indenture Trustee shall be brought in its
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own name as Indenture Trustee. Any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee, its agents and counsel, be for the ratable
benefit of the Noteholders in respect of which such judgment has been obtained.
SECTION 6.15 Suit for Enforcement. If an Event of Default shall occur and
be continuing, the Indenture Trustee, in its discretion may, subject to the
provisions of Section 6.1, proceed to protect and enforce its rights and the
rights of the Noteholders under this Agreement by Proceeding whether for the
specific performance of any covenant or agreement contained in this Agreement or
in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy as the Indenture
Trustee, being advised by counsel, shall deem most effectual to protect and
enforce any of the rights of the Indenture Trustee or the Noteholders.
SECTION 6.16 Rights of Noteholders to Direct Indenture Trustee. Holders of
Notes evidencing not less than a majority of the aggregate outstanding principal
amount of the Notes shall have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the Indenture Trustee or
exercising any trust or power conferred on the Indenture Trustee; provided,
however, that subject to Section 6.1, the Indenture Trustee shall have the right
to decline to follow any such direction if the Indenture Trustee being advised
by counsel determines that the action so directed may not lawfully be taken, or
if the Indenture Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would be illegal or subject it to
personal liability or be unduly prejudicial to the rights of Noteholders not
parties to such direction; and provided, further, that nothing in this Agreement
shall impair the right of the Indenture Trustee to take any action deemed proper
by the Indenture Trustee and which is not inconsistent with such direction by
the Noteholders.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of
Noteholders. The Issuer shall furnish or cause to be furnished by the Servicer
to the Indenture Trustee (a) not more than five days before each Distribution
Date, a list, in such form as the Indenture Trustee may reasonably require, of
the names and addresses of the Holders of Notes as of the close of business on
the Record Date, and (b) at such other times as the Indenture Trustee may
request in writing, within 14 days after receipt by the Issuer of any such
request, a list of similar form and content as of a date not more than 10 days
prior to the time such list is furnished; provided, however, that so long as the
Indenture Trustee is the Note Registrar, no such list shall be required to be
furnished.
SECTION 7.2 Preservation of Information, Communications to Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.1 and the names and addresses of Holders of Notes received by the
Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in such Section 7.1 upon receipt of
a new list so furnished.
(b) Noteholders may communicate pursuant to TIA ss. 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes.
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(c) The Issuer, the Indenture Trustee and the Note Registrar shall have the
protection of TIA ss. 312(c).
SECTION 7.3 Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Issuer may be required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act;
(ii) file with the Indenture Trustee and the Commission in accordance
with rules and regulations prescribed from time to time by the Commission
such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee shall
transmit by mail to all Noteholders described in TIA ss. 313(c)) such
summaries of any information, documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) of this Section 7.3(a) as may
be required by rules and regulations prescribed from time to time by the
Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of such year.
SECTION 7.4 Reports by Trustee.
(a) If required by TIA ss. 313(a), within 60 days after each [ ],
beginning with [ ], the Indenture Trustee shall mail to each Noteholder
as required by TIA ss. 313(c) a brief report dated as of such date that complies
with TIA ss. 313(a). The Indenture Trustee also shall comply with TIA ss.
313(b). A copy of any report delivered pursuant to this Section 7.4(a) shall, at
the time of its mailing to Noteholders, be filed by the Indenture Trustee with
the Commission and each stock exchange, if any, on which the Notes are listed.
The Issuer shall notify the Indenture Trustee if and when the Notes are listed
on any stock exchange.
(b) On each Distribution Date, the Indenture Trustee shall include with
each payment to each Noteholder a copy of the statement for the related Due
Period applicable to such Distribution Date as required pursuant to Section [ ]
of the Sale and Servicing Agreement.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the Trust Estate, the Indenture Trustee may take such action as
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may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
without prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
SECTION 8.2 Designated Accounts; Payments.
(a) On or prior to the Closing Date, the Issuer shall cause the Servicer to
establish and maintain, in the name of the Indenture Trustee or Owner Trustee,
as appropriate, for the benefit of the Noteholders and the Certificateholders,
the Trust Accounts as provided in Section [ ] of the Sale and Servicing
Agreement.
(b) On or before each Distribution Date, all amounts of monies which are
due to the Noteholders and the Certificateholders with respect to the preceding
Due Period will be deposited into the Collection Account as provided in Section
[ ] of the Sale and Servicing Agreement. On or before each Distribution Date,
the amount which is due to the Noteholders with respect to the preceding Due
Period will be transferred from the Collection Account (or from the Reserve Fund
if required) to the Note Distribution Account as provided in Section [ ] of the
Sale and Servicing Agreement.
(c) On each Distribution Date, the Indenture Trustee shall distribute all
amounts on deposit in the Note Distribution Account to Noteholders in respect of
the Notes to the extent of amounts due and unpaid on the Notes for principal and
interest. To the extent that the funds available for distribution in the Note
Distribution Account are not sufficient to pay all amounts of accrued and unpaid
principal and interest on the Notes, such amounts will be distributed first in
respect of interest and then in respect of principal.
SECTION 8.3 General Provisions Regarding Accounts.
(a) So long as no Default or Event of Default shall have occurred and be
continuing, all or a portion of the funds in the Designated Accounts shall be
invested in Eligible Investments and reinvested by the Indenture Trustee upon
Issuer Order, subject to the provisions of Section [ ] of the Sale and Servicing
Agreement. The Issuer shall not direct the Indenture Trustee to make any
investment of any funds or to sell any investment held in any of the Designated
Accounts unless the security interest granted and perfected in such account
shall continue to be perfected in such investment or the proceeds of such sale,
in either case without any further action by any Person, and, in connection with
any direction to the Indenture Trustee to make any such investment or sale, if
requested by the Indenture Trustee, the Issuer shall deliver to the Indenture
Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such
effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in any way
be held liable by reason of any insufficiency in any of the Designated Accounts
resulting from any loss on any Eligible Investment included therein except for
losses attributable to the Indenture Trustee's failure to make payments on such
Eligible Investments issued by the Indenture Trustee, in its commercial capacity
as principal obligor and not as trustee, in accordance with their terms.
(c) If (i) the Issuer shall have failed to give investment directions for
any funds on deposit in the Designated Accounts to the Indenture Trustee by
11:00 a.m., New York City Time (or such other time as may be agreed by the
Issuer and the Indenture Trustee) on any Business Day; or (ii) a Default or
Event of Default shall have occurred and be continuing with respect to the Notes
but the Notes shall not have been declared due and payable pursuant to Section
5.2, or, if such Notes shall have been declared due and payable following an
Event of Default, amounts collected or receivable from the Trust Estate are
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being applied in accordance with Section 5.5 as if there had not been such a
declaration; then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Designated Accounts in one or more
Eligible Investments selected by the Indenture Trustee.
SECTION 8.4 Release of Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to Section
6.7, the Indenture Trustee may, and when required by the provisions of this
Indenture shall, execute instruments to release property from the lien of this
Indenture, or convey the Indenture Trustee's interest in the same, in a manner
and under circumstances that are consistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Indenture Trustee
as provided in this Article VIII shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any monies.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due to the Indenture Trustee pursuant to Section 6.7
have been paid, release any remaining portion of the Trust Estate that secured
the Notes from the lien of this Indenture and release to the Issuer or any other
Person entitled thereto any funds then on deposit in the Designated Accounts.
The Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section 8.4(b) only upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and (if required
by the TIA) Independent Certificates in accordance with TIA ss.ss. 314(c) and
314(d)(1) meeting the applicable requirements of Section 11.1.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall receive at
least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require as a condition to such action, an
Opinion of Counsel, in form and substance satisfactory to the Indenture Trustee,
stating the legal effect of any such action, outlining the steps required to
complete the same, and concluding that all conditions precedent to the taking of
such action have been complied with and such action shall not materially and
adversely impair the security for the Notes or the rights of the Noteholders in
contravention of the provisions of this Indenture; provided, however, that such
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Indenture Trustee in connection with any such
action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes but with prior notice
to the Rating Agencies, the Issuer and the Indenture Trustee, when authorized by
an Issuer Order, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject to additional
property to the lien of this Indenture;
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(ii) to evidence the succession, in compliance with Section 3.10 and
the applicable provisions hereof, of another person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer contained
herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit of the
Noteholders, or to surrender any right or power herein conferred upon the
Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be inconsistent with any
other provision herein or in any supplemental indenture;
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the TIA or under any similar federal statute hereafter
enacted and to add to this Indenture such other provisions as may be
expressly required by the TIA, and the Indenture Trustee is hereby
authorized to join in the execution of any such supplemental indenture and
to make any further appropriate agreements and stipulations that may be
therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Noteholders but with prior
notice to the Rating Agencies, at any time and from time to time enter into one
or more indentures supplemental hereto for the purpose of adding any provisions
to, changing in any manner, or eliminating any of the provisions of, this
Indenture or modifying in any manner the rights of the Noteholders under this
Indenture; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Noteholder.
SECTION 9.2 Supplemental Indentures With Consent of Noteholders.
(a) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, also may, with prior notice to the Rating Agencies and with the consent
of the Holders of not less than a majority of the aggregate outstanding
principal amount of the Notes, by Act of such Holders delivered to the Issuer
and the Indenture Trustee, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, changing in any manner, or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Noteholders under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Note affected thereby:
(i) change the due date of any instalment of principal of or interest
on any Note, or reduce the principal amount thereof, the interest rate
applicable thereto, or the Redemption Price with respect thereto, change
any place of payment where, or the coin or currency in which, any Note or
any interest thereon is payable, or impair the right to institute suit for
the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article V,
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to the payment of any such amount due on the Notes on or after the
respective due dates thereof (or, in the case of redemption, on or after
the Redemption Date);
(ii) reduce the percentage of the outstanding Amount of the Notes, the
consent of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences as provided for in this
Indenture;
(iii) modify or alter the provisions of the proviso to the definition
of the term "Outstanding" (as defined in the Sale and Servicing Agreement);
(iv) reduce the percentage of the aggregate outstanding principal
amount of the Notes required to direct the Indenture Trustee to sell or
liquidate the Trust Estate pursuant to Section 5.4 if the proceeds of such
sale would be insufficient to pay the principal amount of and accrued but
unpaid interest on the Outstanding Notes;
(v) modify any provision of this Section 9.2 to decrease the required
minimum percentage necessary to approve any amendments to any provisions of
this Indenture or any of the Basic Documents;
(vi) modify any of the provisions of this Indenture in such manner as
to affect the calculation of the amount of any payment of interest or
principal due on any Note on any Distribution Date (including the
calculation of any of the individual components of such calculation), or
modify or alter the provisions of the Indenture regarding the voting of
Notes held by the Issuer, the Seller or any Affiliate of either of them; or
(vii) permit the creation of any Lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the Trust
Estate or, except as otherwise permitted or contemplated herein, terminate
the lien of this Indenture on any property at any time subject hereto or
deprive the Holder of any Note of the security afforded by the lien of this
Indenture.
(b) The Indenture Trustee may in its discretion determine whether or not
any Notes would be affected (such that the consent of each would be required) by
any supplemental indenture proposed pursuant to this Section 9.2 and any such
determination shall be conclusive upon the Holders of all Notes, whether
authenticated and delivered thereunder before or after the date upon which such
supplemental indenture becomes effective. The Indenture Trustee shall not be
liable for any such determination made in good faith.
(c) It shall be sufficient if an Act of Noteholders approves the substance,
but not the form, of any proposed supplemental indenture.
(d) Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section 9.2, the Indenture Trustee
shall mail to the Noteholders to which such amendment or supplemental indenture
relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
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SECTION 9.3 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith with respect
to the Notes affected thereby, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under this Indenture of the
Indenture Trustee, the Issuer and the Noteholders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every amendment of this
Indenture and every supplemental indenture executed pursuant to this Article IX
shall conform to the requirements of the TIA as then in effect so long as this
Indenture shall then be qualified under the TIA.
SECTION 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes of the same class.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption.
(a) The Notes are subject to redemption upon the exercise by the Servicer
of its option to purchase the Contracts pursuant to Section [ ] of the Sale and
Servicing Agreement. Such redemption shall occur on any Distribution Date. The
purchase price for the Notes shall be equal to the applicable Redemption Price,
provided the Issuer has available funds sufficient to pay such amount. The
Issuer shall furnish the Rating Agencies notice of such redemption. If the Notes
are to be redeemed pursuant to this Section 10.1(a), the Issuer shall furnish
notice thereof to the Indenture Trustee not later than 25 days prior to the
Redemption Date and the Issuer shall deposit into the Note Distribution Account,
on or before the Redemption Date, the aggregate Redemption Price of the Notes to
be redeemed, whereupon all such Notes shall be due and payable on the Redemption
Date.
(b) If the assets of the Trust are sold pursuant to Section 7.2 of the
Trust Agreement, all amounts deposited in the Note Distribution Account pursuant
to the Sale and Servicing Agreement as a result thereof shall be paid to the
Noteholders. If amounts are to be paid to Noteholders pursuant to this Section
10.1(b), the Servicer or the Issuer shall, to the extent practicable, furnish
notice of such event to the Indenture Trustee not later than 25 days
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prior to the Redemption Date whereupon all such amounts shall be payable on the
Redemption Date.
SECTION 10.2 Form of Redemption Notice.
(a) Notice of redemption of the Notes under Section 10.1(a) shall be given
by the Indenture Trustee by first class mail, postage prepaid, mailed not less
than five days prior to the applicable Redemption Date to each Noteholder of
Notes of record at such Noteholder's address appearing in the Note Register.
(b) All notices of redemption shall state:
(i) the Redemption Date;
(ii) the applicable Redemption Price; and
(iii) the place where Notes are to be surrendered for payment of the
Redemption Price (which shall be the Agency Office of the Indenture Trustee
to be maintained as provided in Section 3.2).
(c) Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuer. Failure to give notice of
redemption, or any defect therein, to any Holder of any Note shall not impair or
affect the validity of the redemption of any other Note.
(d) Prior notice of redemption under Section 10.1(b) is not required to be
given to Noteholders.
SECTION 10.3 Notes Payable on Redemption Date.
The Notes shall, following notice of redemption as required by Section 10.2
(in the case of redemption pursuant to Section 10.1(a)), on the Redemption Date
cease to be Outstanding for purposes of this Indenture and shall thereafter
represent only the right to receive the applicable Redemption Price and (unless
the Issuer shall default in the payment of such Redemption Price) no interest
shall accrue on such Redemption Price for any period after the date to which
accrued interest is calculated for purposes of calculating such Redemption
Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the Indenture Trustee
to take any action under any provision of this Indenture, the Issuer shall
furnish to the Indenture Trustee: (i) an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, (ii) an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the applicable requirements of
this Section 11.1, except that, in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture, no additional certificate or opinion need be
furnished. Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
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(i) a statement that each signatory of such certificate or opinion has
read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the judgment of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory,
such condition or covenant has been complied with.
(b) (i) Prior to the deposit with the Indenture Trustee of any Collateral
or other property or securities that is to be made the basis for the release of
any property or securities subject to the lien of this Indenture, the Issuer
shall, in addition to any obligation imposed in Section 11.1(a) or elsewhere in
this Indenture, furnish to the Indenture Trustee an Officers' Certificate
certifying or stating the opinion of each person signing such certificate as to
the fair value (within 90 days of such deposit) to the Issuer of the Collateral
or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officers' Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (b)(i) above, the
Issuer shall also deliver to the Indenture Trustee an Independent
Certificate as to the same matters, if the fair value to the Issuer of the
securities to be so deposited and of all other such securities made the
basis of any such withdrawal or release since the commencement of the then
current fiscal year of the Issuer, as set forth in the certificates
delivered pursuant to clause (i) above and this clause (b)(ii), is 10% or
more of the aggregate outstanding principal amount of the Notes, but such a
certificate need not be furnished with respect to any securities so
deposited, if the fair value thereof to the Issuer as set forth in the
related Officers' Certificate is less than $25,000 or less than one percent
of the aggregate outstanding principal amount of the Notes.
(iii) Other than with respect to the release of any Repurchased
Contracts or Liquidated Contracts or disbursement from the Pre-Funding
Account, whenever any property or securities are to be released from the
lien of this Indenture, the Issuer shall also furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
Person signing such certificate as to the fair value (within 90 days of
such release) of the property or securities proposed to be released and
stating that in the opinion of such person the proposed release will not
impair the security under this Indenture in contravention of the provisions
hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signatory thereof as to the matters described in clause (b)(iii) above, the
Issuer shall also furnish to the Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property, other than Repurchased Contracts or
Liquidated Contracts or disbursement from the Pre-Funding Account, or
securities released from the lien of this Indenture since the commencement
of the then current calendar year, as set forth in the certificates
required by clause (b) (iii) above and this clause (b) (iv),
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equals 10% or more of the aggregate outstanding principal amount of the
Notes, but such certificate need not be furnished in the case of any
release of property or securities if the fair value thereof as set forth in
the related Officer's Certificate is less than $25,000 or less than one
percent of the then aggregate outstanding principal amount of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of this Section
11.1, the Issuer may (A) collect, liquidate, sell or otherwise dispose of
Contracts and Financed Vehicles as and to the extent permitted or required
by the Basic Documents, (B) make cash payments out of the Designated
Accounts as and to the extent permitted or required by the Basic Documents
and (C) take any other action not inconsistent with the TIA.
SECTION 11.2 Form of Documents Delivered to Indenture Trustee.
(a) In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Servicer, the Seller or the Issuer, stating that the information with
respect to such factual matters is in the possession of the Servicer, the Seller
or the Issuer, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 11.3 Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Noteholders
or a class of Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Noteholders in
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person or by agents duly appointed in writing; and except as herein otherwise
expressly provided such action shall become effective when such instrument or
instruments are delivered to the Indenture Trustee, and, where it is hereby
expressly required, to the Issuer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Noteholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section 11.3.
(b) The fact and date of the execution by any person of any such instrument
or writing may be proved in any manner that the Indenture Trustee deems
sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Notes shall bind the Holder of every Note
issued upon the registration thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Indenture
Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or permitted by this Indenture
to be made upon, given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if in writing and either sent by
electronic facsimile transmission (with hard copy to follow via first class
mail) or mailed, by certified mail, return receipt requested to the Issuer and
the Owner Trustee, care of the Owner Trustee at its Corporate Trust Office, with
copies to [ ] or at any other address previously furnished in writing to the
Indenture Trustee by the Issuer.
The Issuer shall promptly transmit any notice received by it from the
Noteholders to the Indenture Trustee and the Indenture Trustee shall likewise
promptly transmit any notice received by it from the Noteholders to the
Indenture Trustee.
(c) Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, personally
delivered, sent by electronic facsimile transmission (with hard copy to follow
via first class mail) or mailed by certified mail, return receipt requested to:
(i) in the case of Moody's Investors Service, Inc., at the following address:
Moody's Investors Service, Inc., ABS Monitoring Department, 99 Church Street,
New York, New York 10007; and (ii) in the case of Standard & Poor's Corporation,
at the following address: Standard & Poor's Corporation, 26 Broadway (20th
Floor), New York, New York 10004, Attn: Asset Backed Surveillance Department or
as to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
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SECTION 11.5 Notices to Noteholders; Waiver.
(a) Where this Indenture provides for notice to Noteholders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if it is in writing and mailed, first-class, postage prepaid to each
Noteholder affected by such event, at such Person's address as it appears on the
Note Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. If notice to Noteholders is
given by mail, neither the failure to mail such notice nor any defect in any
notice so mailed to any particular Noteholder shall affect the sufficiency of
such notice with respect to other Noteholders, and any notice that is mailed in
the manner herein provided shall conclusively be presumed to have been duly
given regardless of whether such notice is in fact actually received.
(b) Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event of Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute an Event of
Default.
SECTION 11.6 Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Indenture Trustee or any
Paying Agent to such Holder, that is different from the methods provided for in
this Indenture for such payments or notices. The Issuer shall furnish to the
Indenture Trustee a copy of each such agreement and the Indenture Trustee shall
cause payments to be made and notices to be given in accordance with such
agreements.
SECTION 11.7 Conflict with Trust Indenture Act.
(a) If any provision hereof limits, qualifies or conflicts with another
provision hereof that is required to be included in this Indenture by any of the
provisions of the TIA, such required provision shall control.
(b) The provisions of TIA ss.ss. 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
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SECTION 11.9 Successors and Assigns.
(a) All covenants and agreements in this Indenture and the Notes by the
Issuer shall bind its successors and assigns, whether so expressed or not.
(b) All covenants and agreements of the Indenture Trustee in this Indenture
shall bind its successors and assigns, whether so expressed or not.
SECTION 11.10 Separability.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.11 Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied, shall give
to any Person, other than the parties hereto and their successors hereunder, and
the Noteholders, and any other party secured hereunder, and any other Person
with an ownership interest in any part of the Trust Estate, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 11.12 Legal Holidays.
If the date on which any payment is due shall not be a Business Day, then
(notwithstanding any other provision of the Notes or this Indenture) payment
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the date on which nominally
due, and no interest shall accrue for the period from and after any such nominal
date.
SECTION 11.13 GOVERNING LAW.
THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts.
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 11.15 Recording of Indenture.
If this Indenture is subject to recording in any appropriate public
recording offices, such recording is to be effected by the Issuer and at its
expense accompanied by an Opinion of Counsel (which may be counsel to the
Indenture Trustee or any other counsel reasonably acceptable to the Indenture
Trustee) to the effect that such recording is necessary either for the
protection of the Noteholders or any other Person secured hereunder or for the
enforcement of any right or remedy granted to the Indenture Trustee under this
Indenture.
SECTION 11.16 No Recourse.
No recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against:
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(i) the Indenture Trustee or the Owner Trustee in its individual
capacity;
(ii) any owner of a beneficial interest in the Issuer; or
(iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
Indenture Trustee and the Owner Trustee have no such obligations in their
individual capacity) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any
unpaid consideration for stock, unpaid capital contribution or failure to
pay any instalment or call owing to such entity. For all purposes of this
Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Articles VI, VII and VIII of the
Trust Agreement.
SECTION 11.17 No Petition.
The Indenture Trustee, by entering into this Indenture, and each
Noteholder, by accepting a Note issued hereunder, hereby covenant and agree that
they shall not, prior to the date which is one year and one day after the
termination of this Indenture with respect to the Trust pursuant to Section 4.1,
acquiesce, petition or otherwise invoke or cause the Seller, the holder of the
GP Interest (which initially shall be The CIT GP Corporation) or the Trust to
invoke the process of any court or government 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 holder of the GP Interest (which initially shall be The CIT
GP Corporation) or the Trust or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Seller or the
Trust.
SECTION 11.18 Inspection.
The Issuer agrees that, on reasonable prior notice, it shall permit any
representative of the Indenture Trustee, during the Issuer's normal business
hours, to examine all the books of account, records, reports, and other papers
of the Issuer, to make copies and extracts therefrom, to cause such books to be
audited by Independent certified public accountants, and to discuss the Issuer's
affairs, finances and accounts with the Issuer's officers, employees and
Independent certified public accountants, all at such reasonable times and as
often as may be reasonably requested. The Indenture Trustee shall and shall
cause its representatives to hold in confidence all such information except to
the extent disclosure may be required by law (and all reasonable applications
for confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
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SECTION 11.19 Indemnification by and Reimbursement of the Servicer.
The Indenture Trustee acknowledges and agrees to reimburse (i) the Servicer
and its directors, officers, employees and agents in accordance with Section [ ]
of the Sale and Servicing Agreement and (ii) the Seller and its directors,
officers, employees and agents in accordance with Section [ ] of the Sale and
Servicing Agreement. The Indenture Trustee further acknowledges and accepts the
conditions and limitations with respect to the Servicer's obligation to
indemnify, defend and hold the Indenture Trustee harmless as set forth in
Section [ ] of the Sale and Servicing Agreement.
* * * * *
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<PAGE>
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this
Indenture to be duly executed by their respective officers, thereunto duly
authorized, all as of the day and year first above written.
CIT RV OWNER TRUST 1995-A
[ ],
not in its individual
capacity but solely as
Owner Trustee,
By:
-------------------------
Name:
Title:
[ ],
as Indenture Trustee,
By:
-------------------------
Name:
Title:
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<PAGE>
EXHIBIT A
FORM OF ASSET BACKED NOTES
REGISTERED $_____________
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO._________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
CIT RV OWNER TRUST 1995-A
CLASS A ASSET BACKED NOTES
CIT RV OWNER TRUST 1995-A, a business trust organized and existing under
the laws of the State of Delaware (herein referred to as the "Issuer"), for
value received, hereby promises to pay to ________________, or registered
assigns, the principal sum of________________ DOLLARS ($_________) payable in
accordance with the Indenture, prior to the occurrence of an Event of Default
and a declaration that the Notes are due and payable, on each Distribution Date
in an amount equal to the difference between (i) the Pool Balance on the last
day of the second proceeding Due Period (or, in the case of the Initial Cut-off
Date Pool Balance), less (ii) the Pool Balance as of the last day of the
preceding Due Period; provided, however, that the entire unpaid principal amount
of this Note shall be due and payable on [the earlier of] ________________ (the
"Final Scheduled
<PAGE>
Payment Date") [and the Redemption Date, if any, pursuant to Section 10.1(a) of
the Indenture]. The Issuer shall pay interest on this Note at the rate per annum
shown above on each Distribution Date until the principal of this Note is paid
or made available for payment, on the principal amount of this Note outstanding
on the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date). Interest on this Note will
accrue for each Distribution Date from and including the most recent
Distribution Date on which interest has been paid to but excluding the then
current Distribution Date or, if no interest has yet been paid, from June 1,
1995. Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months. Such principal of and interest on this Note shall be paid
in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America which, at the time of payment, is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof or be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: CIT RV OWNER TRUST 1995-A
By: THE FIRST NATINAL BANK OF
CHICAGO, not in its individual capacity but solely
as Owner Trustee under the Trust Agreement
By: ______________________________________
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), not in its
individual capacity but solely as Indenture Trustee
By: ______________________________________
Name:
Title:
<PAGE>
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as Class A ___% Asset Backed Notes (herein called the "Class A Notes"
or "Notes"), all issued under an Indenture, dated as of June 1, 1995 (such
Indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and The Chase Manhattan Bank (National Association), a
national banking association, as trustee (the "Indenture Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Class A Notes are subject to all terms of the
Indenture. All terms used and not otherwise defined in this Note that are
defined in the Indenture, as supplemented or amended, shall have the meanings
assigned to them in or pursuant to the Indenture.
The Class A Notes and all other Notes issued pursuant to the Indenture are
and will be equally and ratably secured by the Collateral pledged as security
therefor as provided in the Indenture.
Subject to the immediately following paragraph, principal on the Class A
Notes shall be payable in full on the earlier of the Distribution Date which is
the Final Scheduled Payment Date for the Class A Notes set forth above and the
Redemption Date, if any, pursuant to Section 10.1(a) of the Indenture. In
addition, principal on the Class A Notes will be payable in installments on
earlier Distribution Dates to the extent of amounts available therefor, in the
amounts and in the priorities set forth in Section 8.2(c) of the Indenture.
"Distribution Date," with respect to the Notes means the fifteenth day of each
month or, if any such date is not a Business Day, the next succeeding Business
Day, commencing July 17, 1995.
Notwithstanding the provisions of the preceding paragraph, the entire
unpaid principal amount of this Note shall be due and payable on the date on
which an Event of Default shall have occurred and be continuing and the
Indenture Trustee or the Noteholders representing not less than a majority of
the Outstanding Amount of the Notes have declared the Notes to be immediately
due and payable in the manner provided in Section 5.2 of the Indenture. In such
event, the Holders of all Notes shall be entitled to receive repayment of
principal ratably in proportion to their respective unpaid principal balances.
All principal payments on the Class A Notes shall be made pro rata to the
Holders of the Class A Notes.
Payments of interest on this Note at the rate of ___% per annum shall be
due and payable on each Distribution Date, together with the instalment of
principal, if any, if not in full payment of this Note, shall be made by check
mailed to the Person whose name appears as the Registered Holder of this Note
(or one or more Predecessor Notes) on the Note Register as of the close of
business on each Record Date, except that with respect to Notes registered on
the Record Date in the name of the nominee of the Depository (initially, such
nominee to be Cede
<PAGE>
& Co.), payments will be made by wire transfer in immediately available funds to
the account designated by such nominee. Such checks shall be mailed to the
Person entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. The Record Date, with respect to any
Distribution Date, means the close of business on the day immediately preceding
such Payment Date, or if Definitive Notes are issued, the last day of the
preceding Monthly Period. Any reduction in the principal amount of this Note (or
any one or more Predecessor Notes) effected by any payments made on any
Distribution Date shall be binding upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Payment Date, then the
Indenture Trustee, in the name of and on behalf of the Issuer, shall notify the
Person who is the Registered Holder hereof as of the Record Date preceding such
Payment Date by notice sent in accordance with Section 2.7(e) of the Indenture,
and the amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in the City of New York.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by a commercial bank
or trust company located, or having a correspondent located, in the City of New
York or the city in which the Corporate Trust Office is located, or a member
firm of a national securities exchange, and such other documents as the
Indenture Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in their
individual capacities, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in their individual capacities, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in their individual capacities, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
instalment or call owing to such entity.
<PAGE>
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder will not, prior to the
date which is one year and one day after the termination of this Indenture with
respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Seller or the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Seller or the
Issuer under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Seller or 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.
Each Noteholder, by acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, unless otherwise required by appropriate taxing
authorities, agrees to treat the Notes as indebtedness secured by the Contracts
for the purpose 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.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note shall
be overdue, and neither the Issuer, the Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Holders of Notes representing a majority of the
outstanding principal amount of all the Notes. The Indenture also contains
provisions permitting the Holders of Notes representing specified percentages of
the outstanding principal amount of the Notes, on behalf of the Holders of all
the Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of the Noteholders.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
<PAGE>
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither the Seller, the Servicer, the Indenture
Trustee nor the Owner Trustee in their respective individual capacities, any
owner of a beneficial interest in the Issuer, nor any of their respective
partners, beneficiaries, agents, officers, directors, employees or successors or
assigns, shall be personally liable for, nor shall recourse be had to any of
them for, the payment of principal of or interest on, or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in this Note or the Indenture, it being expressly understood that said
covenants, obligations and indemnifications have been made by the Owner Trustee
solely as the Owner Trustee in the assets of the Issuer. The Holder of this Note
by the acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided, however, that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the Indenture
or in this Note.
<PAGE>
Exhibit 4.2
Form of Trust Agreement
<PAGE>
================================================================================
TRUST AGREEMENT
BETWEEN
THE CIT GROUP SECURITIZATION CORPORATION II
SELLER
AND
[ ]
OWNER TRUSTEE
DATED AS OF [JUNE 1, 1995]
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1 Definitions.................................................... 1
ARTICLE II
ORGANIZATION
2.1 Name........................................................... 1
2.2 Office......................................................... 1
2.3 Purposes and Powers............................................ 1
2.4 Appointment of Owner Trustee................................... 2
2.5 Initial Capital Contribution of Owner Trust Estate............. 2
2.6 Declaration of Trust........................................... 2
2.7 Liability of the Seller and the Certificate Owners............. 2
2.8 Title to Trust Property........................................ 3
2.9 Situs of Trust................................................. 3
2.10 Representations and Warranties of the Seller................... 3
2.11 Representations and Warranties of the Holder of the GP Interest 4
2.12 Tax Treatment.................................................. 4
ARTICLE III
THE CERTIFICATES
3.1 Initial Certificate Ownership.................................. 5
3.2 Form of the Certificates....................................... 5
3.3 Execution, Authentication and Delivery......................... 6
3.4 Registration; Registration of Transfer and Exchange of
Certificates............................................... 6
3.5 Mutilated, Destroyed, Lost or Stolen Certificates.............. 7
3.6 Persons Deemed Certificateholders.............................. 8
3.7 Access to List of Certificateholders' Names and Addresses...... 8
3.8 Maintenance of Corporate Trust Office.......................... 8
3.9 Appointment of Paying Agent.................................... 8
3.10 Disposition by Seller.......................................... 9
3.11 Book-Entry Certificates........................................ 9
3.12 Notices to Depository.......................................... 10
3.13 Definitive Certificates........................................ 10
3.14 Seller as Certificateholder.................................... 10
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<PAGE>
Page
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
4.1 Prior Notice to Certificateholders with Respect
to Certain Matters.......................................... 10
4.2 Action by Certificateholders with Respect to Certain Matters... 11
4.3 Action by Certificateholders with Respect to Bankruptcy........ 11
4.4 Restrictions on Certificateholders' Power...................... 11
4.5 Majority Control............................................... 11
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
5.1 Establishment of Certificate Distribution Account.............. 11
5.2 Application of Trust Funds..................................... 12
5.3 Method of Payment.............................................. 12
5.4 Accounting and Reports to the Certificate of the Internal
Revenue Service and Others..................................... 13
5.5 Signature on Returns; Tax Matters Partner...................... 13
ARTICLE VI
THE OWNER TRUSTEE
6.1 Duties of Owner Trustee........................................ 13
6.2 Rights of Owner Trustee........................................ 14
6.3 Acceptance of Trusts and Duties................................ 14
6.4 Action upon Instruction by Certificateholders.................. 16
6.5 Furnishing of Documents........................................ 16
6.6 Representations and Warranties of Owner Trustee................ 16
6.7 Reliance; Advice of Counsel.................................... 17
6.8 Owner Trustee May Own Certificates and Notes................... 17
6.9 Compensation and Indemnity..................................... 18
6.10 Replacement of Owner Trustee................................... 18
6.11 Merger or Consolidation of Owner Trustee....................... 19
6.12 Appointment of Co-Trustee or Separate Trustee.................. 19
6.13 Eligibility Requirements for Owner Trustee..................... 20
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
7.1 Termination of Trust Agreement................................. 20
7.2 Dissolution upon Bankruptcy of the Seller...................... 21
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<PAGE>
Page
ARTICLE VIII
AMENDMENTS
8.1 Amendments Without Consent of Certificateholders
or Noteholders.............................................. 22
8.2 Amendments With Consent of Certificateholders and Noteholders.. 22
8.3 Form of Amendments............................................. 23
ARTICLE IX
MISCELLANEOUS
9.1 No Legal Title to Owner Trust Estate........................... 23
9.2 Limitations on Rights of Others................................ 23
9.3 Notices........................................................ 23
9.4 Severability................................................... 24
9.5 Counterparts................................................... 24
9.6 Successors and Assigns......................................... 24
9.7 No Petition Covenant........................................... 24
9.8 No Recourse.................................................... 24
9.9 Headings....................................................... 25
9.10 Governing Law.................................................. 25
9.11 Certificate Transfer Restrictions.............................. 25
9.12 Indemnification by and Reimbursement of the Servicer........... 25
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
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<PAGE>
TRUST AGREEMENT, dated as of [June 1, 1995], between THE CIT GROUP
SECURITIZATION CORPORATION II, a Delaware corporation, as Seller, and [
], a [ ] corporation, as Owner Trustee.
The Seller and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Certain capitalized terms used in this Agreement
shall have the respective meanings assigned to them in the Sale and Servicing
Agreement of even date herewith, among the Seller, the Servicer and the Trust
(the "Sale and Servicing Agreement"). All references herein to "the Agreement"
or "this Agreement" are to the Trust Agreement, and all references herein to
Articles, Sections and subsections are to Articles, Sections and sub- sections
of this Agreement unless otherwise specified.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be known as "CIT RV Owner
Trust 1995-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 sue and be sued on behalf of the Trust.
SECTION 2.2 Office. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address as the Owner
Trustee may designate by written notice to the Certificate Owners and the
Seller.
SECTION 2.3 Purposes and Powers. (a) The purpose of the Trust is to engage
in the following activities:
(i) to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Agreement, and to sell, tumnsfs on ehalf of the Trust
and sue and be sued on behalf of the Trust.
SECTION 2.2 Office. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address as the Owner
Trustee may designate by written notice to the Certificate Owners and the
Seller.
SECTION 2.3 Purposes and Powers. (a) The purpose of the Trust is to engage
in the following activities:
(i) to issue the Notes pursuant to the Indene Contracts;
(iv) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the terms of the Indenture and to hold, manage and
distribute to the Certificate Owners pursuant to the terms of this
Agreement and the Sale and Servicing Agreement any portion of the Trust
Estate released from the lien of, and remitted to the Trust pursuant to,
the Indenture;
(v) to enter into and perform its obligations and exercise its rights
under the Basic Documents to which it is to be a party;
(vi) 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;
(vii) to acquire Subsequent Contracts from the Seller from time to
time with funds on deposit in the Pre-Funding Account; and
<PAGE>
(viii) 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 shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the Basic Documents.
SECTION 2.4 Appointment of Owner Trustee. The Seller hereby appoints the
Owner Trustee as trustee of the Trust effective as of the date hereof, to have
all the rights, powers and duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Owner Trust Estate. The Seller
hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee, as
of the date hereof, the sum of $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.
SECTION 2.6 Declaration of Trust. The Owner Trustee hereby declares that
it shall hold the Owner Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificate Owners, subject to
the obligations of the Trust under the Basic Documents. It is the intention of
the parties hereto that the Trust constitute a business trust under the Business
Trust Statute and that this Agreement constitute the governing instrument of
such business trust. It is the intention of the parties hereto that, solely for
purposes of federal income taxes, state and local income and franchise taxes and
any other taxes imposed upon, measured by, or based upon gross or net income,
the Trust shall be treated as a partnership. The parties agree that, unless
otherwise required by appropriate tax authorities, the Trust shall file or cause
to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as a partnership for such tax
purposes. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and in the Business Trust Statute
with respect to accomplishing the purposes of the Trust.
SECTION 2.7 Transfer of Interest to The CIT GP Corporation; Liability of
The CIT GP Corporation.
(a) On the Closing Date, the Seller shall and does hereby transfer and
assign its entire interest in the Trust to The CIT GP Corporation and The CIT GP
Corporation shall otherwise in addition purchase a 1% interest in the Trust (the
"GP Interest"). The holder of the GP Interest (which initially shall be The CIT
GP Corporation) shall pay organizational expenses of the Trust as they may arise
or shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee. The holder of the GP
Interest (which initially shall be The CIT GP Corporation) shall be liable
directly to and shall indemnify the injured party for all losses, claims,
damages, liabilities and expenses of the Trust (including Expenses, to the
extent not paid out of the Owner Trust Estate) to the extent that the holder of
the GP Interest (which initially shall be The CIT GP Corporation) would be
liable if the Trust were a partnership under the Delaware Revised Uniform
Limited Partnership Act in which the holder of the GP Interest (which initially
shall be The CIT GP Corporation) were a general partner; provided, however, that
the holder of the GP Interest (which initially shall be The CIT GP Corporation)
shall not be liable for (i) any losses incurred by a Certificateholder or a
Certificate Owner in its capacity as an investor in the Certificates or by a
Noteholder in its capacity as an investor in the Notes or (ii) any losses,
claims, damages, liabilities and expenses arising out of the imposition by any
taxing authority of any federal, state or local income or franchise taxes, or
any other taxes imposed on or measured by gross or net income, gross or net
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<PAGE>
receipts, capital, net worth and similar items (including any interest,
penalties or additions with respect thereto) upon the Certificateholders, the
Certificate Owners, the Noteholders, the Owner Trustee or the Indenture Trustee
(including any liabilities, costs or expenses with respect thereto) with respect
to the Contracts not specifically indemnified or represented to hereunder. In
addition, any third party creditors of the Trust (other than in connection with
the obligations described in the preceding sentence for which the holder of the
GP Interest shall not be liable) shall be deemed third party beneficiaries of
this subsection 2.7(a). The obligations of the holder of the GP Interest under
this subsection 2.7(a) shall be evidenced by the Certificates issued pursuant to
Section 3.10, 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; provided, however, that the rights and obligations evidenced by all
Certificates, regardless of class, shall, except as provided in this subsection
2.7(a), be identical.
(b) No Certificate Owner, other than to the extent set forth in subsection
2.7(a) with respect to the holder of the GP Interest, shall have any personal
liability for any liability or obligation of the Trust.
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.
SECTION 2.9 Situs of Trust. The Trust shall be located and administered in
the State of [ ]. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or the State
of [ ]. The Trust shall not have any employees in any state other
than Delaware; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of Delaware.
Payments shall be received by the Trust only in Delaware or [ ],
and payments will be made by the Trust only from Delaware or [ ]
The only office of the Trust shall be the Corporate Trust Office in [ ].
SECTION 2.10 Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Owner Trustee that:
(a) The Seller 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 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
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<PAGE>
any breach of any of the terms and provisions of or constitute (with or without
notice or lapse of time) a default under, the 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 the Basic
Documents), or violate any law or, to the best of the Sellers 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 GP
Interest. The CIT GP Corporation, as intended holder of the GP Interest, hereby
represents and warrants to the Owner Trustee, as of the Closing Date, that:
(a) It has been duly organized and is validly existing as a corporation in
good standing under the laws of the State of Illinois, 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.
(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 has 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 the Basic Documents), or
violate any law or, to the best of the 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 it or any of its properties.
(e) It has been duly capitalized by the delivery of a demand note (the
"Demand Note") from The CIT Group Holdings, Inc. ("CIT") in the amount of
$____________, which Demand Note has not been canceled, waived or terminated.
The proceeds of such Demand Note have not been used and will not be used to pay
(i) any of the expenses of the holder of the GP Interest in connection with the
transfer contemplated by the Basic Documents or (ii) the purchase price for such
Certificates purchased pursuant to Section 2.7. Such Demand Note is enforceable
against CIT, subject to its terms, and subject to the applicable bankruptcy,
insolvency, moratorium, fraudulent conveyance, reorganization and similar laws
now or hereafter in effect relating to creditors' rights generally and subject
to the general principles of equity (whether applied in a proceeding at law or
in equity).
SECTION 2.12 Tax Treatment. Net income of the Trust for any month as
determined for Federal income tax purposes (and each item of income, gain, loss,
credit and deduction entering into the computation thereof) shall be allocated:
(a) 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
- 4 -
<PAGE>
ownership of principal amount of Certificates on such date, an amount of net
income up to the sum of (i) the amount of monthly interest at the pass-through
rate to which the Certificateholders are entitled to for the related Due Period,
(ii) interest on the excess, if any, of the amount of interest and principal due
to the Certificateholders for the preceding Distribution Date over the amount in
respect of interest at the Pass-Through Rate that is actually deposited in the
Certificate Distribution Account on such preceding Distribution Date, to the
extent permitted by law, at the Pass-Through Rate from such preceding
Distribution Date through the current Distribution Date, and (iii) the portion
of the market discount, if any, on the Contracts accrued during such month that
is allocable to the excess of the initial aggregate principal amount, if any, of
the Certificates over their initial aggregate issue price; and
(b) to the holder of the GP 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 (a) above, subsequent net income shall first be allocated to
make up such shortfall before being allocated as provided in clause (b). 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 GP
Interest to the extent the holder of the GP Interest is reasonably expected as
determined by the Servicer to bear the economic burden of such net losses, then
net losses shall be allocated among the Certificateholders as of the first
Record Date following the end of such month in proportion to their ownership of
principal amount of Certificates on such Record Date until the principal balance
of the Certificates is reduced to zero. The holder of the GP 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 holders of the GP Interest, the
Certificateholders, or as otherwise required by the Code.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 Initial Certificate Ownership. Upon the formation of the Trust
by the contribution by the Seller pursuant to Section 2.5 and until the issuance
of the Certificates, the Seller shall be the sole beneficiary of the Trust.
SECTION 3.2 Form of the Certificates.
(a) The Certificates shall be substantially in the form set forth in
Exhibit A and shall be issued in minimum denominations of $20,000 and in
integral multiples of $1,000 in excess thereof; provided, however, that (a)
Certificates may be issued to the holder of the GP 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.
- 5 -
<PAGE>
(b) The Definitive 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 Initial Contracts to the Trust pursuant to the Sale and Servicing
Agreement, the Owner Trustee shall cause the Certificates in an aggregate
principal amount equal to the initial Certificate Balance to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Seller, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Seller, in authorized
denominations. No Certificate shall entitle its holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Owner Trustee or [ ], as the Owner
Trustee's authenticating agent, by manual signature. Such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication.
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. [ ]
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 of 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 [
] as 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.
Notwithstanding the foregoing, if the Seller shall have advised the Owner
Trustee in writing that an Undertaking Letter shall be required with respect to
any transfer, such transfer shall not be effective unless the requirements of
Section 9.11, with respect to the delivery of an Undertaking Letter, shall have
been complied with.
(c) At the option of a Holder, 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 [ ] as 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.
- 6 -
<PAGE>
(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. Each Certificate
surrendered for registration of transfer or exchange shall be cancelled and
subsequently destroyed by the Owner Trustee or Certificate Registrar in
accordance with its customary practice.
(e) No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
SECTION 3.5 Mutilated; Destroyed; Lost or Stolen Certificates.
(a) If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Registrar, the Owner Trustee and the Trust such security or
indemnity as may be required by them to hold each of them harmless, then, in the
absence of notice to the Certificate Registrar or the Owner Trustee that such
Certificate has been acquired by a bona fide purchaser, the Owner Trustee shall
execute on behalf of the Trust and the Owner Trustee shall authenticate and
deliver (or shall cause [ ] as its authenticating agent to authenticate and
deliver), in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a replacement Certificate of a like aggregate principal
amount; provided, however, that if any such destroyed, lost or stolen
Certificate, but not a mutilated Certificate, shall have become or within seven
days shall be due and payable, then instead of issuing a replacement Certificate
the Owner Trustee may pay such destroyed, lost or stolen Certificate when so due
or payable.
(b) If, after the delivery of a replacement Certificate or payment in
respect of a destroyed, lost or stolen Certificate pursuant to subsection
3.5(a), a bona fide purchaser of the original Certificate in lieu of which such
replacement Certificate was issued presents for payment such original
Certificate, the Owner Trustee shall be entitled to recover such replacement
Certificate (or such payment) from the Person to whom it was delivered or any
Person taking such replacement Certificate from such Person to whom such
replacement Certificate was delivered or any assignee of such Person, except a
bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Owner Trustee in connection therewith.
(c) In connection with the issuance of any replacement Certificate under
this Section 3.5, the Owner Trustee may require the payment by the Holder of
such Certificate of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Owner Trustee and the Certificate
Registrar) connected therewith.
(d) Any duplicate Certificate issued pursuant to this Section 3.5 in
replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional contractual obligation of the Trust, whether
or not the mutilated, destroyed, lost or stolen Certificate shall be found at
any time or be enforced by anyone, and shall be entitled to all the benefits of
this Agreement equally and proportionately with any and all other Certificates
duly issued hereunder.
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(e) The provisions of this Section 3.5 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates.
SECTION 3.6 Persons Deemed Certificateholders. Prior to due presentation
of a Certificate for registration of transfer, the Owner Trustee or the
Certificate Registrar may treat the Person in whose name any Certificate shall
be registered in the Certificate Register as the Certificateholder of such
Certificate for the purpose of receiving distributions pursuant to Article V and
for all other purposes whatsoever, and neither the Owner Trustee nor the
Certificate Registrar shall be affected by any notice to the contrary.
SECTION 3.7 Access to List of Certificateholders' Names and Addresses. The
Owner Trustee shall furnish or cause to be furnished to the Servicer, the Seller
and the holder of the GP Interest, within 15 days after receipt by the Owner
Trustee of a request therefor from the Servicer, the Seller or the holder of the
GP Interest in writing, a list, in such form as the Servicer, the Seller or the
holder of the GP Interest may reasonably require, of the names and addresses of
the Certificateholders as of the most recent Record Date. If three of 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 either the Seller or the Owner Trustee
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 3.8 Maintenance of Corporate Trust Office. The Owner Trustee shall
maintain in the 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 [ ], 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 shall report the amounts of such distributions to
the Owner Trustee and the Servicer. 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 Owner Trustee, 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
Owner Trustee shall no longer be the Paying Agent, the Owner Trustee shall
appoint a successor to act as Paying Agent (which shall be an Eligible
Institution). The Owner Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Owner Trustee to execute and deliver to
the Owner Trustee an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Owner Trustee that as Paying Agent,
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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, 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 Disposition by the Holder of the GP Interest. On and after
the Closing Date, the holder of the GP Interest shall retain beneficial and
record ownership of Certificates representing at least 1% of the Certificate
Balance. Any attempted transfer of any Certificate that would reduce such
interest of the holder of the GP Interest below 1% of the Certificate Balance
shall be void. The Owner Trustee shall cause any Certificate issued to the
Seller to contain a legend to such effect.
[SECTION 3.11 Book-Entry Certificates. The Certificates, upon original
issuance, shall be issued in the form of a typewritten Certificate or
Certificates representing Book-Entry Certificates, to be delivered to The
Depository Trust Company, the initial Depository by or on behalf of the Trust;
provided, however, that one Definitive Certificate (as defined below) may be
issued to The CIT GP Corporation, as holder of the GP Interest pursuant to
Section 2.7. Such Certificate or Certificates shall initially be registered on
the Certificate Register in the name of Cede & Co., the nominee of the initial
Depository and no Certificate Owner shall receive a definitive Certificate
representing such Certificate Owner's interest in such Certificate, except as
provided in Section 3.13. Unless and until definitive fully registered
Certificates (the "Definitive Certificates") shall have been issued to
Certificate Owners pursuant to Section 3.13:
(a) the provisions of this Section 3.11 shall be in full force and effect;
(b) the Certificate Registrar and the Owner Trustee shall be entitled to
deal with the Depository for all purposes of this Agreement (including the
payment of principal of and interest on the Certificates and the giving of
instructions or directions hereunder) as the sole Holder of the Certificate, and
shall have no obligation to the Certificate Owners;
(c) to the extent that the provisions of this Section 3.11 conflict with
any other provisions of this Agreement, the provisions of this Section 3.11
shall control;
(d) the rights of the Certificate Owners shall be exercised only through
the Depository and shall be limited to those established by law and agreements
between such Certificate Owners and the Depository and/or the Depository
Participants. Pursuant to the Certificate Depository Agreement in the form
attached as Exhibit C, unless and until Definitive Certificates are issued
pursuant to Section 3.13, the initial Depository will make book-entry transfers
among the Depository Participants and receive and transmit payments of principal
of and interest on the Certificates to such Depository Participants;
(e) whenever this Agreement requires or permits actions to be taken based
upon instructions or directions of Holders of Certificates evidencing a
specified percentage of the Certificate Balance, the Depository shall be deemed
to represent such percentage only to the extent that it has received
instructions to such effect from Certificate Owners and/or Depository
Participants owning or representing, respectively, such required percentage of
Certificates and has delivered such instructions to the Owner Trustee.]
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[SECTION 3.12 Notices to Depository. Whenever a notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 3.13, the Owner Trustee shall give all such notices and
communications specified herein to be given to Certificateholders to the
Depository and shall have no further obligation to the Certificate Owners,
except to the holder of the GP Interest.]
[SECTION 3.13 Definitive Certificates. If (i) the Servicer advises the
Owner Trustee in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Certificates, and
the Servicer is unable to locate a qualified successor, (ii) the Servicer at its
option advises the Owner Trustee in writing that it elects to terminate the
book-entry system through the Depository, or (iii) after the occurrence of an
Event of Default or a Servicer Default, Certificate Owners representing
beneficial interests aggregating at least a majority of the Certificate Balance
advise the Depository in writing that the continuation of a book-entry system
through the Depository is no longer in the best interest of the Certificate
Owners, then the Depository shall notify all Certificate Owners and the Owner
Trustee of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Owner Trustee of the typewritten Certificate or Certificates
representing the Book-Entry Certificates by the Depository, accompanied by
registration instructions, the Owner Trustee shall execute and authenticate the
Definitive Certificates in accordance with the instructions of the Depository.
Neither the Certificate Registrar nor the Owner Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, the Owner Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders.]
SECTION 3.14 Seller as Certificateholder. The Seller in its individual or
any other capacity may become the owner or pledgee of Certificates and may
otherwise deal with the Owner Trustee or its Affiliates as if it were not the
Seller.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not take action with respect to the following
matters, unless (i) the Owner Trustee shall have notified the Certificateholders
in writing of the proposed action at least 30 days before the taking of such
action, and (ii) the Certificateholders shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust (except
claims or lawsuit brought in connection with the collection of payments due on
the Contracts) and the compromise of any material action, claim or lawsuit
brought by or against the Trust (except with respect to the aforementioned
claims or lawsuits for collection of payments due on the Contracts);
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Business Trust
Statute), a conformed copy of which is attached hereto as Exhibit B;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
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(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
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement of a
successor Certificate Registrar, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable.
SECTION 4.2 Action by Certificateholders with Respect to Certain Matters.
The Owner Trustee shall not have the power, except upon the written direction of
the Certificateholders, to (a) remove the Servicer under the Sale and Servicing
Agreement pursuant to Section [ ] thereof, (b) appoint a successor Servicer
pursuant to Section [ ] of the Sale and Servicing Agreement, or (c) except as
expressly provided in the Basic Documents, sell the Contracts or any interest
therein after the termination of the Indenture. The Owner Trustee shall take the
actions referred to in the preceding sentence only upon written instructions
signed by the Certificateholders.
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 GP 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 Certificate-
holders shall not direct the Owner Trustee to take or refrain from taking any
action if such action or inaction would be contrary to any obligation of the
Trust or the Owner Trustee under this Agreement or any of the Basic Documents or
would be contrary to Section 2.3, nor shall the Owner Trustee be obligated to
follow any such direction, if given.
SECTION 4.5 Majority Control. Except as expressly provided herein, any
action that may be taken or consent that may be given or withheld by the
Certificateholders under this Agreement may be taken, given or withheld by the
Holders of Certificates evidencing not less than a majority of the Certificate
Balance. Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by Holders of Certificates evidencing not less than a majority of the
Certificate Balance at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Certificate Distribution Account.
(a) The Servicer, for the benefit of the Certificateholders, shall
establish and maintain in the name of the Owner Trustee, with an Eligible
Institution, the "CIT RV Owner Trust 1995-A Certificate Distribution Account"
(the "Certificate Distribution Account") bearing an additional designation
clearly indicating that the funds deposited therein are held for the benefit of
the Certificateholders.
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(b) The Owner Trustee shall possess all right, title and interest in and to
all funds on deposit from time to time in the Certificate Distribution Account
and 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 an Eligible Deposit 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 Deposit 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 shall distribute to the
Certificateholders, on a pro rata basis, amounts deposited in the Certificate
Distribution Account pursuant to Sections [ ] and [ ] of the Sale and
Servicing Agreement on or prior to such Distribution Date.
(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 [ ] of the Sale and Servicing Agreement on such Distribution
Date setting forth, among other things, the amount of the distribution allocable
to principal and to interest, the Certificate Balance after giving effect to
such distribution, the amount of funds on deposit in the Pre-Funding Account
during the Funding Period, the number and aggregate principal balance of
Subsequent Contracts purchased by the Trust on the related Distribution Date
during the Funding Period and the Total Servicing Fee with respect to such
Distribution Date or Monthly Period, as applicable.
(c) If any withholding tax is imposed on the Trust's payment (or
allocations of income) to a Certificateholder, such tax shall reduce the amount
otherwise distributable to the Certificateholder in accordance with this Section
5.2. The Owner Trustee is hereby authorized and directed to retain from amounts
otherwise distributable to the Certificateholders sufficient funds for the
payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Owner Trustee from contesting any such tax in appropriate
proceedings and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Owner Trustee may in its sole discretion withhold such
amounts in accordance with this subsection 5.2(c). If a Certificateholder wishes
to apply for a refund of any such withholding tax, the Owner Trustee shall
reasonably cooperate with such Certificateholder in making such claim so long as
such Certificateholder agrees to reimburse the Owner Trustee for any
out-of-pocket expenses incurred.
(d) If the Indenture Trustee holds escheated funds for payment to the Trust
pursuant to Section 3.3(e) of the Indenture, the Owner Trustee shall, upon
notice from the Indenture Trustee that such funds exist, submit on behalf of the
Trust an Issuer Order to the Indenture Trustee pursuant to Section 3.3(e) of the
Indenture instructing the Indenture Trustee to pay such funds to or at the order
of the Seller.
SECTION 5.3 Method of Payment. Subject to subsection 7.1(c), distributions
required to be made to Certificateholders on any Distribution Date shall be made
to each Certificateholder of record on the immediately preceding Record Date
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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 GP 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; [provided, however, that, unless Definitive Certificates
have been issued pursuant to Section 3.13, with respect to Certificates
registered on the Record Date in the name of the nominee of the Depository
(initially, such nominee to be Cede & Co.), distributions will be made by wire
transfer in immediately available funds to the account designated by such
nominee.] Notwithstanding the foregoing, the final distribution in respect of
the Certificates (whether on the Final Scheduled Distribution Date or otherwise)
will be payable only upon presentation and surrender of such Certificate at the
office or agency maintained for that purpose by the Owner Trustee pursuant to
Section 3.8.
SECTION 5.4 Accounting and Reports to the Certificateholders. The Internal
Revenue Service and Others. The Owner Trustee shall (a) maintain (or cause to be
maintained) the books of the Trust on a calendar year basis on the accrual
method of accounting, (b) deliver to each Certificateholder, as may be required
by the Code and applicable Treasury Regulations or otherwise, such information
as may be required to enable each Certificateholder to prepare its federal and
state income tax returns, (c) file such tax returns relating to the Trust and
make such elections as may from time to time be required or appropriate under
any applicable state or federal statute or rule or regulation thereunder so as
to maintain the Trust's characterization as a partnership for federal income tax
purposes, (d) cause such tax returns to be signed in the manner required by law
and (e) collect or cause to be collected any withholding tax as described in and
in accordance with subsection 5.2(c) with respect to income or distributions to
Certificateholders.
SECTION 5.5 Signature on Returns; Tax Matters Partner. The Owner Trustee
shall sign on behalf of the Trust any and all tax returns of the Trust, unless
applicable law requires a Certificateholder to sign such documents, in which
case such documents shall be signed by the holder of the GP Interest. To the
extent one may be required, the holder of the GP Interest shall be the "tax
matters partner" of the Trust pursuant to the Code.
ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Duties of Owner Trustee.
(a) The Owner Trustee undertakes to perform such duties, and only such
duties, as are specifically set forth in this Agreement and the other Basic
Documents, including the administration of the Trust in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Agreement. No implied covenants or obligations shall be read
into this Agreement.
(b) Notwithstanding the foregoing, the Owner Trustee shall be deemed to
have discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Servicer has agreed in the Sale and Servicing
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Basic Document, and the Owner Trustee shall not be liable
for the default or failure of the Servicer to carry out its obligations under
the Sale and Servicing Agreement.
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(c) In the absence of bad faith on its part, the Owner Trustee may
conclusively rely upon certificates or opinions furnished to the Owner Trustee
and conforming to the requirements of this Agreement in determining the truth of
the statements and the correctness of the opinions contained therein; provided,
however, that the Owner Trustee shall have examined such certificates or
opinions so as to determine compliance of the same with the requirements of this
Agreement.
(d) The Owner Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this subsection 6.1(d) shall not limit the effect of subsection
6.1(a) or (b);
(ii) the Owner Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that the
Owner Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Owner Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 4.1, 4.2 or 6.4.
(e) Subject to Sections 5.1 and 5.2, monies received by the Owner Trustee
hereunder need not be segregated in any manner except to the extent required by
law or the Sale and Servicing Agreement and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
(f) The Owner Trustee shall not take any action that (i) is inconsistent
with the purposes of the Trust set forth in Section 2.3 or (ii) would, to the
actual knowledge of a Responsible Officer of the Owner Trustee, result in the
Trust's becoming taxable as a corporation for federal income tax purposes. The
Certificateholders shall not direct the Owner Trustee to take action that would
violate the provisions of this Section 6.1.
SECTION 6.2 Rights of Owner Trustee. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents and each certificate or
other document attached as an exhibit to or contemplated by the Basic Documents
to which the Trust is to be a party, in such form as the Seller shall approve as
evidenced conclusively by the Owner Trustee's execution thereof. In addition to
the foregoing, the Owner Trustee is authorized, but shall not be obligated, to
take all actions required of the Trust pursuant to the Basic Documents. The
Owner Trustee is further authorized from time to time to take such action as the
Servicer recommends with respect to the Basic Documents.
SECTION 6.3 Acceptance of Trusts and Duties. Except as otherwise provided
in this Article VI, in accepting the trusts hereby created [ ] acts solely as
Owner Trustee hereunder and not in its individual capacity and all Persons
having any claim against the Owner Trustee by reason of the transactions
contemplated by this Agreement or any Basic Document shall look only to the
Owner Trust Estate for payment or satisfaction thereof. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all monies actually received by it constituting
part of the Owner Trust Estate upon the terms of the Basic Documents and this
Agreement. The Owner Trustee shall not be liable or accountable hereunder or
under any Basic Document under any circumstances, except (i) for its own
negligent action, its own negligent failure to act or its own willful misconduct
or (ii) in the case of the inaccuracy of any representation or warranty
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contained in Section 6.6 and expressly made by the Owner Trustee. In particular,
but not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) the Owner Trustee shall at no time have any responsibility or liability
for or with respect to the legality, validity and enforceability of any
Contract, or the perfection and priority of any security interest created by any
Contract in any Financed 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 Owner
Trustee.
(b) the Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of the Servicer
or any Certificateholder;
(c) no provision of this Agreement or any Basic Document shall require the
Owner Trustee to expend or risk funds or otherwise incur any financial liability
in the performance of any of its rights or powers hereunder or under any Basic
Document, if the Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes or the Certificate Balance of and
interest on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of and
makes no representation as to the validity or sufficiency of any provision of
this Agreement or for the due execution hereof by the Seller or for the form,
character, genuineness, sufficiency, value or validity of any of the Owner Trust
Estate or for or in respect of the validity or sufficiency of the Basic
Documents, the Notes, the Certificates (other than the certificate of
authentication on the Certificates) or of any Contracts or any related
documents, and the Owner Trustee shall in no event assume or incur any
liability, duty or obligation to any Noteholder 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 Servicer, the Indenture Trustee, the Seller or the Servicer under any of the
Basic Documents or otherwise and the Owner Trustee shall have no obligation or
liability to perform the obligations of the Trust under this Agreement or the
Basic Documents that are required to be performed by the Servicer under the Sale
and Servicing Agreement, the Indenture Trustee under the Indenture or the
Servicer under the Pooling and Servicing Agreement or the Sale and Servicing
Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any Basic Document, at the request, order or direction of any of
the Certificateholders, unless such Certificateholders have offered to the Owner
Trustee security or indemnity satisfactory to it against the costs, expenses and
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liabilities that may be incurred by the Owner Trustee therein or thereby. The
right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement or in any Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act.
SECTION 6.4 Action Upon Instruction by Certificateholders.
(a) Subject to Section 4.4, the Certificateholders may by written
instruction direct the Owner Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be required
to take any action hereunder or under any Basic Document if the Owner Trustee
shall have reasonably determined, or shall have been advised by counsel, that
such action is likely to result in liability on the part of the Owner Trustee or
is contrary to the terms hereof or of any Basic Document or is otherwise
contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
Basic Document, or is unsure as to the application, intent, interpretation or
meaning of any provision of this Agreement or the Basic Documents, the Owner
Trustee shall promptly give notice (in such form as shall be appropriate under
the circumstances) to the Certificateholders requesting instruction as to the
course of action to be adopted, and, to the extent the Owner Trustee acts in
good faith in accordance with any such instruction received, the Owner Trustee
shall not be liable on account of such action to any Person. If the Owner
Trustee shall not have received appropriate instructions within ten days of such
notice (or within such shorter period of time as reasonably may be specified in
such notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action which is consistent,
in its view, with this Agreement or the Basic Documents, and as it shall deem to
be in the best interests of the Certificateholders, and the Owner Trustee shall
have no liability to any Person for any such action or inaction.
SECTION 6.5 Furnishing of Documents. The Owner Trustee shall furnish (a)
to the Certificateholders, promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents and (b) to Noteholders, promptly upon receipt of a
written request therefor, copies of the Purchase Agreement, any Subsequent
Purchase Agreements, the Sale and Servicing Agreement, any Subsequent Transter
Agreements and this Agreement.
SECTION 6.6 Representations and Warranties of Owner Trustee. The Owner
Trustee hereby represents and warrants to the Seller, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation.
(b) It has full power, authority and legal right to execute, deliver and
perform this Agreement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement.
(c) The execution, delivery and performance by it of this Agreement (i)
shall not violate any provision of any law or regulation governing the banking
and trust powers of the Owner Trustee or any order, writ, judgment or decree of
any court, arbitrator or governmental authority applicable to the Owner Trustee
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or any of its assets, (ii) shall not violate any provision of the corporate
charter or by-laws of the Owner Trustee, or (iii) shall not violate any
provision of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of any lien on any properties
included in the Trust pursuant to the provisions of any mortgage, indenture,
contract, agreement or other undertaking to which it is a party, which
violation, default or lien could reasonably be expected to have a materially
adverse effect on the Owner Trustee's performance or ability to perform its
duties as Owner Trustee under this Agreement or on the transactions contemplated
in this Agreement.
(d) The execution, delivery and performance by the Owner Trustee of this
Agreement shall not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency regulating the
banking and corporate trust activities of banks or trust companies in the
jurisdiction in which the Trust was formed.
(e) This Agreement has been duly executed and delivered by the Owner
Trustee and constitutes the legal, valid and binding agreement of the Owner
Trustee, enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
SECTION 6.7 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper believed by it to be genuine
and believed by it to be signed by the proper party or parties and need not
investigate any fact or matter in any such document. The Owner Trustee may
accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer or other authorized officers of the relevant party, as to such
fact or matter, and such certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee: (i) may act directly or through its agents,
attorneys, custodians or nominees (including the granting of a power of attorney
to officers of [ ] to execute and deliver any Basic Documents,
Certificate, Note or other documents related thereto on behalf of the Owner
Trustee) pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents,
attorneys, custodians or nominees if such agents, attorneys, custodians or
nominees shall have been selected by the Owner Trustee with reasonable care; and
(ii) may consult with counsel, accountants and other skilled professionals to be
selected with reasonable care and employed by it. The Owner Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the opinion or advice of any such counsel, accountants or other such
Persons and not contrary to this Agreement or any Basic Document.
SECTION 6.8 Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
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of Certificates or Notes and may deal with the Seller, the Servicer, 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 and the Owner Trustee, and the
Owner Trustee shall be entitled to be reimbursed by the Servicer for its other
reasonable expenses hereunder, including the reasonable compensation, expenses
and disbursements of such agents, custodians, nominees, representatives, experts
and counsel as the Owner Trustee may employ in connection with the exercise and
performance of its rights and its duties hereunder. The Servicer shall indemnify
the Owner Trustee and its successors, assigns, agents and servants in accordance
with the provisions of Section [ ] of the Sale and Servicing Agreement. The
indemnities contained in this Section 6.9 shall survive the resignation or
termination of the Owner Trustee or the termination of this Agreement. Any
amounts paid to the Owner Trustee pursuant to this Article VI shall be deemed
not to be a part of the Owner Trust Estate immediately after such payment.
SECTION 6.10 Replacement of Owner Trustee.
(a) The Owner Trustee may resign at any time and be discharged from the
trusts hereby created by giving 30 days' prior written notice thereof to the
Servicer. The Servicer may appoint a successor Owner Trustee by delivering
written instrument, in duplicate, to the resigning Owner Trustee and the
successor Owner Trustee. If no successor Owner Trustee shall have been appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee. The Servicer
shall remove the Owner Trustee if:
(i) the Owner Trustee shall cease to be eligible in accordance with
the provisions of Section 6.13 and shall fail to resign after written
request therefor by the Servicer;
(ii) the Owner Trustee shall be adjudged bankrupt or insolvent;
(iii) a receiver or other public officer shall be appointed or take
charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation; or
(iv) the Owner Trustee shall otherwise be incapable of acting.
(b) If the Owner Trustee resigns or is removed or if a vacancy exists in
the office of Owner Trustee for any reason the Servicer shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate (one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee) and shall pay all fees owed to the outgoing
Owner Trustee.
(c) Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section 6.10
shall not become effective until a written acceptance of appointment is
delivered by the successor Owner Trustee to the outgoing Owner Trustee and the
Servicer and all fees and expenses due to the outgoing Owner Trustee are paid.
Any successor Owner Trustee appointed pursuant to this Section 6.10 shall be
eligible to act in such capacity in accordance with Section 6.13 and, following
compliance with the preceding sentence, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor under this Agreement,
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with like effect as if originally named as Owner Trustee. The Servicer shall
provide notice of such resignation or removal of the Owner Trustee to each of
the Rating Agencies.
(d) The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Agreement. The Servicer and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and obligations.
(e) Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 6.10, the Servicer shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Indenture Trustee, the Noteholders and
the Rating Agencies.
SECTION 6.11 Merger or Consolidation of Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such corporation shall be eligible pursuant to Section 6.13, and without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; provided, however, that the Owner Trustee shall mail notice
of such merger 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 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
by the Owner Trustee and such separate trustee or co-trustee jointly (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
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or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Servicer and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
SECTION 6.13 Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times: (a) be a corporation satisfying the provisions of Section
3807(a) of the Business Trust Statute; (b) be authorized to exercise corporate
trust powers; (c) have a combined capital and surplus of at least $50,000,000
and be subject to supervision or examination by federal or state authorities;
and (d) have (or have a parent which has) a long-term unsecured debt rating of
at least [ ] by Standard Poor's Corporation and at least [ ] by Moody's
Investors Service, Inc. 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.
ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1 Termination of Trust Agreement.
(a) This Agreement (other than Section 6.9) and the Trust shall terminate
and be of no further force or effect on the earlier of: (i) the final
distribution by the Owner Trustee of all monies or other property or proceeds of
the Owner Trust Estate in accordance with the terms of the Indenture, the Sale
and Servicing Agreement (including the exercise by the Servicer of its option to
purchase the Contracts pursuant to Section [ ] of the Sale
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and Servicing Agreement) and Article V or (ii) at the time provided in Section
7.2. The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder, other than the holder of the GP Interest as described in
Section 7.2, 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.
(b) Except as provided in Section 7.1(a), neither the Seller nor the holder
of the GP Interest nor any Certificateholder shall be entitled to revoke or
terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Distribution
Date upon which the Certificateholders shall surrender their Certificates to the
Paying Agent for payment of the final distribution and cancellation, shall be
given by the Owner Trustee by letter to Certificateholders mailed within five
Business Days of receipt of notice of such termination from the Servicer given
pursuant to subsection [ ] 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 GP Interest and
distributed by the Owner Trustee to the holder of the GP Interest.
(e) Upon the winding up of the Trust and its termination, the Owner Trustee
shall cause the Certificate of Trust to be cancelled by filing a certificate of
cancellation with the Secretary of State in accordance with the provisions of
Section 3810 of the Business Trust Statute.
SECTION 7.2 Dissolution upon Bankruptcy of the Holder of the GP Interest.
Upon the occurrence of an Insolvency Event with respect to the holder of the GP
Interest, this Agreement and the Trust shall be terminated in accordance with
Section 7.1 unless, within 90 days after such occurrence, the Owner Trustee
shall have received written instructions from (a) each of the Certificateholders
(other than the holder of the GP Interest) and (b) each of the Noteholders, to
the effect that each such party disapproves of the liquidation of the Contracts
and termination of the Trust. Promptly after the occurrence of any Insolvency
Event with respect to the holder of the GP Interest: (i) the holder of the GP
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Interest shall give the Indenture Trustee and the Owner Trustee written notice
of such Insolvency Event; (ii) the Owner Trustee shall, upon the receipt of such
written notice from the holder of the GP Interest, give prompt written notice to
the Certificateholders and the Indenture Trustee of the occurrence of such event
and (iii) the Indenture Trustee shall, upon receipt of written notice of such
Insolvency Event from the Owner Trustee or the holder of the GP Interest, give
prompt written notice to the Noteholders of the occurrence of such event;
provided, however, that any failure to give a notice required by this sentence
shall not prevent or delay in any manner a termination of the Trust pursuant to
the first sentence of this Section 7.2. If no such instructions are received
within such 90-day period, the Owner Trustee shall direct the Indenture Trustee
promptly to sell the assets of the Trust (other than the Designated Accounts and
the Certificate Distribution Account) in a commercially reasonable manner and on
commercially reasonable terms. The proceeds of any such sale, disposition or
liquidation of the assets of the Trust shall be treated as collections on the
Contracts and deposited in the Collection Account pursuant to Section [ ] of the
Sale and Servicing Agreement.
ARTICLE VIII
AMENDMENTS
SECTION 8.1 Amendments Without Consent of Certificateholders or
Noteholders. This Agreement may be amended by the Seller and the Owner Trustee
without the consent of any of the Noteholders or the Certificateholders (but
with prior notice to each of the Rating Agencies), to (i) cure any ambiguity or
defect, (ii) correct or supplement any provision in this Agreement that may be
defective or inconsistent with any other provision in this Agreement, (iii) add
or supplement any credit enhancement for the benefit of the Noteholders or the
Certificateholders (provided that if any such addition shall affect any class of
Noteholders or Certificateholders differently than any other class of
Noteholders or Certificateholders, then such addition shall not, as evidenced by
an Opinion of Counsel, adversely affect in any material respect the interests of
any class of the Noteholders or the Certificateholders), (iv) add to the
covenants, restrictions or obligations of the Seller or the Owner 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 in any manner that shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of the Noteholders or the Certificateholders.
SECTION 8.2 Amendments With Consent of Certificateholders and Noteholders.
This Agreement may be amended from time to time by the Seller and the Owner
Trustee with the consent of Noteholders whose Notes evidence not less than a
majority of the Outstanding Amount of the Notes as of the close of the preceding
Distribution Date and the consent of Certificateholders whose Certificates
evidence not less than a majority of the Certificate Balance as of the close of
the preceding Distribution Date (which consent, whether given pursuant to this
Section 8.2 or pursuant to any other provision of this Agreement, shall be
conclusive and binding on such Person and on all future holders of such Notes or
Certificates and of any Notes or Certificates issued upon the transfer thereof
or in exchange thereof or in lieu thereof whether or not notation of such
consent is made upon the Notes or Certificates) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement, or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided, however, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Contracts or distributions that shall be
required to be made on any Note or Certificate, the Pass Through Rate or the
Specified Reserve Fund Balance or (b) reduce the aforesaid percentage required
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to consent to any such amendment, without the consent of the holders of all
Notes and all of the Certificate Balance with respect to Certificates then
outstanding. The Owner Trustee shall furnish notice to each of the Rating
Agencies prior to obtaining consent to any proposed amendment under this Section
8.2.
SECTION 8.3 Form of Amendments.
(a) Promptly after the execution of any amendment, supplement or consent
pursuant to Section 8.1 or 8.2, the Owner Trustee shall furnish written
notification of the substance of such amendment or consent to each
Certificateholder and the Indenture Trustee.
(b) It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Indenture Trustee pursuant to Section 8.2 to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(c) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(d) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 No Legal Title to Owner Trust Estate. The Certificateholders
shall not have legal title to any part of the Owner Trust Estate. The
Certificateholders shall be entitled to receive distributions with respect to
their undivided ownership interest therein only in accordance with Articles V
and VII. No transfer, by operation of law or otherwise, of any right, title, and
interest of the Certificateholders to and in their ownership interest in the
Owner Trust Estate shall operate to terminate this Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Owner Trust Estate.
SECTION 9.2 Limitations on Rights of Others. Except for Section 2.7, the
last sentence of Section 5.2(a) and Section 9.12, the provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Seller, the
Certificateholders, the Servicer and, to the extent expressly provided herein,
the Indenture Trustee and the Noteholders, and nothing in this Agreement,
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Owner Trust Estate or under or
in respect of this Agreement or any covenants, conditions or provisions
contained herein.
SECTION 9.3 Notices.
(a) All demands, notices and communications upon or to the Seller, the
Servicer, the Indenture Trustee, the Owner Trustee or the Rating Agencies under
this Agreement shall be in writing personally delivered, sent by electronic
facsimile (with hard copy to follow via first class mail) or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
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receipt (a) in the case of the Seller, at the following address: [
], (b) in the case of the Servicer,
at the following address: [ ],
(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 Moody's Investors Service, Inc., to
Moody's Investors Service, Inc., ABS Monitoring Department, 99 Church Street,
New York, New York 10007 and (f) in the case of Standard & Poor's Corporation,
to Standard & Poor's Corporation, 26 Broadway (15th Floor), New York, New York
10004, Attention: Asset Backed Surveillance Department, or at such other address
as shall be designated by such Person in a written notice to the other parties
to this Agreement.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
SECTION 9.4 Severability. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the holders
thereof.
SECTION 9.5 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
SECTION 9.6 Successors and Assigns. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, the Seller, the Owner
Trustee and each Certificateholder and their respective successors and permitted
assigns, all as herein provided. Any request, notice, direction, consent, waiver
or other instrument or action by a Certificateholder shall bind the successors
and assigns of such Certificateholder.
SECTION 9.7 No Petition Covenant. Notwithstanding any prior termination of
this Agreement, the Trust (or the Owner Trustee on behalf of the Trust), each
Certificateholder or Certificate Owner, the Indenture Trustee and each
Noteholder or Note Owner shall not, prior to the date which is one year and one
day after the termination of this Agreement with respect to the holder of the GP
Interest, acquiesce, petition or otherwise invoke or cause the holder of the GP
Interest to invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against the holder of the GP Interest
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 holder of the GP Interest or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the holder
of the GP Interest.
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 GP Interest, the Servicer, the Owner Trustee, the
Indenture Trustee or any Affiliate thereof and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Certificates or the Basic Documents
(including the Limited Guarantee).
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SECTION 9.9 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 9.10 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 9.11 Certificate Transfer Restrictions.
(a) The Certificates may not be acquired by or for the account of (i) an
employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to
the provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1)
of the Code or (iii) any entity whose underlying assets include plan assets by
reason of a plan's investment in the entity (each, a "Benefit Plan"). By
accepting and holding a Certificate, the Holder thereof and the Certificate
Owner shall each be deemed to have represented and warranted that it is not a
Benefit Plan and, if requested to do so by the Seller, the Certificateholder and
the Certificate Owner shall execute and deliver to the Owner Trustee, a letter
to the satisfaction of the Owner Trustee, certifying that such party is not a
Benefit Plan (an "Underaking Letter").
(b) The Certificates may not be acquired by or for the account of [insert
language re: restriction against ownership by non-United States persons.]
SECTION 9.12 Indemnification by and Reimbursement of the Servicer. The
Owner Trustee acknowledges and agrees to reimburse (i) the Servicer and its
directors, officers, employees and agents in accordance with Section [ ] of the
Sale and Servicing Agreement and (ii) the Seller and its directors, officers,
employees and agents in accordance with Section [ ] of the Sale and Servicing
Agreement. The Owner Trustee further acknowledges and accepts the conditions and
limitations with respect to the Servicer's obligation to indemnify, defend and
hold the Owner Trustee harmless as set forth in Section [ ] of the Sale and
Servicing Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written
[ ],
as Owner Trustee
By:___________________________
Name:
Title:
THE CIT GROUP SECURITIZATION CORPORATION II
By:___________________________
Name:
Title:
Accepted and Agreed
with respect to the
provisions relating to
the intended holder of
the GP Interest:
THE CIT GP CORPORATION
By: ___________________________
Name:
Title:
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EXHIBIT A
NUMBER $______________
CUSIP NO. ____________
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF (i) AN
"EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA")) THAT IS SUBJECT TO THE
PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (INCLUDING, WITHOUT LIMITATION,
INDIVIDUAL RETIREMENT ACCOUNTS AND KEOGH PLANS), OR (iii) ANY ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE
ENTITY. BY ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER HEREOF AND THE
CERTIFICATE OWNER SHALL EACH BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT
IS NOT A BENEFIT PLAN.
PURSUANT TO THE TRUST AGREEMENT, THE CIT GP CORPORATION ("GP CORP") SHALL
RETAIN BENEFICIAL AND RECORD OWNERSHIP OF CERTIFICATES REPRESENTING AT LEAST 1%
OF THE CERTIFICATE BALANCE, AND ANY ATTEMPTED TRANSFER OF THIS CERTIFICATE THAT
REDUCES THE BENEFICIAL AND RECORD INTEREST OF CARI TO BELOW 1% OF THE
CERTIFICATE BALANCE SHALL BE VOID.
CIT RV OWNER TRUST 1995-A
_____% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of retail instalment sale contracts secured by
new and used recreational vehicles and sold to the Trust by The CIT Group
Securitization Corp II
(This Certificate does not represent an interest in or obligation of The CIT
Group Securitization Corporation II, The CIT Group/Sales Financing, Inc. or The
CIT Group Holdings, Inc. or any of their respective affiliates, except to the
extent described below.)
<PAGE>
THIS CERTIFIES THAT __________________ is the registered owner of a
nonassessable, fully-paid, fractional undivided interest in CIT RV Owner Trust
1995-A (the "Trust") formed by The CIT Group Securitization Corporation II, a
Delaware corporation.
The Trust was created pursuant to a Trust Agreement, dated as of June 1,
1995 (as amended and supplemented from time to time, the "Trust Agreement"),
between the Seller and The First National Bank of Chicago as owner trustee (the
"Owner Trustee"), a summary of certain of the pertinent provisions of which is
set forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certifi- cates designated as
"_____% Asset Backed Certificates" (the "Certificates"). This Certificate is
issued under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Certificate by virtue of
the acceptance hereof assents and by which such holder is bound. The property of
the Trust includes a pool of simple interest retail installment sale contracts
(the "Initial Contracts") secured by the new and used recreational vehicles
financed thereby (the "Initial Financed Vehicles"), certain monies received
under the Initial Contracts on and after June 1, 1995 (the "Initial Cut-off
Date"), security interests in the Initial Financed Vehicles, the Collection
Account, the Note Distribution Account, the Certificate Distribution Account,
the Capitalized Interest Account and the Pre- Funding Account, in each case
together with the proceeds thereof, the proceeds from claims under certain
insurance policies in respect of individual Initial 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 on July 17, 1995 (each, a "Distribution Date"), to the person in
whose name this Certificate is registered on the related Record Date (as defined
below), such Certificateholder's fractional undivided interest in the amount of
interest and principal to be distributed to Certificateholders on such
Distribution Date; provided, however, Certificateholders shall not receive
payments in respect of principal until the Notes have been paid in full. The
"Record Date," with respect to any Distribution Date, means the close of
business on the day immediately preceding such Distribution Date, or if
Definitive Certificates are issued, the last day of the preceding Monthly
Period.
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<PAGE>
The distributions in respect of principal and interest on this Certificate
are payable in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. All
payments made by the Trust with respect to this Certificate shall be applied
first to interest due and payable on this Certificate as provided above and then
to the unpaid distributions in respect of principal on this Certificate.
The holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as and to the extent described in the Sale and
Servicing Agreement and the Indenture.
It is the intent of the Seller, the Servicer and the Certificateholders
that, for purposes of federal income, state and local income and franchise taxes
and any other taxes imposed upon, measured by or based upon gross or net income,
the Trust shall be treated as a partnership. Except as otherwise required by
appropriate taxing authorities, the Seller and the other Certificateholders by
acceptance of a Certificate, agree to treat, and to take no action inconsistent
with the treatment of, the Certificates for such tax purposes as interests in
such partnership.
Each Certificateholder or Certificate Owner, by its acceptance of a
Certificate or, in the case of a Certificate Owner, a beneficial interest in a
Certificate, covenants and agrees that such Certificateholder or Certificate
Owner, as the case may be, shall not, prior to the date which is one year and
one day after the termination of the Trust Agreement, acquiesce, petition or
otherwise invoke or cause the Seller to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Seller under any federal or state bankruptcy, insolvency,
reorganization or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Seller.
Distributions on this Certificate shall be made as provided in the Trust
Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this certificate or the making of any notation hereon, except
that with respect to Certificates registered on the Record Date in the name of
the nominee of the Depository (initially, such nominee to be Cede & Co.),
payments shall be made by wire transfer in immediately available funds to the
account designated by such nominee. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate shall be made
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<PAGE>
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 in ___________________________.
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 ______ , 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.
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<PAGE>
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 OWNER TRUST 1995-A
TRUST 1993-1
THE FIRST NATIONAL BANK OF CHICAGO
not in its individual capacity
but solely as Owner Trustee
Dated: _____________________
By: _____________________
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the
within-mentioned Trust Agreement.
THE FIRST NATIONAL BANK OF CHICAGO
not in its individual
capacity but solely
as Owner Trustee
By: ____________________________
Name:
Title:
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<PAGE>
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an interest in, the
Seller, the Servicer, The CIT Group Holdings, Inc. the Indenture Trustee, the
Owner Trustee or any affiliates of any of them and no recourse may be had
against such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement or the Basic Documents. In
addition, this Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections and
recoveries with respect to the Contracts (and certain other amounts), all as
more specifically set forth herein and in the Trust Agreement and the Sale and
Servicing Agreement. A copy of each of the Sale and Servicing Agreement and the
Trust Agreement may be examined during normal business hours at the principal
office of the Seller, and at such other places, if any, designated by the
Seller, by any Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certifi- cateholders under the Trust Agreement at
any time by the Seller and the Owner Trustee with the consent of the Holders of
the Notes evidencing not less than a majority of the Outstanding Amount of the
Notes as of the close of the preceding Payment 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 in the City of ___________, accompanied by (i) 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 (ii) if requested by the Seller, the
Undertaking Letter required by Section 9.11 of the Trust Agreement, 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 ________________.
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<PAGE>
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 GP
Interest may be issued 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. The Servicer of the 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 on which the
Pool Balance is 10% or less of the Initial Pool Balance. In addition, within ten
days following a Distribution Date as of which the Pool Balance is 5% or less of
the Initial Pool Balance an auction sale of the remaining Contracts will be
conducted (as described in the Sale and Servicing Agreement.
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<PAGE>
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 a member firm of the New York Stock Exchange or a commercial bank
or trust company.
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<PAGE>
EXHIBIT B
CERTIFICATE OF TRUST OF
CIT RV OWNER TRUST 1995-A
THIS Certificate of Trust of CIT RV Owner Trust 1995-A (the "Trust"). dated
as of June 1, 1995, is being duly executed and filed by ___________________, a
Delaware banking corporation, as the Delaware trustee, to form a business trust
under the Delaware Business Trust Act (12 Del. C. 3801 et seq.).
1. Name. The name of the business trust formed hereby is CIT RV Owner Trust
1995-A.
2. Delaware Trustee. The name and business address of the trustee of the Trust
in the State of Delaware is ------------------------ ,
.
3. This Certificate of Trust shall be effective immediately upon filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust, have
executed this Certificate of Trust as of the date first-above written.
_________________________ , not in its individual capacity but solely as
Delaware Trustee under a Trust Agreement dated as of June 1, 1995
By:______________________________
Name:
Title:
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Exhibit 4.3
Form of Sale and Servicing Agreement
<PAGE>
================================================================================
THE CIT GROUP SECURITIZATION CORPORATION II,
as Seller
THE CIT GROUP/SALES FINANCING, INC.,
as Servicer
[ ],
as Owner Trustee
-------------------------------
SALE AND SERVICING AGREEMENT
Dated as of [June 1, 1995]
--------------------------------
$--------------
CIT RV Owner Trust 1995-A
Class A ___% Asset Backed Notes
___% Asset Backed Certificates
===============================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Definitions
1.01 General
1.02 Specific Terms
ARTICLE II
Conveyance of Contracts;
Acceptance by Trustee
2.01 Conveyance of the Initial Contracts
2.02 Conveyance of the Subsequent Contracts
2.03 Acceptance by Trustee
ARTICLE III
Representations and Warranties; The Contracts
3.01A Representations and Warranties Regarding Each Contract
3.01B Representations and Warranties Regarding the Contracts in the
Aggregate
3.01C Representations and Warranties Regarding the Contract Files
3.02 Repurchase of Contracts for Breach of Representations and Warranties
3.03 Custody of Contract Files
3.04 Duties of Servicer as Custodian
3.05 Instructions; Authority to Act
ARTICLE IV
Administration and Servicing of Contracts
4.01 Duties of Servicer
4.02 Collection of Contract Payments
4.03 Realization Upon Contracts
4.04 Physical Damage Insurance
4.05 Maintenance of Security Interests in Financed Vehicles; Retitling
4.06 Covenants of Servicer
4.07 Purchase of Contracts Upon Breach
<PAGE>
4.08 Servicing Fee
4.09 Servicer's Certificate
4.10 Annual Statement as to Compliance
4.11 Annual Report of Accountants
4.12 [Reserved]
4.13 Reports to Securityholders and the Rating Agencies
4.14 Maintenance of Fidelity Bond and Errors and Omission Policy
4.15 Trustees to Cooperate
4.16 Costs and Expenses
ARTICLE V
Distributions; Statements to Certificateholders
5.01 Collection Account, Pre-Funding Account and Capitalized Interest
Account
5.02 Collections; Applications
5.03 Monthly Advances
5.04A Non-Reimbursable Payments
5.04 Additional Deposits
5.05 Distributions
5.06 [Reserved]
5.07 Net Deposits
5.08 Statements to Certificateholders
ARTICLE VII
The Company
7.01 Representations of Company
7.02 Merger or Consolidation of Company
7.03 Limitation on Liability of the Company and Others
7.04 The Company May Own Securities
ARTICLE VIII
The Servicer; Representations and Indemnities
8.01 Representations of CITSF
8.02 Liability of Servicer, Indemnities
8.03 Merger or Consolidation of Servicer
8.04 Limitation on Liability of Servicer and Others
8.05 Servicer Not To Resign
<PAGE>
ARTICLE IX
Default
9.01 Events of Termination
9.02 Indenture Trustee to Act; Appointment of Successor
9.03 Notification to Securityholders
9.04 Rights to Direct Trustees and Waiver of Events of Termination
9.05 Effect of Transfer
ARTICLE XI
Optional Purchase and Auction Sale
11.01 Optional Purchase of All Contracts
11.02 Mandatory Sale of all Contracts
ARTICLE XII
Miscellaneous Provisions
12.01 Amendment
12.02 Protection of Title to Trust
12.03 Limitation on Rights of Securityholders
12.04 Governing Law
12.05 Notices
12.06 Severability of Provisions
12.07 Submission to Jurisdiction; Venue
12.08 Counterparts
12.09 Merger and Integration
12.10 Headings
<PAGE>
This Sale and Servicing Agreement, dated as of [June 1, 1995], is made
among The CIT Group Securitization Corporation II, as seller (together with its
permitted successors and assigns, the "Company" or the "Seller"), The CIT
Group/Sales Financing, Inc., a corporation organized and existing under the laws
of the State of Delaware, as servicer (in its individual capacity, "CITSF," or,
together with its permitted successors and assigns, the "Servicer"), and [
], a [ ], not in its individual capacity but solely
as Owner Trustee (together with permitted successors and assigns, the
"Owner Trustee").
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, the parties hereto agree as provided herein:
ARTICLE I
Definitions
Section 1.01 General.
For the purpose of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires, the terms defined in this Article
include the plural as well as the singular, the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section or other subdivision, and Section
references refer to Sections of this Agreement.
Section 1.02 Specific Terms.
"Affiliate" of any specified Person means any other Person controlling or
controlled by or under common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" or "controlled" have meanings
correlative to the foregoing.
"Agency Office" means the office of the Trust maintained pursuant to
Section 3.2 of the Indenture.
"Amount Available" on any Distribution Date is equal to all amounts on
deposit in the Collection Account attributable to collections or deposits made
in respect of such Contracts in the related Due Period less the following
amounts (to the extent that the Servicer has not already withheld such amounts
from collections on the Contracts) any repossession profits on defaulted
Contracts, any out of pocket expenses incurred by the Servicer relating to the
liquidation of a Contract and taxes and insurance advanced by the Servicer in
respect of Financed Vehicles that are reimbursable to the Servicer under the
Sale and Servicing Agreement; any amounts incorrectly deposited in the
Collection Account; and net investment earnings on the funds in the Collection
Account due to the Servicer pursuant
<PAGE>
to the Sale and Servicing Agreement and any other amounts permitted to be
withdrawn from the Collection Account by the Servicer (or to be retained by the
Servicer from collections on the Contracts) pursuant to the Sale and Servicing
Agreement.
"Authorized Officer" means with respect to the Trust, any officer of the
Owner Trustee who is authorized to act for the Owner Trustee in matters relating
to the Trust and who is identified on the list of Authorized Officers delivered
by the Owner Trustee to the Indenture Trustee on the Closing Date (as such list
may be modified or supplemented from time to time thereafter).
"Basic Documents" means the Certificate of Trust, the Trust Agreement, the
Sale and Servicing Agreement, the Indenture, the Limited Guarantee, the Purchase
Agreement, any Subsequent Purchase Agreement, and any Subsequent Transfer
Agreements.
"Benefit Plan" means a benefit plan as described in Section 9.11 of the
Trust Agreement.
"Book-Entry Certificates" means a beneficial interest in the Certificates,
ownership and transfers of which shall be made through book entries by a
Depository as described in Section 3.11 of the Trust Agreement.
"Book-Entry Notes" means a beneficial interest in the Notes, ownership and
transfers of which shall be made through book entries by a Depository as
described in Section 2.10 of the Indenture.
"Business Day" means any day other than a Saturday, Sunday or any day on
which banking institutions or trust companies in the City of New York or
___________ are authorized by law, regulation or executive order to be closed.
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware Code,
12 Del. Code ss. 3801 et seq., as the same may be amended from time to time.
"Capitalized Interest Account" means the account designated as such,
established and maintained pursuant to Section [ ] of the Sale and Servicing
Agreement.
"Certificate" means any one of the ___% Asset Backed Certificates executed
by the Owner Trustee and authenticated by the Owner Trustee in substantially the
form set forth in Exhibit A to the Trust Agreement.
"Certificate Balance" initially means, as of the Closing Date,
$_____________ and, on any Distribution Date thereafter, the initial Certificate
Balance reduced by all distributions in respect of Principal to the
Certificateholders actually made on or prior to such date.
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<PAGE>
"Certificate Depository Agreement" means the Agreement, dated as of the
Closing Date, among the Trust, the Servicer and The Depository Trust Company (as
the initial Depository), relating to the Certificates, as the same may be
amended and supplemented from time to time.
"Certificate Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.1 of the Trust Agreement.
"Certificateholder" means the holder of record of a Certificate pursuant to
the terms of the Trust Agreement.
"Certificate Interest Distribution Amount" means the amount of interest
payable on a Distribution Date to the Holders of the Certificates. Such amount
will equal interest at the Pass-Through Rate on the Certificate Balance as of
the preceding Distribution Date, after giving effect to any distributions of
principal on the Certificates on such preceding Distribution Date (or, in the
case of the first Distribution Date, on the basis of the original Certificate
Balance), for the applicable Interest Accrual Period.
"Certificate of Trust" means the certificate of trust of the Issuer
substantially in the form of Exhibit [ ] to the Trust Agreement to be filed for
the Trust pursuant to Section 3810(a) of the Business Trust Statute.
"Certificate Owners" means with respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate, as reflected
on the books of the Depository, or on the books of a Person maintaining an
account with such Depository (directly as a Depository Participant or as an
indirect participant, in each case in accordance with the rules of such
Depository).
"Certificate Pool Factor" means a seven-digit decimal which the Servicer
will compute each month indicating the remaining Certificate Balance as of the
Distribution Date, as a fraction of the initial Certificate Balance. The
Certificate Pool Factor will be 1.0000000 as of the Initial Cut-off Date, and
thereafter will decline to reflect reductions in the outstanding principal
balance of the Certificates. A Certificateholder's portion of the aggregate
outstanding Certificate Balance is the product of (i) the original denomination
of the Certificateholder's Certificate and (ii) the Certificate Pool Factor.
"Certificate Register" means the register of Certificates specified in
Section 3.4 of the Trust Agreement.
"Certificate Registrar" means the registrar at any time of the Certificate
Register, appointed pursuant to Section 3.4 of the Trust Agreement.
"CIT" means The CIT Group Holdings, Inc.
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<PAGE>
"CITCF-NY" means The CIT Group/Consumer Finance (NY).
"CITSF" means The CIT Group/Sales Financing, Inc., and its successors in
interest as permitted under the related agreement.
"Class A Interest Distribution Amount" means the amount of interest payable
on a Distribution Date to the Holders of the Class A Notes. Such amount will
equal interest at the Class A Rate on the outstanding principal amount of Class
A Notes as of the preceding Distribution Date, after giving effect to any
distributions of principal on the Class A Notes on such preceding Distribution
Date (or, in the case of the first Distribution Date, on the basis of the
original outstanding principal amount of the Class A Notes), for the applicable
Interest Accrual Period.
"Class A Note" means any one of the Class A ___% Asset Backed Notes in the
aggregate principal amount of $_________ issued pursuant to the Indenture and
substantially in the form of Exhibit C to the Indenture.
"Class A Rate" means ____% per annum, on the basis of a 360-day year
comprised of twelve 30-day months.
"Closing Date" means June __, 1995.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the Treasury Regulations promulgated thereunder.
"Collateral" means the collateral specified in the Granting Clause of the
Indenture.
"Commission" means the Securities and Exchange Commission.
"Company" means The CIT Group Securitization Corporation II, and its
successors in interest as permitted under the related agreement.
"Computer Tape" means the computer tape generated by the Servicer which
provides information relating to the Contracts, and includes the master file and
the history file.
"Contract(s)" means one or more of the Initial Contracts and/or Subsequent
Contracts.
"Contract File" means, as to each Contract (a) the original copy of the
Contract, (b) either (i) the original title document for the related Financed
Vehicle or a duplicate certified by the appropriate governmental authority which
issued the original thereof or the application for such title document, or (ii)
if the laws of the jurisdiction in
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<PAGE>
which the related Financed Vehicle is located do not provide for the issuance of
title documents for recreational vehicles, other evidence of ownership of the
related Financed Vehicle which is customarily relied upon in such jurisdiction
as evidence of title to a recreational vehicle; (c) evidence of one or more of
the following types of perfection of the security interest in the related
Financed Vehicle granted by such Contract, as appropriate: (i) notation of such
security interest on the title document, (ii) a financing statement meeting the
requirements of the UCC, with evidence of recording indicated thereon, or (iii)
such other evidence of perfection of a security interest in a recreational
vehicle as is customarily relied upon in the jurisdiction in which the related
Financed Vehicle is located; (d) an assignment of the Contract evidencing the
chain of title of the Contract from the Dealer which is the originator thereof
to CITSF; and (e) any extension, modification or waiver agreement(s).
"Contract Rate" means, with respect to any particular Contract, the rate of
interest specified in that Contract.
"Corporate Trust Office" means with respect to the Indenture Trustee or the
Owner Trustee, the principal office at which at any particular time the
corporate trust business of the Indenture Trustee or the Owner Trustee,
respectively, shall be administered, as specified in Section [ ] of the
Indenture and Section [ ] of the Trust Agreement, respectively.
"Cross-over Date" means the Distribution Date on which the Notes have been
paid in full.
"Dealer" means the dealer which sold a Financed Vehicle and which
originated and assigned the Contract relating to such Financed Vehicle to CITSF
under a Dealer Agreement.
"Dealer Agreement" means the agreement, if any, under which Contracts were
originated by a Dealer and sold to CITSF, and all documents and instruments
relating thereto.
"Default" means any occurrence that is, or with notice or the lapse of time
or both would become an Event of Default.
"Defaulted Contract" means, with respect to any Due Period, a Contract in
respect of which payments exceeding $25 in the aggregate were delinquent 120
days or more as of the last day of such Due Period; provided, however, that a
Paid-Ahead Contract and a Contract which is delinquent due to the Soldiers' and
Sailors' Relief Act of 1940 shall not be deemed to be delinquent.
"Definitive Certificates" means the Certificates specified in Section 3.13
of the Trust Agreement.
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"Definitive Notes" means the Notes specified in Section 2.12 of the
Indenture.
"Demand Note" means the note issued by CIT to The CIT GP Corporation in the
amount of $_________ which is payable on demand.
"Deposit Date" means, with respect to any Distribution Date, the Business
Day immediately preceding such related Distribution Date.
"Depository" means the initial Depository, The Depository Trust Company,
the nominee of which is CEDE & CO., and any permitted successor depository. The
Depository shall at all times be a "clearing corporation" defined in Section
8-102(3) of the Uniform Commercial Code of the State of New York.
"Depository Agreement" means the Agreement, dated as of the Closing Date,
among the Trust, the Servicer and The Depository Trust Company (as the initial
Depository), relating to the Notes, as the same may be amended and supplemented
from time to time.
"Depository Participant" means a broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Designated Accounts" means the Collection Account, the Note Distribution
Account, the Certificate Distribution Account, the Pre-Funding Account and the
Capitalized Interest Account, collectively.
"Determination Date" means the third Business Day prior to each
Distribution Date.
"Distribution Date" means the date on which payments of interest and
principal on the Securities will be made. Such Distribution Dates will be on the
fifteenth day of each month or, if any such day is not a Business Day, on the
next succeeding Business Date, commencing [July 17, 1995].
"Due Date" shall mean, with respect to each Contract, the day set forth in
such Contract as the date on which payments under such Contract are scheduled to
be made.
"Due Period" means with respect to any Distribution Date the period during
which principal, interest and fees will be collected on the Contracts for
application towards the payment of principal and interest to the Securityholders
and the payment of fees on such Distribution Date. The "Due Period" will be the
calendar month immediately preceding the Distribution Date. The first Due Period
will commence on and include [June 1, 1995] and will end on and include [June
30, 1995].
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"Electronic Ledger" means the electronic master record of installment sale
contracts of the Servicer.
"Eligible Institution" means either (i) the corporate trust department of
the Indenture Trustee or the Owner Trustee or (ii) a depository institution
organized under the laws of the United States of America or any one of the
states thereof or the District of Columbia (or any domestic branch of a foreign
bank), (A) which has either (1) a long-term unsecured debt rating acceptable to
the Rating Agencies or (2) a short-term unsecured debt rating or certificate of
deposit rating acceptable to the Rating Agencies and (B) whose deposits are
insured by the FDIC.
"Eligible Investments" means, at any time, any one or more of the
obligations and securities described in Section 5.01(c) of the Sale and
Servicing Agreement.
"Eligible Servicer" means CITSF, the Trustees or any other Person qualified
to act as Servicer of the Contracts under applicable federal and state laws and
regulations, which Person services not less than $100,000,000 in outstanding
principal amount of recreational or motor vehicle installment sale contracts.
"ERISA" means The Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" means an event as described in Section 5.1 of the
Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expenses" means the expenses described in Section 6.9 of the Trust
Agreement.
"Final Scheduled Distribution Date" means _______________.
"Financed Vehicle" with respect to a Contract means the new or used
recreational vehicle, together with all accessions thereto, securing an
Obligor's indebtedness under such Contract.
"Force-Placed Insurance" means insurance described in Section 4.04 to the
Sale and Servicing Agreement.
"Force-Placed Insurance Premium" means any premium for theft and physical
damage insurance purchased by CITSF which has been added to the principal
balance of the related Contract by CITSF.
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"Funding Period" means the period commencing on the Closing Date and ending
on the earliest to occur of (i) the date on which the amount on deposit in the
Pre- Funding Account is less than $100,000, (ii) the date on which an Event of
Default occurs under the Indenture, (iii) the date on which an Event of
Termination occurs under the Sale and Servicing Agreement, (iv) the insolvency
of the Company, CITSF, CITCF-NY or CIT or (v) the close of business on
[September 15, 1995].
"Grant" means to mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create, and grant a lien upon and a
security interest in and right of set-off against, deposit, set over and confirm
pursuant to the Indenture. A Grant of the Collateral or of any other agreement
or instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of, the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Guarantee Fee" means, on each Distribution Date, an amount equal to 1/12
of the product of [0.25%] and the aggregate outstanding principal balance of the
Contracts as of the end of the second Due Period preceding such Distribution
Date (or, in the case of the first Distribution Date, the Initial Cut-off Date).
"Guarantee Payment" means, prior to and on the Cross-over Date and subject
to the Guarantee Payment Limit, the amount, if any, by which (a) the sum of (i)
the amount of interest payable to the Certificateholders for such Distribution
Date, and (ii) the Principal Liquidation Loss Amount, if any, exceeds (b) the
Amount Available remaining for distribution to the Certificateholders after the
Servicer has been reimbursed for any outstanding Advances and has been paid the
Servicer Payment and distributions of interest and principal have been paid to
the Noteholders on such Distribution Date. Subsequent to the Cross-over Date and
subject to the Guarantee Payment Limit, the "Guarantee Payment" means the
amount, if any, by which (a) the sum of the amount of interest and principal
payable to the Certificateholders on such Distribution Date exceeds (b) the
Amount Available remaining after the Servicer has been reimbursed for any
outstanding Advances and has been paid the Servicer Payment and distributions of
interest and principal, if any, have been paid to the Noteholders on such
Distribution Date.
"Guarantee Payment Limit" means that in no event will the aggregate amount
paid under the Limited Guarantee (including the Principal Liquidation Loss
Amount) exceed $---------.
"Holder" means the Person in whose name a Note or Certificate is registered
on the Note Register or the Certificate Register, as applicable.
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"Indenture" means the indenture, dated as of [June 1, 1995], between the
Issuer and the Indenture Trustee, as amended and supplemented from time to time.
"Indenture Trustee" means _________________________, not in its individual
capacity but solely as trustee under the Indenture, or any successor trustee
under the Indenture.
"Independent" when used with respect to any specified Person, means that
the Person (i) is in fact independent of the Issuer, any other obligor upon the
Notes, the Seller and any Affiliates of any of the foregoing Persons, (ii) does
not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Seller or any Affiliate of
any of the foregoing Persons and (iii) is not connected with the Issuer, any
such other obligor, the Seller or any Affiliate of any of the foregoing Persons
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
"Independent Certificate" means a certificate or opinion to be delivered to
the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1 of the Indenture,
made by and Independent appraiser or other expert appointed by an Issuer Order
and approved by the Indenture Trustee in the exercise of reasonable care, and
such opinion or certificate shall state that the signer has read the definition
of "Independent" in the Indenture and that the signer is Independent within the
meaning thereof.
"Initial Contract" means one or more of the installment sale contracts
described in the List of Initial Contracts, which constitute part of the corpus
of the Trust, and which Contracts are to be assigned by the Company to the
Trust; including, without limitation, all related security interests,
collateral, liens, insurance policies and guarantees of the obligations of the
related Obligor (other than guarantees, if any, by the related Dealer) and any
and all rights to receive payments which are received pursuant thereto from and
after the Initial Cut-off Date, but excluding any rights to receive payments
which are received pursuant thereto prior to the Initial Cut-off Date.
"Initial Cut-off Date" means [June 1, 1995].
"Initial Financed Vehicle" means a Financed Vehicle with respect to an
Initial Contract.
"Initial Pool Balance" means the sum of (i) the Pool Balance as of the
Initial Cut-off Date and (ii) the aggregate principal balance of all Subsequent
Contracts added to the Trust as of their respective Subsequent Cut-off Dates.
"Insolvency Event" with respect to a specified Person, (i) the entry of a
decree or order by a court, agency or supervisory authority having jurisdiction
in the premises for
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the appointment of a conservator, receiver or liquidator for such Person,
in any insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of such Person's
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 90 consecutive days; (ii) the consent by such Person to the
appointment of a conservator, receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to such Person or of or relating to substantially all
of such Person's property, or (iii) such Person shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors or voluntarily suspend payment of
its obligations.
"Insurance Add-On Amount" means the premium charged to the Obligor
(together with a finance charge thereon at the applicable Contract Rate) in the
event the Servicer obtains Force-Placed Insurance due to the Obligor's failure
to obtain or maintain adequate theft, physical damage and other insurance on the
Financed Vehicle or the Obligor.
"Insurance Policy" means, with respect to each Contract, the policy of
physical damage and all other insurance covering the Financed Vehicles or the
Obligors, as provided in Section [ ] of the Sale and Servicing Agreement, and
which, as provided therein, may be a blanket policy maintained by the Servicer
in accordance with the terms and conditions of such Section [ ] of the Sale and
Servicing Agreement.
"Insurance Proceeds" means proceeds paid by any insurer pursuant to any
Insurance Policy.
"Interest Accrual Period" means the period for which interest is payable on
a Distribution Date on the Securities, which shall be the period from the most
recent Distribution Date on which interest has been paid to but excluding the
following Distribution Date, or in the case of the initial Distribution Date
from [___________, 1995] to but excluding the initial Distribution Date.
"Interest Shortfall" means with respect to any Contract and any
Distribution Date, the excess of (x) the sum of (i) the product of one-twelfth
of the weighted average of the Pass-through Rate and the Class A Rate multiplied
by the outstanding principal amount of such Contract as of the last day of the
second preceding Due Period (or, in the case of the first Due Period ending
after the Contract was acquired by the Trust, as of the Initial Cut-off Date or
the Subsequent Cut-off Date, as applicable to such Contract) calculated on the
basis of a 360-day year comprised of twelve 30-day months and (ii) the product
of (A) the Servicing Fee Rate, (B) the outstanding principal amount of such
Contract as of the last day of the second preceding Due Period (or, in the case
of the first Due Period ending after the Contract was acquired by the Trust, as
of the Initial Cut-off Date or the Subsequent Cut-off Date, as applicable to
such Contract) and (C) a fraction, the numerator of which is the number of days
in the related Due Period and the denominator of which is 365, over (y) the
amount of interest collected on such Contract in the related Due Period.
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"Investment Earnings" means investment earnings deposited in the Designated
Accounts, net of losses and investment expenses.
"Issuer" means the party named as such in the Sale and Servicing Agreement
and in the Indenture until a successor replaces it and, thereafter, means the
successor and, for purposes of any provision contained in the Indenture and
required by the TIA, each other obligor on the Notes.
"Issuer Order" and "Issuer Request" means a written order or request signed
in the name of the Issuer by any one of its Authorized Officers and delivered to
the Indenture Trustee
"Late Fees" means any late fees, prepayment charges, extension fees or
other administrative fees or similar charges allowed by applicable law with
respect to the Contracts.
"Lien" means any security interest, charge, pledge, equity or encumbrance
of any kind other than tax liens, mechanics' liens and any liens that attach by
operation of law.
"Limited Guarantee" means the Limited Guarantee dated as of [June 1, 1995]
made by CIT in favor of the Trust for the benefit of the Certificateholders.
"Liquidated Contract" means any Contract as to which the Servicer has
determined that all amounts which it expects to recover from or on account of
such Contract have been recovered; provided that any Contract in respect of
which the related Financed Vehicle has been realized upon and disposed of and
the proceeds of such disposition have been received, shall be deemed to be a
Liquidated Contract.
"List of Initial Contracts" means the list attached to the Sale and
Servicing Agreement as Exhibit [ ] identifying each Initial Contract
constituting part of the corpus of the Trust, which list (a) identifies each
Initial Contract and (b) sets forth as to each Initial Contract (i) the Initial
Cut-off Date Principal Balance, (ii) the amount of the monthly payment due from
the Obligor as of the Initial Cut-off Date, (iii) the Contract Rate as of the
Initial Cut-off Date and (iv) the maturity date.
"List of Subsequent Contracts" means, with respect to the sale of any
Subsequent Contracts by the Company to the Trust pursuant to a Subsequent
Transfer Agreement, the list attached to such Subsequent Transfer Agreement
identifying each Subsequent Contract which, upon the execution and delivery of
such Subsequent Transfer Agreement, will constitute part of the corpus of the
Trust, which list (a) identifies each such Subsequent Contract and (b) sets
forth as to each such Subsequent Contract (i) the Subsequent Cut-off Date
Principal Balance, (ii) the amount of monthly payment due from the Obligor as of
the applicable Subsequent Cut-off Date, (iii) the Contract Rate as of the
applicable Subsequent Cut-off Date and (iv) the maturity date.
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"Monthly Advance" means, with respect to any Distribution Date, any payment
made by the Servicer pursuant to Section [ ] of the Sale and Servicing
Agreement on the preceding Deposit Date.
"Moody's" means Moody's Investors Service, Inc. and its successors in
interest.
"Net Liquidation Proceeds" means the monies collected (from whatever
source) during a Due Period on a Liquidated Contract, net of the sum of (a) any
amount expended by or on behalf of the Servicer in effecting such collections,
plus (b) any payments required by law to be remitted to the Obligor, except such
amounts as constitute Post Cut-off Date Insurance Add-ons.
"Nonrecoverable Advance" means any advance made or proposed to be made
pursuant to Section 5.03 in respect of a Contract, which the Servicer believes,
in its good faith judgment, is not, or if made would not be, ultimately
recoverable from subsequent collections in respect of interest on such Contract
made by or on behalf of the Obligor thereunder, Net Liquidation Proceeds or
insurance proceeds in respect of such Contract. In determining whether an
advance is or will be nonrecoverable, the Servicer need not take into account
that it might receive any amounts in a deficiency judgment. The determination by
the Servicer that any advance is, or if made would constitute, a Nonrecoverable
Advance, shall be evidenced by an Officer's Certificate of the Servicer
delivered to the Trustees and stating the reasons for such determination.
"Notes" means the Class A ____% Asset Backed Notes.
"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section [ ] of the Sale and Servicing
Agreement.
"Noteholder" means the holder of record of a Note pursuant to the
Indenture.
"Note Owners" with respect to a Book-Entry Note means, the Person who is
the beneficial owner of such Book-Entry Note, as reflected on the books of the
Depository, or on the books of a Person maintaining an account with such
Depository (directly as a Depository Participant or as an Indirect Participant,
in each case in accordance with the rules of such Depository).
"Note Pool Factor" means a seven-digit decimal which the Servicer will
compute each month indicating the remaining outstanding principal balance of the
Notes as of the Distribution Date, as a fraction of the initial outstanding
principal balance of the Notes. The Note Pool Factor will be 1.0000000 as of the
Initial Cut-off Date, and thereafter will decline to reflect reductions in the
outstanding principal balance of the Notes. A Noteholder's portion of the
aggregate outstanding principal balance of the Notes is the
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product of (i) the original denomination of the Noteholder's Note and (ii)
the Note Pool Factor.
"Note Register" means the register of the Notes as specified in Section 2.4
of the Indenture.
"Note Registrar" means the registrar at any time of the Note Register,
appointed pursuant to Section 2.4 of the Indenture.
"Obligor" means each Person who is indebted under a Contract.
"Officers' Certificate" means a certificate signed by any Authorized
Officer of the Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1 of the Indenture,
and delivered to the Indenture Trustee. Unless otherwise specified, any
reference in the Indenture to an officer's certificate shall be to an Officer's
Certificate of any Authorized Officer of the Issuer.
"Opinion of Counsel" means a written opinion of counsel who may, except as
otherwise expressly provided, be counsel for the Seller or Servicer. In
addition, for the purposes of the Indenture: (i) such counsel shall be
satisfactory to the Indenture Trustee; (ii) the opinion shall be addressed to
the Indenture Trustee as Trustee and (iii) the opinion shall comply with any
applicable requirements of Section 11.1 of the Indenture and shall be in form
and substance be satisfactory to the Indenture Trustee.
"Outstanding Certificate Interest" means the aggregate amount for each
prior Distribution Date of the difference between (i) the Certificate Interest
Distribution Amount and (ii) the amount of interest actually distributed to the
Holders of the Certificates.
"Outstanding Class A Interest" means the aggregate amount for each prior
Distribution Date of the difference between (i) the Class A Interest
Distribution Amount and (ii) the amount of interest actually distributed to the
Holders of the Class A Notes.
"Owner Trust Estate" means all right, title and interest of the Trust in
and to the property and rights assigned to the Trust pursuant to Articles II of
the Sale and Servicing Agreement, all funds deposited from time to time in the
Designated Accounts (except the Note Distribution Account) and all other
property of the Trust from time to time, including any rights of the Owner
Trustee and the Trust Agreement pursuant to the Basic Documents.
"Owner Trustee" means _______________________, a Delaware banking
corporation, or any successor trustee under the Trust Agreement.
"Paid-Ahead Contract" means a Contract in respect of which the related
Obligor, in addition to making his regularly scheduled payment in any Due
Period, makes one or more additional payments in such Due Period, such that the
Servicer, in accordance
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with its customary servicing procedures, (i) treats such additional
payments as a Principal Prepayment applied to reduce the principal balance of
the related Contract and (ii) does not require the Obligor to make a scheduled
payment in respect of such Contract for the number of Due Dates which
corresponds to the number of such additional scheduled payments.
"Pass-Through Rate" means ____% per annum, on the basis of a 360-day year
comprised of twelve 30-day months.
"Paying Agent" with respect to the Indenture means, the Indenture Trustee
or any other Person that meets the eligibility standards for the Indenture
Trustee specified in Section 6.11 of the Indenture and is authorized by the
Issuer to make the payments to and distributions from the Collection Account and
the Note Distribution Account, including payment of principal and interest on
the Notes on behalf of the Issuer. "Paying Agent" with respect to the Trust
Agreement means, any paying agent or co-paying agent appointed pursuant to
Section 3.9 of the Trust Agreement that meets the eligibility requirements of
Section 6.13 of the Trust Agreement.
"Person" means any legal person, including any individual, corporation,
partnership, joint venture, association, joint stock company, trust (including
any beneficiary thereof), unincorporated organization or government or any
agency or political subdivision thereof.
"Pool Balance" means the aggregate outstanding principal balance of the
Contracts.
"Post Cut-off Date Insurance Add-Ons" means Force-Placed Insurance Premiums
added to the Contracts on or after the Initial Cut-off Date with regard to each
Initial Contract, or on or after the related Subsequent Cut-off Date with regard
to each Subsequent Contract, which amounts are to be repaid to an account
separate from the Collection Account over the remaining life of such Contract.
"Pre-Funding Account" means the Pre-Funding Account established and
maintained in accordance with Section [ ] of the Sale and Servicing Agreement.
"Pre-Funded Amount" means, with respect to any Determination Date, the
amount on deposit in the Pre-Funding Account.
"Pre-Funding Earnings" means (i) with respect to the [July 17, 1995]
Distribution Date, the actual investment earnings earned on the Pre-Funded
Amount during the period beginning on the Closing Date through [July 16, 1995]
(inclusive), (ii) with respect to the [August 15, 1995] Distribution Date, the
actual investment earning earned on the Pre-Funded Amount during the period
beginning on [July 17, 1995] through [August 14, 1995] (inclusive), and (iii)
with respect to the [September 15, 1995] Distribution Date, the
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actual investment earnings earned on the Pre-Funded Amount during the period
beginning on [August 15, 1995] through [September 14, 1995] (inclusive).
"Predecessor Notes" with respect to any particular Note means, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for purposes of this definition, any Note
authenticated and delivered under Section 2.5 of the Indenture in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Principal Distribution Amount" equals the difference between (i) the Pool
Balance on the last day of the second preceding Due Period (or, in the case of
the first Distribution Date, the Initial Cut-off Date Pool Balance), less (ii)
the Pool Balance on the last day of the preceding Due Period; provided, however,
that the Principal Distribution Amount on the Class A Final Scheduled
Distribution Date will equal the outstanding principal balance of the Notes as
of such date and the Principal Distribution Amount on the Certificate Final
Distribution Date will equal the Certificate Balance on such date; provided
further, that for purposes of this calculation the Pool Balance shall be
adjusted to take into account the acquisition of any Subsequent Contracts. For
the purposes of determining the Principal Distribution Amount the unpaid
principal balance of a Defaulted Contract or a Repurchased Contract is deemed to
be zero on and after the last day of the Due Period in which such Contract
became a Defaulted Contract or a Repurchased Contract. The Principal
Distribution Amount will not exceed the outstanding principal balance of the
Notes or, after the Cross-Over Date, the Certificate Balance.
"Principal Liquidation Loss Amount" for any Distribution Date equals the
amount, if any, by which the sum of the aggregate outstanding principal balance
of the Notes and the Certificate Balance (after giving effect to all
distributions of principal on such Distribution Date) exceeds the sum of the
Pool Balance plus the amounts remaining on deposit in the Pre-Funding Account,
if any, at the close of business on the last day of the related Due Period.
"Principal Prepayment" means a payment or other recovery of principal on a
Contract (including any rebated portion of Force-Placed Insurance Premiums
received by CITSF on behalf of Obligors and Insurance Proceeds that are not
liquidation proceeds, but exclusive of liquidation proceeds) which is received
in advance of its Due Date and applied upon receipt (or, in the case of a
partial Principal Prepayment, upon the next scheduled payment date on such
Contract) to reduce the outstanding principal amount of such Contract prior to
the date or dates on which such principal amount is scheduled to be made.
"Principal Prepayment in Full" means any Principal Prepayment of the entire
principal balance of a Contract.
"Proceeding" means any suit in equity, action at law or other judicial or
administrative proceeding.
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"Purchase Agreement" means the Purchase Agreement dated as of [June 1,
1995], between the Seller and CITSF, as amended and supplemented from time to
time.
"Purchase Price" means, with respect to a Contract to be purchased under
Section [ ], [ ], [ ] or [ ] the Sale and Servicing Agreement, an
amount equal to the remaining principal amount outstanding on such Contract on
the date of purchase, plus 30 days' interest thereon in an amount equal to the
sum of (i) the product of one-twelfth of the weighted average of the
Pass-Through Rate and of the Class A Rate and the remaining principal amount
outstanding on the Contract and (ii) accrued and unpaid Servicing Fees thereon
at the Servicing Fee Rate to the date of such purchase.
"Rating Agencies" as of any date means, the nationally recognized
statistical rating organizations requested by the Seller to provide ratings of
the Notes and the Certificates which are rating the Notes and Certificates on
such date.
"Rating Agency Condition" with respect to any action means, the condition
that each Rating Agency shall have been given at least 10 days prior notice
thereof and that each of the Rating Agencies shall have notified the Seller, the
Servicer and the Issuer in writing that such action shall not result in a
downgrade or withdrawal of the then current rating of the Notes or Certificates.
"Record Date" means the day immediately preceding the related Distribution
Date or, in the event Definitive Securities have been issued, on the last day of
the month immediately preceding the month in which such Distribution Date
occurs.
"Recreational Vehicle" shall mean new or used motor homes, travel trailers
and truck campers.
"Redemption Date" means the Distribution Date specified by the Servicer or
the Issuer pursuant to Section 10.1(a) or (b) of the Indenture, as applicable.
"Relief Act Reduction" shall mean the reduction of the rate of interest
payable on any Contract to a rate below the Contract Rate pursuant to the
Soldiers' and Sailors' Civil Relief Act or the Military Reservist Relief Act.
"Repurchased Contract" means, for any Due Period, a Contract which CITSF or
the Servicer purchased effective as of a date preceding such Due Period pursuant
to Section [ ], [ ] or [ ] of the Sale and Servicing Agreement.
"Repurchase Event" shall mean (a) any Contract being subject to any right
of rescission, setoff, counterclaim or defense, including the defense of usury,
or (b) the operation of any of the terms of any Contract or the exercise of any
right thereunder (i) rendering such Contract unenforceable in whole or in part
or (ii) subjecting such Contract to
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any right of rescission, setoff, counterclaim or defense, including the
defense of usury; and in each case such condition materially adversely
affects the Trust's interest in such Contract.
"Responsible Officer" with respect to the Indenture Trustee or the Owner
Trustee means, any officer within the Corporate Trust Office of such trustee,
and, with respect to the Servicer, the President, any Vice President, Assistant
Vice President, Secretary, Assistant Secretary or any other officer or assistant
officer of such Person customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge and familiarity with the particular subject.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of [June 1, 1995], between the Seller, the Servicer and the Trust, as
amended and supplemented from time to time.
"Securities" means the Notes and the Certificates.
"Securities Act" means the Securities Act of 1933, as amended.
"Securityholders" means the Person in whose name a Note or Certificate is
registered on the Note Register or the Certificate Register, as applicable.
"Seller" means the Person executing the Sale and Servicing Agreement as the
Seller, or any successor in Interest to the Seller pursuant to the terms of the
Sale and Servicing Agreement.
"Service Transfer" has the meaning assigned in Section [ ] of the Sale and
Servicing Agreement.
"Servicer" means the Person executing the Sale and Servicing Agreement as
the Servicer, or any successor Servicer pursuant to a Service Transfer under the
Sale and Servicing Agreement.
"Servicer's Certificate" means a certificate, substantially in the form of
Exhibit D hereto, completed by and executed on behalf of the Servicer by a
Servicing Officer in accordance with Section [ ] of the Sale and Servicing
Agreement.
"Servicer's Errors and Omissions Protection Policy" means the errors and
omissions policy maintained by the Servicer or any similar replacement policy,
if any, pursuant to Section [ ] of the Sale and Servicing Agreement.
"Servicing Fee" means, as to any Distribution Date, the sum of (i)
one-twelfth of the product of 1.00% and the Pool Balance as of the second
preceding Due Period (or, in the case of the first Distribution Date, as of the
Initial Cut-off Date), based on the number of
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days in such Due Period and a 365-day year, and (ii) any Investment
Earnings on amounts on deposit in the Collection Account.
"Servicing Officer" means any officer of the Servicer involved in, or
responsible for, the administration and servicing of Contracts whose name
appears on a list of servicing officers appearing in an Officers' Certificate
furnished to the Trust by the Servicer, as the same may be amended from time to
time.
"Servicer Payment" with respect to a Distribution Date means, the sum of
the Servicing Fee for such Distribution Date and any unpaid Servicing Fees for
past Distribution Date.
"Simple Interest Contract" means a Contract as to which interest is
calculated each day on the basis of the actual principal balance outstanding on
such day.
"Soldiers' and Sailors' Civil Relief Act" means the Soldiers' and Sailors'
Civil Relief Act of 1940, as amended.
"Standard & Poor's" means Standard & Poor's Corporation Rating Group, a
division of McGraw-Hill, Inc. and its successors in interest.
"Stated Principal Balance" means, as of any Distribution Date, the unpaid
principal balance of a Contract at the end of the related Due Period.
"Subsequent Contracts" means one or more of the installment sale contracts
described in the List of Subsequent Contracts, which constitute part of the
corpus of the Trust, and which Contracts are to be assigned by the Company to
the Trust; including, without limitation, all related security interests,
collateral, liens, insurance policies and guarantees of the obligations of the
related Obligor (other than guarantees, if any, by the related Dealer) and any
and all rights to receive payments which are received pursuant thereto from and
after the Subsequent Cut-off Date, but excluding any rights to receive payments
which are received pursuant thereto prior to the Subsequent Cut-off Date.
"Subsequent Cut-off Date" means the beginning of business on the first day
of the month of the related Subsequent Transfer Date specified in a Subsequent
Transfer Agreement with respect to those Subsequent Contracts which are
transferred and assigned to the Trust pursuant to the related Subsequent
Transfer Agreement.
"Subsequent Financed Vehicle" means a Financed Vehicle with regard to a
Subsequent Contract.
"Subsequent Purchase Agreement" means a Subsequent Purchase Agreement dated
as of a Subsequent Cut-off Date between CITSF and the Company providing for the
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sale of Subsequent Contracts from CITSF to the Company and substantially in the
form of Exhibit [ ] to the Sale and Servicing Agreement.
"Subsequent Transfer Agreement" means each Subsequent Transfer Agreement
dated as of a Subsequent Transfer Date between the Trust and the Company
substantially in the form of Exhibit [ ] to the Sale and Servicing Agreement,
by which Subsequent Contracts are sold and assigned to the Trust.
"Temporary Notes" means the Notes specified in Section 2.3 of the
Indenture.
"TIA" or "Trust Indenture Act" means The Trust Indenture Act of 1939 as in
force on the date hereof, unless otherwise specifically provided.
"Treasury Regulations" means any proposed, temporary or final regulation
promulgated under the Code.
"Trust" means CIT RV Owner Trust 1995-A, a Delaware business trust created
by the Trust Agreement.
"Trust Agreement" means the Trust Agreement dated as of [June 1, 1995]
between the Seller and the Owner Trustee.
"Trust Estate" means all money, instruments, rights and other property that
are subject or intended to be subject to the lien and security interest of the
Indenture for the benefit of the Noteholders (including, without limitation, all
property and interest Granted to the Indenture Trustee), including any proceeds
thereof.
"Trust Indenture Act" or "TIA" means The Trust Indenture Act of 1939 as in
force on the date hereof, unless otherwise specifically provided.
"Trustees" means both the Indenture Trustee and the Owner Trustee.
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction.
"Undertaking Letter" means the letter referred to in Section 3.4 and 9.11
of the Trust Agreement.
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ARTICLE II
Conveyance of Contracts;
Acceptance by Trustee
Section 2.01 Conveyance of the Initial Contracts.
Subject to the conditions set forth in Section 2.02, on the Closing Date,
the Company shall sell, transfer, assign absolutely, set over and otherwise
convey to the Trust by execution of an assignment substantially in the form of
Exhibit F hereto, and the Trust shall purchase, (i) all the right, title and
interest of the Company in and to the Initial Contracts and all the rights,
benefits, and obligations arising from and in connection with each Initial
Contract, (ii) the interest of the Company in the security interests in the
Initial Financed Vehicles granted by the Obligors pursuant to the Initial
Contracts, (iii) all payments received by the Company on or with respect to the
Initial Contracts on or after the Initial Cut-off Date (exclusive of payments
with respect to Post Cut-off Date Insurance Add-Ons), (iv) the interest of the
Company in any Initial Financed Vehicle (including any right to receive future
Net Liquidation Proceeds) that secures the Initial Contracts and that shall have
been repossessed by the Servicer by or on behalf of the Trust; (v) all rights of
the Company to proceeds of Insurance Policies covering the Obligors and the
Initial Contracts, (vi) the proceeds from any Servicer's Errors and Omissions
Protection Policy, any fidelity bond and any blanket hazard policy, to the
extent such proceeds relate to any Initial Financed Vehicle, (vii) all rights of
recourse against any cosigner or under any personal guarantee with respect to
the Initial Contracts (other than any right as against a Dealer under a Dealer
Agreement), (viii) all amounts held for the Trust in the Collection Account,
(ix) all amounts held for the Trust in the Pre-Funding Account, (x) all amounts
held for the Trust in the Capitalized Interest Account, (xi) all proceeds in any
way derived from any of the foregoing items, and (xii) all documents contained
or required to be contained in the Contract Files relating to the Initial
Contracts. The parties intend and agree that the conveyance of the Company's
right, title and interest in and to the Initial Contracts pursuant to this
Agreement shall constitute an absolute sale.
The Company hereby declares and covenants that it shall at no time have any
legal, equitable or beneficial interest in, or any right, including without
limitation any reversionary or offset right, to the Collection Account, the
Pre-Funding Account and the Capitalized Interest Account and that, in the event
it receives any of the same, it shall hold same in trust for the benefit of the
Trust on behalf of the Securityholders and shall immediately endorse over to the
Trust any such amount it receives.
Section 2.02 Conveyance of the Subsequent Contracts.
Subject to the conditions set forth in Section 2.02, on the Closing Date,
the Company shall sell, transfer, assign, set over and otherwise convey to the
Trust by execution
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of an assignment substantially in the form of Exhibit F hereto, and the Trust
shall purchase, (i) all the right, title and interest of the Company in and to
the Initial Contracts and all the rights, benefits, and obligations arising from
and in connection with each Subsequent Contract, (ii) the interest of the
Company in the security interests in the Subsequent Financed Vehicles granted by
the Obligors pursuant to the Subsequent Contracts, (iii) all payments received
by the Company on or with respect to the Subsequent Contracts on or after the
Subsequent Cut-off Date (exclusive of payments with respect to Post Cut-off Date
Insurance Add-Ons), (iv) the interest of the Company in any Subsequent Financed
Vehicle (including any right to receive future Net Liquidation Proceeds) that
secures the Subsequent Contracts and that shall have been repossessed by the
Servicer by or on behalf of the Trust; (v) all rights of the Company to proceeds
of Insurance Policies covering the Obligors and the Subsequent Contracts, (vi)
the proceeds from any Servicer's Errors and Omissions Protection Policy, any
fidelity bond and any blanket hazard policy, to the extent such proceeds relate
to any Subsequent Financed Vehicle, (vii) all rights of recourse against any
cosigner or under any personal guarantee with respect to the Subsequent
Contracts (other than any right as against a Dealer under a Dealer Agreement),
(viii) all proceeds in any way derived from any of the foregoing items, and (ix)
all documents contained or required to be contained in the Contract Files
relating to the Subsequent Contracts. The parties intend and agree that the
conveyance of the Company's right, title and interest in and to the Subsequent
Contracts pursuant to this Agreement shall constitute an absolute sale. The
"purchase price" shall be one hundred percent (100%) of the aggregate Stated
Principal Balances of the Subsequent Contracts so transferred as of the related
Subsequent Cut-off Date.
Section 2.03 Acceptance by Trustee.
(a) On the Closing Date, the Owner Trustee shall deliver a certificate to
the Company substantially in the form of Exhibit [ ] hereto acknowledging
conveyance of the Initial Contracts and Contract Files relating thereto to the
Owner Trustee and declaring that the Owner Trustee, through the Servicer, as
custodian, pursuant to Section [ ], will hold all Contracts that have been
delivered in trust, upon the trusts herein set forth, for the use and benefit of
all Certificateholders and Noteholders, as their respective interests may
appear, subject to the terms and provisions of this Agreement and the Basic
Documents.
(b) On any Subsequent Transfer Date, the Owner Trustee shall deliver a
certificate to the Company substantially in the form of Exhibit G hereto
acknowledging conveyance of the Subsequent Contracts and Contract Files relating
thereto to the Owner Trustee and declaring that the Owner Trustee, through the
Servicer, as custodian, pursuant to Section 3.04, will hold all Contracts that
have been delivered in trust, upon the trusts herein set forth, for the use and
benefit of all Certificateholders and Noteholders, as their respective interests
may appear, subject to the terms and provisions of this Agreement and the Basic
Documents.
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ARTICLE III
Representations and Warranties; The Contracts
Section 3.01A. Representations and Warranties Regarding Each Contract.
The Initial Contracts have been sold by CITSF to the Company pursuant to
the Purchase Agreement. Any Subsequent Contracts will be sold by CITSF to the
Company pursuant to a Subsequent Purchase Agreement. In connection with such
sales, CITSF made the representations and warranties in Sections 3.01A, 3.01B,
3.01C and 8.01 of this Agreement to the Company (such representations and
warranties being incorporated in the Purchase Agreement and any Subsequent
Purchase Agreement) and assumed the obligations in Section 3.02 of this
Agreement. As a condition of the purchase by the Company, the Company has
required that CITSF make such representations and warranties directly to the
Trust and the Securityholders so that the Trust may recover directly against
CITSF on such representations and warranties rather than indirectly through
claims by the Company against CITSF. Consequently, CITSF represents and warrants
to the Trust and the Securityholders as to each Initial Contract as of the
Closing Date and as to each Subsequent Contract as of the related Subsequent
Transfer Date (except as otherwise expressly stated):
(a) List of Contracts. The information set forth in the List of Initial
Contracts or the List of Subsequent Contracts, as applicable, is true and
correct as of its Date.
(b) Payments. With respect to an Initial Contract, as of the Cut-off Date
(or the date of origination if later), the payment of principal and interest for
its Due Date next preceding the Cut-off Date was made by or on behalf of the
Obligor (without any advance from CITSF or any Person acting at the request of
CITSF) or was not delinquent for more than 59 days and, with respect to a
Subsequent Contract, as of the related Subsequent Cut-off Date (or the date of
origination, if later) the payment of principal and interest for its Due Date
next preceding the related Subsequent Cut-off Date was made by or on behalf of
the Obligor (without an advance from CITSF or any Person acting as the request
of CITSF) or was not more than 59 days delinquent.
(c) No Waivers. The terms of the Contract have not been waived, altered,
amended or modified in any respect, except by instruments or documents
identified in the Contract File with respect thereto, and no waiver, alteration,
amendment or modification has caused such Contract to fail to meet any of the
other representations and warranties made by CITSF with respect thereto.
(d) Binding Obligation. The Contract is the legal, valid and binding
obligation of the Obligor thereunder and is enforceable in accordance with its
terms, except as such enforceability may be limited by laws affecting the
enforcement of creditors' rights generally.
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(e) No Defenses. No facts which give rise to any right of rescission, set-
off, counterclaim or defense, including the defense of usury, by the Obligor,
have been asserted with respect to the Contract.
(f) Insurance. The Obligor on the Contract is required to maintain physical
damage insurance covering the related Financed Vehicle in accordance with
CITSF's normal requirements or, if not so covered, is covered by a blanket
insurance policy maintained by CITSF.
(g) Origination. The Contract was originated by a Dealer in the United
States of America and was purchased by CITSF or CITCF-NY in the ordinary course
of its business.
(h) Lawful Assignment. The Contract was not originated in and is not
subject to the laws of any jurisdiction whose laws would make the transfer of
the Contract to the Company under the Purchase Agreement in the case of an
Initial Contract, or under a Subsequent Purchase Agreement in the case of a
Subsequent Contract, the transfer of the Contract to the Trust under this
Agreement in the case of an Initial Contract, or under a Subsequent Transfer
Agreement in the case of a Subsequent Contract, or pursuant to transfers of
Securities, or the ownership of the Contracts by the Trust, unlawful.
(i) Compliance with Law. All requirements of any federal, state or local
law, including, without limitation, usury, truth in lending and equal credit
opportunity laws, applicable to the Contract have been complied with in all
material respects and such compliance is not affected by the Trust's ownership
of the Contracts, and CITSF shall for at least the period of this Agreement,
maintain in its possession, available for the Trust's inspection, and shall
deliver to the Trust upon demand, evidence of compliance with all such
requirements.
(j) Contract in Force. The Contract has not been satisfied or subordinated
in whole or in part or rescinded, and the Financed Vehicle securing the Contract
has not been released from the lien of the Contract in whole or in part.
(k) Valid Security Interest. The Contract creates a valid and enforceable
perfected first priority security interest in favor of CITSF, CITCF-NY or the
Dealer which originated such Contract in the Financed Vehicle covered thereby as
security for payment of the Initial Cut-off Date Principal Balance of such
Contract in the case of an Initial Contract or the Subsequent Cut-off Date
Principal Balance of such Contract in the case of a Subsequent Contract, which
security interest (if in favor of CITCF-NY or the Dealer) has been validly and
effectively assigned to CITSF. CITSF has assigned all of its right, title and
interest in such Contract, including the security interest in the Financed
Vehicle covered thereby, to the Company, and the Company has assigned all of its
right, title and interest in such Contract and such Financed Vehicle to the
Trust.
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(l) Notation of Security Interest. CITSF has taken all necessary action
with respect to the Contract to perfect the security interest in the Financed
Vehicle covered thereby in favor of CITSF. With respect to each Contract, if the
related Financed Vehicle is located in a state in which notation of a security
interest on the title document is required or permitted to perfect such security
interest, the title document shows, or if a new or replacement title document
with respect to such Financed Vehicle is being applied for such title document
will be issued within 180 days and will show, CITSF as the holder of a first
priority security interest in such Financed Vehicle; if the related Financed
Vehicle is located in a state in which the filing of a financing statement under
the UCC is required to perfect a security interest in a Recreational Vehicle,
such filings or recordings have been duly made and show CITSF as secured party.
(m) Capacity of Parties. All parties to the Contract had legal capacity to
execute the Contract.
(n) Good Title. CITSF purchased the Contract for fair value and took
possession thereof in the ordinary course of its business, without knowledge
that the Contract was subject to a security interest in favor of a third party.
Neither CITSF nor the Company has sold, assigned or pledged the Contract to any
person other than the Company or the Trust, respectively. Prior to the transfer
of the Contract by CITSF to the Company and by the Company to the Trust, CITSF
or the Company, respectively, had good and marketable title thereto free and
clear of any encumbrance, equity, loan, pledge, charge, claim or security
interest and was the sole owner thereof with full right to transfer the Contract
to the Company and the Trust, respectively. The Company paid fair value to CITSF
for the Contracts. Immediately upon the transfer thereof, the Trust for the
benefit of the Securityholders shall acquire good and marketable title to each
Contract free and clear of any encumbrance, equity, loan, pledge, charge, claim
or security interest, and the transfer thereof shall have been perfected under
applicable law.
(o) No Defaults. As of the Initial Cut-off Date for each Initial Contract,
and as of the related Subsequent Cut-off Date for each Subsequent Contract,
there was no default, breach, violation or event permitting acceleration
existing under the Contract and no event which, with notice and the expiration
of any grace or cure period, would constitute such a default, breach, violation
or event permitting acceleration under such Contract (except payment
delinquencies permitted by clause (b) above). CITSF has not waived any such
default, breach, violation or event permitting acceleration except payment
delinquencies permitted by clause (b) above.
(p) No Liens. As of the Closing Date for each Initial Contract, and as of
the related Subsequent Transfer Date for each Subsequent Contract, there are, to
the best of CITSF's knowledge, no liens or claims which have been filed for
work, labor or materials affecting the Financed Vehicle securing the Contract
which are or may be liens prior to, or equal or coordinate with, the lien of the
Contract.
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(q) Equal Installments. The Contract is a Simple Interest Contract and
provides for level monthly payments which provide interest at the stated
Contract Rate and, if paid in accordance with its schedule, fully amortize the
loan over its original term.
(r) Enforceability. The Contract contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the collateral of the benefits of the
security, except as enforceability of such provisions may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by the availability of equitable remedies.
(s) Obligor Not a Governmental Entity. The Obligor on the Contract is not
the United States of America or any state or any agency, department,
instrumentality or political subdivision thereof.
(t) Obligor Not Subject to Bankruptcy Proceedings. The Obligor on the
Contract was not in a bankruptcy proceeding as of the Initial Cut-off Date for
each Initial Contract or as of the related Subsequent Cut-off Date for each
Subsequent Contract.
(u) No Repossession. As of the Initial Cut-off Date for each Initial
Contract, or as of the related Subsequent Cut-off Date for each Subsequent
Contract, the Financed Vehicle which secured the Contract has not been
repossessed without reinstatement.
(v) Obligor Not a Relief Act Obligor. If (i) the Obligor on the Contract is
in the military (including an Obligor who is a member of the National Guard or
is in the reserves) and (ii) the Contract is subject to the Soldiers' and
Sailors' Civil Relief Act of 1940, as amended (the "Soldiers' and Sailors' Civil
Relief Act") or the California Military Reservist Relief Act of 1991 (the
"Military Reservist Relief Act"), such Obligor has not made a claim to CITSF
that
(A) the amount of interest on the related Contract should be limited
to 6% pursuant to the Soldiers' and Sailors' Civil Relief Act during the
period of such Obligor's active duty status, or
(B) payments on such Contract should be delayed pursuant to the
Military Reservist Relief Act,
in either case, unless a court has ordered otherwise upon application of CITSF.
(w) Only One Original. There is only one original executed copy of the
Contract, which, immediately prior to the execution of the Agreement, was in the
possession of CITSF.
(x) Contract is Chattel Paper. The Contract is "chattel paper" as defined
in the New Jersey UCC.
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(y) Selection Criteria. As of the Initial Cut-off Date for each Initial
Contract, or as of the related Subsequent Cut-off Date for each Subsequent
Contract, the Contract satisfies the eligibility criteria discussed in the
Prospectus for the Securities under the heading "The Contract Pool-General".
Section 3.01B. Representations and Warranties Regarding the Contracts
in the Aggregate.
CITSF represents and warrants to the Trust and the Securityholders, that:
(a) Amounts. The aggregate principal amounts payable by Obligors under the
Initial Contracts as of the Initial Cut-off Date equal the Initial Cut-off Date
Pool Principal Balance.
(b) Characteristics. The Contracts have the following characteristics as of
the Initial Cut-off Date:
(i) each Contract is secured by a Financed Vehicle which is a new or
used Recreational Vehicle;
(ii) each Contract has a fixed Contract Rate, which is equal to or
greater than [ ]%;
(iii) the original term to maturity, as it may have been amended, of
each Contract is between [ ] and [ ] months;
(iv) each Contact has a Stated Principal Balance of not less than
$[ ] and not more than $[ ];
(v) no Contract has a remaining term to maturity of less than [ ]
months or more than [ ] months;
(vi) the final scheduled payment date on the Contract with the latest
maturity is in [ ] and the final scheduled payment dates on the Contracts
range from [ ] to [ ];
(vii) all of the Contracts were originated between [ ] and
[ ]; and
(viii) not more than [ ]% of the Contracts by Initial Cut-off Date
Pool Principal Balance are located in any one state (except Contracts
secured by Financed Vehicles located in California and [ ]
which represent approximately [ ]% and [ ]%, respectively, of the
Initial Cut-off Date Pool Principal Balance).
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(c) Computer Tape. As of Closing Date, in the case of the Initial
Contracts, and as of the related Subsequent Transfer Date, in the case of any
Subsequent Contracts, the Computer Tape made available by the Servicer was
complete and accurate as of its date and includes a description of the same
Contracts that are described in the List of Initial Contracts or the applicable
List of Subsequent Contracts, as the case may be.
(d) Marking Records. By the Closing Date in the case of the Initial
Contracts or by the related Subsequent Transfer Date in the case of the
Subsequent Contracts, CITSF has caused the portions of the Electronic Ledger
relating to the Contracts constituting part of the Trust to be clearly and
unambiguously marked to indicate that such Contracts constitute part of the
Trust and are owned by the Trust in accordance with the terms of the trust
created hereunder.
(e) No Adverse Selection. No adverse selection procedures have been
employed in selecting the Contracts from the recreational vehicle installment
sale contracts owned by CITSF which were purchased by CITSF from CITCF-NY or
Dealers, except that CITSF did not select any such contract which would cause a
breach of any representation or warranty of CITSF contained in this Agreement
that would materially adversely affect the Trust's interest in such contract.
Section 3.01C. Representations and Warranties Regarding the Contract Files.
CITSF represents and warrants to the Trust and the Securityholders that:
(a) Possession. Immediately prior to the Closing Date in the case of the
Initial Contracts, or the Subsequent Transfer Date in the case of the Subsequent
Contracts, CITSF will have possession of each original Contract and the related
Contract File, and there are and there will be no custodial agreements in effect
materially and adversely affecting the right of CITSF to make, or to cause to be
made, any delivery required in connection with the conveyance of the Contracts
to the Company or from the Company to the Trust.
(b) Bulk Transfer Laws. The transfer, assignment and conveyance of the
Contracts and the Contract Files from CITSF to the Company and from the Company
to the Trust are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction.
Section 3.02 Repurchase of Contracts for Breach of Representations and
Warranties.
(a) Subject to Section 3.02(b), CITSF shall repurchase a Contract, at its
Repurchase Price, not later than 85 days after CITSF receives written notice
from the Trustees or the Servicer, or not later than 90 days after CITSF
otherwise becomes aware, of (i) a breach of any representation or warranty of
CITSF set forth in Section 3.01A or 3.01B of this Agreement that materially
adversely affects the Trust's interest in such Contract and
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which breach has not been cured or (ii) the occurrence of a Repurchase
Event which has not been cured. CITSF shall effect such repurchase by paying to
the Servicer for deposit in the Collection Account on the Deposit Date in the
month following the month in which the loan was repurchased the aggregate of the
Repurchase Price of all Contracts that are required to be repurchased pursuant
to the preceding sentence. With respect to any Contract incorrectly described on
the List of Initial Contracts or any List of Subsequent Contracts, as the case
may be, only with respect to remaining unpaid principal balance, which CITSF
would otherwise be required to repurchase pursuant to this Section 3.02, CITSF
may, in lieu of repurchasing such Contract, deposit in the Certificate Account,
not later than one Business Day after the first Determination Date which is more
than 90 days after CITSF becomes aware or receives written notice from the
Trustees or the Servicer of such incorrect description, cash in an amount
sufficient to cure such deficiency or discrepancy. CITSF shall send written
notice of any such cash deposit to the Rating Agencies as promptly as possible
following such deposit. Notwithstanding any other provision of the Agreement,
the obligation of CITSF under this Section shall not terminate upon a Service
Transfer pursuant to Article VII.
(b) Promptly after the repurchase referred to in Section 3.02(a), the Trust
shall execute such documents as are presented to it by CITSF and are reasonably
necessary to reconvey the repurchased Contract to CITSF.
(c) The repurchase obligation of CITSF set forth in this Section 3.02 shall
constitute the sole remedy available to the Trust and the Securityholders for a
breach of representation and warranty hereunder with respect to the Contracts
(but not with respect to any other breach by CITSF of its obligations hereunder,
as set forth herein).
Section 3.03 Custody of Contract Files.
To assure uniform quality in servicing the Contracts and to reduce
administrative costs, the Trust, upon the execution and delivery of this
Agreement, revocably appoints the Servicer, and the Servicer accepts such
appointment, to act as the agent of the Trust as custodian of the Contract File
with respect to each Contract, each of which are hereby constructively delivered
to the Trust.
Section 3.04 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer, in its capacity as custodian, shall hold the
Contract Files on behalf of the Trust for the use and benefit of the Trust and
maintain such accurate and complete accounts, records and computer systems
pertaining to the Contracts as shall enable the Owner Trustee and the Indenture
Trustee to comply with its obligations pursuant to this Agreement and the Basic
Documents.
As custodian, the Servicer shall have and perform the following powers and
duties:
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(i) hold the Contract Files on behalf of the Trust, maintain accurate
records pertaining to each Contract to enable it to comply with the terms
and conditions of this Agreement, maintain a current inventory thereof,
conduct annual physical inspections of Contract Files held by it under this
Agreement and certify to the Trust annually that it continues to maintain
possession of such Contract Files;
(ii) implement policies and procedures in writing and signed by a
Servicing Officer, with respect to persons authorized to have access to the
Contract Files on the Servicer's premises and the receipting for Contract
Files taken from their storage area by an employee of the Servicer for
purposes of servicing or any other purposes; and
(iii) attend to all details in connection with maintaining custody of
the Contract Files on behalf of the Trust.
In performing its duties under this Section 3.04, the Servicer agrees to
act with reasonable care, consistent with the same degree of skill and care that
it exercises with respect to similar contracts serviced by it for its own
account. The Servicer shall promptly report to the Trust any failure by it to
hold the Contract Files as herein provided and shall promptly take appropriate
action to remedy any such failure. In acting as custodian of the Contract Files,
the Servicer agrees further not to assert any beneficial ownership interests in
the Contracts or the Contract Files. The Servicer agrees to indemnify the Trust,
the Certificateholders, the Noteholders, the Owner Trustee and the Indenture
Trustee for any and all liabilities, obligations, losses, damages, payments,
costs, or expense of any kind whatsoever which may be imposed on, incurred or
asserted against the Trust, the Certificateholders, the Noteholders, the Owner
Trustee and the Indenture Trustee as the result of any act or omission by the
Servicer relating to the maintenance and custody of the Contract Files;
provided, however, that the Servicer will not be liable for any portion of any
such amount resulting from the negligence or willful misconduct of the Trust,
the Certificateholders, the Noteholders, the Owner Trustee and the Indenture
Trustee.
(b) Maintenance of and Access to Records. The Servicer, in its capacity as
custodian, agrees to maintain the related Contract Files at its office in the
State of Oklahoma, or at such of its offices as shall from time to time be
identified to the Trust by written notice. The Servicer, in its capacity as
custodian, may temporarily move individual Contract Files or any portion thereof
without notice as necessary to conduct collection and other servicing activities
in accordance with its customary practices and procedures.
The Servicer, in its capacity as custodian, shall make available to the
Trust or its duly authorized representatives, attorneys or auditors the Contract
Files and the related accounts, records and computer systems maintained by the
Servicer at such times during normal operating hours as the Trust shall
reasonably instruct which does not unreasonably interfere with the Servicer's
normal operations or customer or employee relations.
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(c) Release of Documents. Upon instruction from the Trust, the Servicer, in
its capacity as custodian, shall release or cause to be released any document in
the Contract Files to the Trust, the Trust's agent or the Trust's designee, as
the case may be, at such place or places as the Trust may designate, as soon as
practicable. The Servicer, in its capacity as custodian, shall not be
responsible for any loss occasioned by the failure of the Trust, its agent or
its designee to return any document or any delay in doing so.
Section 3.05 Instructions; Authority to Act.
The Servicer shall be deemed to have received proper instructions from
either of the Trustees with respect to the Contract Files upon its receipt of
written instructions signed by a Responsible Officer. A certified copy of a
by-law or of a resolution of the Board of Directors of the Owner Trustee or the
Indenture Trustee, as applicable, shall constitute conclusive evidence of the
authority of any such Responsible Officer to act and shall be considered in full
force and effect until receipt by the Servicer of written notice to the contrary
given by the Trust.
Section 3.06 Effective Period and Termination. The Servicer's appointment
as custodian shall become effective as of the Closing Date and shall continue in
full force and effect until terminated pursuant to this Section 3.06 or until
this Agreement shall be terminated. The Servicer may perform its duties as
custodian through one or more agents, which agents may maintain physical
possession of Contract Files as agent for the Servicer acting as custodian. If
the Servicer shall resign as Servicer under Section 8.05 or if all of the rights
and obligations of the Servicer shall have been terminated under Section 9.01,
the appointment of the Servicer as custodian may be terminated by the Indenture
Trustee or by the Holders of Notes evidencing not less than a majority of the
aggregate outstanding principal balance of the Notes as of the close of the
preceding Distribution Date (or, if the Notes have been paid in full and the
Indenture has been discharged in accordance with its terms, by the Owner Trustee
or by the Holders of Certificates evidencing not less than a majority of the
Certificate Balance as of the close of the preceding Distribution Date), in the
same manner as rights and obligations of the Servicer may be terminated under
Section 9.01. The Trust may terminate the Servicer's appointment as custodian at
any time with cause upon written notification to the Servicer. As soon as
practicable after any termination of such appointment, the Servicer shall
deliver the Contract Files to the Trust or the Trust's agent at such place or
places as the Trust may reasonably designate. The Servicer shall cooperate with
the Trust in making the transfer and shall bear all of the Servicer's costs and
expenses with respect to such transfer, but the Trust shall bear the actual
costs and expenses of packing and transporting the Contract Files to the
location designated by the Trust. Notwithstanding the termination of the
Servicer as custodian, the Trust agrees that upon any such termination, the
Trust shall provide, or cause its agent to provide, access to the Contract Files
to the Servicer for the purpose of carrying out its duties and responsibilities
with respect to the servicing of the Contracts hereunder.
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ARTICLE IV
Administration and Servicing of Contracts
Section 4.01 Duties of Servicer.
(a) The Servicer, as agent for the Trust, shall manage, administer, service
and make collections on the Contracts and perform or cause to be performed all
contractual and customary undertakings of the holder of the Contracts to the
Obligor. The Trust, at the request of a Servicing Officer, shall furnish the
Servicer with any reasonable documents or take any action reasonably requested,
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
(b) In managing, administering, servicing and making collections on the
Contracts pursuant to this Agreement, the Servicer will exercise the same degree
of skill and care that the Servicer exercises with respect to similar contracts
serviced by the Servicer for its own account.
(c) The Servicer may enter into subservicing agreements with one or more
subservicers (which shall be Eligible Servicers) for the servicing and
administration of certain of the Contracts. References in this Agreement to
actions taken, to be taken, permitted to be taken, or restrictions on actions
permitted to be taken, by the Servicer in servicing the Contracts shall include
actions taken, to be taken, permitted to be taken, or restrictions on actions
permitted to be taken, by a subservicer on behalf of the Servicer. Each
subservicing agreement will be upon such terms and conditions as are not
inconsistent with this Agreement and the standard of care set forth herein and
as the Servicer and the subservicer have agreed. All compensation payable to a
subservicer under a subservicing agreement shall be payable by the Servicer from
its servicing compensation or otherwise from its own funds, and none of the
Trust, the Owner Trustee, the Indenture Trustee, the Certificateholders or the
Noteholders will have any liability to the subservicer with respect thereto.
Notwithstanding any subservicing agreement or any of the provisions of this
Agreement relating to agreements or any arrangements between the Servicer or a
subservicer or any reference to actions taken through such Persons or otherwise,
the Servicer shall remain obligated and liable to the Trust, the Owner Trustee,
the Indenture Trustee, the Certificateholders and the Noteholders for the
servicing and administering of the Contracts and the other Trust property in
accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such subservicing agreements.
Any subservicing agreement that may be entered into and any other
transactions or servicing arrangements relating to the Contracts and the other
Trust property involving a subservicer in its capacity as such and not as CITSF
shall be deemed to be between the subservicer and the Servicer alone, and the
Owner Trustee, the Indenture
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Trustee, the Certificateholders and the Noteholders shall not be deemed
parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the subservicer except as set forth in the next
succeeding paragraph.
In the event the Servicer shall for any reason no longer be acting as such,
the successor Servicer may, in its discretion, thereupon assume all of the
rights and obligations of the outgoing Servicer under a subservicing agreement.
In such event, the successor Servicer shall be deemed to have assumed all of the
Servicer's interest therein and to have replaced the outgoing Servicer as a
party to each such subservicing agreement to the same extent as if such
subservicing agreement had been assigned to the successor Servicer, except that
the outgoing Servicer shall not thereby be relieved of any liability or
obligations on the part of the outgoing Servicer to the subservicer under such
subservicing agreement. The outgoing Servicer shall, upon request of the Trust,
but at the expense of the outgoing Servicer, deliver to the successor Servicer
all documents and records relating to each such subservicing agreement and the
Contracts and other Trust property then being serviced thereunder and an
accounting of amount collected and held by it and otherwise use its best efforts
to effect the orderly and efficient transfer of any subservicing agreement to
the successor Servicer. In the event that the successor Servicer elects not to
assume a subservicing agreement, the outgoing Servicer, at its expense, shall
cause the subservicer to deliver to the successor Servicer all documents and
records relating to the Contracts and the other Trust property being serviced
thereunder and all amounts held (or thereafter received) by such subservicer
(together with an accounting of such amounts) and shall otherwise use its best
efforts to effect the orderly and efficient transfer of servicing of the
Contracts and the other Trust property being serviced by such subservicer to the
successor Servicer.
(d) The Servicer's duties shall include collection and posting of all
payments, responding to inquiries by Obligors or by federal, state or local
governmental authorities with respect to the Contracts, investigating
delinquencies, reporting tax information to Obligors, administering and
enforcing Insurance Policies in accordance with its customary practices,
accounting for collections, furnishing monthly and annual statements to the
Trust with respect to distributions, and making Monthly Advances pursuant to
Section 5.03.
The Servicer shall be authorized and empowered by the Trust to execute and
deliver, on behalf of itself, the Trust, the Owner Trustee, the Indenture
Trustee, the Certificateholders, the Noteholders, or any of them, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Contracts
or with respect to the Financed Vehicles.
Upon written request of the Servicer and receipt by the Trust of an
Officer's Certificate setting forth the facts underlying such request, the Trust
shall furnish the Servicer with any limited powers of attorney and other
documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder and the Trust shall not be held
liable for such actions of the Servicer thereunder.
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Section 4.02 Collection of Contract Payments. The Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Contracts as and when the same shall become due, and in
connection therewith shall follow such collection procedures as it follows with
respect to comparable new or used recreational vehicle installment sale
contracts that it services for itself. The Servicer shall not reduce scheduled
payments, extend any Contract or otherwise modify the terms of any Contract;
provided, however, that the Servicer may extend any Contract for credit related
reasons that would be acceptable to the Servicer with respect to comparable new
or used recreational vehicles that it services for itself or others, if (a) the
maturity of such Contract would not be extended beyond [ ] and
(b) the reducing, rescheduling, extension or other modification of the terms of
the Contract would not constitute a cancellation of such Contract and the
creation of a new installment sale contract. If, as a result of rescheduling or
extending of payments or any other modification, such rescheduling, extension or
modification breaches any of the terms of the preceding sentence, then the
Servicer shall be obligated to purchase such Contract pursuant to Section 4.07
as of the last day of the Due Period on which it became aware or receives
written notice from the Trust of such failure. The Servicer may, in accordance
with its customary standards, policies and procedures, in its discretion waive
any Late Fees that may be collected in the ordinary course of servicing a
Contract.
Section 4.03 Realization Upon Contracts.
(a) The Servicer will, consistent with customary servicing procedures and
the terms of this Agreement, act with respect to the Contracts in such manner as
will maximize the receipt of principal and interest on the Contracts and Net
Liquidation Proceeds in respect of Defaulted Contracts.
Notwithstanding the standard of care specified in Section 4.01, the
Servicer shall commence procedures for the repossession of any Financed Vehicle
or take such other steps that in the Servicer's reasonable judgment will
maximize the receipt of principal and interest or Net Liquidation Proceeds with
respect to the Contract secured by such Financed Vehicle, subject to the
requirements of the applicable state and federal law. In connection with such
repossession or foreclosure, the Servicer shall follow such practices and
procedures as it shall deem necessary or advisable and as shall be consistent
with Section 4.01. In the event that title to any Financed Vehicle is acquired
in foreclosure or by conveyance in lieu of foreclosure, the deed or certificate
of sale shall be issued to the Trust, or, at its election, to its nominee on
behalf of the Trust.
(b) The Servicer shall be entitled to recover all reasonable fees of third
parties and expenses incurred by it in the course of converting any Financed
Vehicle into cash proceeds including, without limitation, expenses relating to
recovery and repossession of such Financed Vehicles, from liquidation proceeds
with respect to such Financed Vehicle. The Net Liquidation Proceeds realized in
connection with any such action with respect to a Contract shall be deposited by
the Servicer in the Collection Account in the manner specified
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in Section 5.02 and shall be applied to reduce (or to satisfy, as the case
may be) the Purchase Price of the Contract, if such Contract is to be purchased
by CITSF pursuant to Section 3.02, is to be purchased by the Servicer pursuant
to Section 4.07, or is to be purchased by CITSF pursuant to Section 11.02. The
foregoing shall be subject to the provision that, in any case in which the
Financed Vehicle shall have suffered damage, the Servicer shall not expend funds
in connection with the repair or the repossession of such Financed Vehicle
unless it shall determine in its sole discretion that such repair and/or
repossession will increase the Net Liquidation Proceeds of the related Contract
by an amount equal to or greater than the amount of such expenses.
(c) The Servicer may sue to enforce or collect upon Contracts, including
foreclosure of any security interest on a Financed Vehicle, in its own name, if
possible, or as agent for the Trust. If the Servicer elects to commence a legal
proceeding to enforce a Contract or any Insurance Policy in respect thereof, the
act of commencement shall be deemed to be an automatic assignment of the
Contract to the Servicer for purposes of collection only. If, however, in any
enforcement suit or legal proceeding it is held that the Servicer may not
enforce a Contract on the ground that it is not a real party in interest or a
holder entitled to enforce the Contract, the Trust shall, at the Servicer's
expense, take such steps as the Servicer deems necessary to enforce the
Contract, including bringing suit in its name or the names of the
Securityholders.
(d) Prior to a Service Transfer, the Servicer may grant to the Obligor on
any Contract any rebate, refund or adjustment out of the Collection Account that
the Servicer in good faith believes is required because of Principal Prepayment
in Full. The Servicer will not permit any rescission or cancellation of any
Contract.
(e) The Servicer may enforce any due-on-sale clause in a Contract if such
enforcement is called for under its then current servicing policies for
obligations similar to the Contracts, provided that such enforcement is
permitted by applicable law and will not adversely affect any applicable
insurance policy.
Section 4.04 Physical Damage Insurance.
(a) The Servicer, in accordance with its customary servicing procedures,
shall require that each Obligor shall have obtained and shall maintain physical
damage insurance covering the Financed Vehicle. The Servicer shall enforce its
rights under the Contracts to require the Obligors to maintain physical damage
insurance, in accordance with the Servicer's customary practices and procedures
with respect to comparable new or used recreational installment sale contracts
that it services for itself or others. If an Obligor fails to maintain such
insurance, the Servicer shall obtain and advance on behalf of such Obligor, as
required under the terms of the insurance policy, the premiums for such
insurance, with uninsured physical damage loan insurance endorsements, each
naming the Servicer as an additional insured and loss payee, and issued by an
insurer having a rating of ["A" or better by A.M. Best] (such insurance being
referred to herein as "Force-Placed Insurance"). Such
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Force-Placed Insurance shall be, to the extent permitted by law, in an
amount at least equal to the outstanding principal balance of the related
Contract. The Servicer does not, under its customary servicing procedures,
require Force-Placed Insurance when the principal balance of the related retail
installment sale contract or installment loan falls below the level or levels
periodically established in accordance with such customary servicing procedures.
In accordance with such customary servicing procedures, the Servicer may
periodically readjust such levels, suspend Force-Placed Insurance or arrange
other methods of protection of the Financed Vehicles that it deems necessary or
advisable, provided that the Servicer determines that such actions do not
materially and adversely affect the interests of the Trust, the Owner Trustee,
the Indenture Trustee, the Certificateholders or the Noteholders. Post Cut-off
Date Insurance Add-Ons will not be added to the Scheduled Principal Balance of
the related Contract, and amounts allocable thereto will not be available for
distribution on the Securities. The Servicer shall not deposit payments posted
with respect to Post Cut-off Date Insurance Add-Ons in the Collection Account
and shall instead promptly pay such amounts to an account maintained for that
purpose. In the event that an Obligor under a Contract with respect to which the
Servicer has advanced funds to obtain Force-Placed Insurance makes scheduled
payments under the Contract (other than with respect to the Post Cut-off Date
Insurance Add-Ons), but has failed to make scheduled payments of such Post
Cut-off Date Insurance Add-Ons as due, and the Servicer has determined that
eventual payment of such amount is unlikely, the Servicer may, but shall not be
required to, take any action available to it, including determining that the
related Contract is a Defaulted Contract; provided, however, that any Net
Liquidation Proceeds with respect to such Contract shall be applied first to the
accrued and unpaid interest at the Contract Rate, then to the principal amount
outstanding, and the remainder, if any, to the Post Cut-off Date Insurance
Add-Ons.
(b) The Servicer may, in lieu of causing individual Insurance Policies to
be maintained with respect to each Financed Vehicle pursuant to subsection (a)
of this Section 4.04 maintain one or more blanket insurance policies covering
losses on the Obligor's interest in the Contracts resulting from the absence or
insufficiency of individual Insurance Policies. The Servicer shall maintain one
or more blanket insurance policies covering theft of the Financed Vehicles to
the extent that the Obligor's individual insurance policy does not cover theft
of the Financed Vehicle. The proceeds of any such blanket insurance policies
relating to the Contracts shall be deposited in the Collection Account as
collections on the Contracts in accordance with the provisions of Article V
hereof.
Any such blanket policy shall be substantially in the form and in the
amount carried by the Servicer as of the date of this Agreement. The Servicer
shall pay the premium for such policy on the basis described therein. The
Servicer shall not, however, be required to deposit any deductible amount with
respect to (a) claims under individual Hazard Insurance Policies maintained
pursuant to subsection (a) of this Section 4.04, or (b) claims under any blanket
insurance policy. If the insurer under such blanket insurance policy shall cease
to be acceptable to the Servicer, the Servicer shall exercise its best
reasonable efforts to obtain from another insurer a replacement policy
comparable to such policy. The Servicer
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shall provide each Rating Agency with notice of the occurrence of any event
specified in the preceding sentence.
Section 4.05 Maintenance of Security Interests in Financed Vehicles;
Retitling.
(a) The Servicer, in accordance with its customary servicing procedures,
shall take such steps as are necessary to maintain perfection of the security
interest created by each Contract in the related Financed Vehicle in favor of
CITSF. The Servicer hereby agrees to take such steps as are necessary to
re-perfect such security interest in the name of CITSF in the event of the
relocation of a Financed Vehicle to a jurisdiction other than the jurisdiction
in which steps had been taken to perfect the security interest in favor of
CITSF. In the event that the assignment of the Contract to the Trust is
insufficient without a notation on the related Financed Vehicle's certificate of
title, to grant to the Trust a perfected security interest in the related
Financed Vehicle, CITSF hereby agrees to serve as the Trust's agent for the
purpose of perfecting the security interest in such Financed Vehicle and that
CITSF's listing as the secured party on the certificate of title is in the
capacity as agent of the Trust.
(b) If, at any time, a Service Transfer has occurred and CITSF is no longer
the Servicer, and the new Servicer is unable to foreclose upon a Financed
Vehicle because the title document for such Financed Vehicle does not show such
Servicer or the Trust as the holder of the first priority security interest in
the Financed Vehicle, such Servicer shall take all necessary steps to apply for
a replacement title document showing it or the Trust as the secured party.
(c) In order to facilitate the Servicer's actions, as described in
subsection 4.05(b), CITSF will provide the Servicer with any necessary power of
attorney permitting it to retitle the Financed Vehicle.
The Company hereby appoints the Trust its attorney-in-fact for the purposes
to endorse, as appropriate, the certificate of title relating to any Financed
Vehicle in order to cause a change in the registration of legal owner of the
Financed Vehicle to the Trust at such time as such certificate of title is
endorsed and delivered to the Department of Motor Vehicles of the State of
California (or any other state department of motor vehicles) with appropriate
fees. The Company will provide the Trust with any necessary power of attorney
for such purpose.
(d) If the Servicer is still unable to retitle the Financed Vehicle, CITSF
will take all actions necessary to act with the Servicer to foreclose upon the
Financed Vehicle, including, as appropriate, the filing of any UCC-1 or UCC-2
financing statements necessary to perfect the security interest in any Financed
Vehicle.
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Section 4.06 Covenants of Servicer. The Servicer shall make the following
covenants on which the Owner Trustee and Indenture Trustee will rely in
accepting the Contracts in trust and executing and authenticating the
Certificates and the Notes:
(i) Security Interest to Remain in Force. The Financed Vehicle
securing each Contract shall not be released from the security interest
granted by the Contract in whole or in part except as contemplated herein;
(ii) No Impairment. The Servicer shall not impair the rights of the
Trust in the Contracts or take any action inconsistent with the Trust's
ownership of the Contracts, except as expressly provided herein;
(iii) Amendments. The Servicer shall not increase the number of
payments under a Contract, nor increase the principal amount of such
Contract which is used to finance the purchase price of the related
Recreational Vehicles, nor extend or forgive payments on a Contract, except
as provided in Section 4.02; and
(iv) Compliance with Insurance Policies. The Servicer shall not fail
to comply with the provisions of any Insurance Policy, if the failure to so
comply would impair the protection or benefit to be afforded by such
Insurance Policies.
Section 4.07 Purchase of Contracts Upon Breach.
The Servicer or the Trustees, as the case may be, shall inform the other
parties promptly, in writing, upon the discovery of any breach by the Servicer
of its covenants under Section 4.06 which materially adversely affects the
Trust's interest in any Contract. The Trustees shall not be deemed to have
discovered such a breach until such time as a Responsible Officer of the
Trustees receives written notice of such breach. Except as otherwise specified
in Section 4.02, unless the breach shall have been cured, the Servicer shall
purchase such Contract, at its Purchase Price, not later than the first
Determination Date which is more than 60 days after the Servicer receives
written notice from the Trustees, or not later than 60 days after the Servicer
otherwise becomes aware of, a breach of any representation or warranty of the
Servicer in Section 4.06 of this Agreement that materially and adversely affects
the Trust's interest in such Contract. The Servicer shall effect such purchase
by depositing, in accordance with Section 5.04, the Purchase Price of such
Contract (less any Net Liquidation Proceeds deposited, or to be deposited, by
the Servicer in the Collection Account with respect to such Contract pursuant to
Section 5.02) in the Collection Account on the Deposit Date immediately
preceding the Determination Date referred to in the preceding sentence. The
effective date of such purchase shall be the last day of the Due Period
preceding such Determination Date. The sole remedy of the Trust, the Owner
Trustee, the Indenture Trustee, the Certificateholders or the Noteholders
against the Servicer with respect to a breach pursuant to Section 4.06 or
Section 4.02 shall be to require the Servicer to purchase Contracts pursuant to
this Section 4.07.
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Section 4.08 Servicing Fee.
The Servicing Fee for a Distribution Date shall be equal to the sum of (i)
the product of the Servicing Fee Rate and the Pool Balance as of the last day of
the second preceding Due Period (or, in the case of the first Distribution Date,
as of the Initial Cut-off Date), based on the number of days in such Due Period
and a 365-day year, and (ii) any investment earnings on amounts on deposit in
the Collection Account. In addition, the Servicer will be entitled to collect
and retain any Late Fees received by the Servicer from Obligors during the
preceding Due Period.
Section 4.09 Servicer's Certificate.
On or before each Determination Date, the Servicer shall furnish a report
(the "Monthly Report"), which shall be in substantially the form of Exhibit
[ ], to the Owner Trustee, the Indenture Trustee, any Paying Agent and (if
CITSF is not the Servicer) CITSF. The determination by the Servicer of the
amount of the distributions to be made pursuant to Section 5.05 shall, in the
absence of obvious error, be presumptively deemed to be correct for all purposes
hereunder, and the Trustees shall be protected in relying upon the same without
any independent check or verification. The Servicer shall also specify in the
Monthly Report each Contract which CITSF or the Servicer is required to purchase
as of the last day of the related Due Period and each Contract which the
Servicer shall have determined to be a Defaulted Contract or a Liquidated
Contract during such Due Period. The Trustees shall not be required to
recompute, verify or recalculate information contained in the Servicer's
Certificate.
Each Monthly Report shall be accompanied by a certificate of a Servicing
Officer substantially in the form of Exhibit D, certifying the accuracy of the
Monthly Report and that no Event of Termination or event that with notice or
lapse of time or both would become an Event of Termination has occurred, or if
such event has occurred and is continuing, specifying the event and its status.
In addition, the Servicer shall, on request of the Trustees, furnish the
Trustees such underlying data as can be generated by the Servicer's existing
data processing system without undue modification or expense.
Section 4.10 Annual Statement as to Compliance.
(a) The Servicer shall deliver to the Trustees within 90 days after the end
of each calendar year commencing March 31, 1995, a certificate signed by the
president, the treasurer or any vice president of the Servicer, stating that (i)
a review of the activities of the Servicer during the preceding calendar year of
its performance under this Agreement has
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been made under such officer's supervision and (ii) to the best of such
officer's knowledge, based on such review, the Servicer has fulfilled all its
obligations under this Agreement throughout such preceding calendar year, or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof.
(b) The Servicer shall deliver to the Trustees, promptly after having
obtained knowledge thereof, an Officer's Certificate specifying any event which
with the giving of notice or lapse of time, or both, would become an Event of
Termination under clause (i) or (ii) of Section 9.01. The Company shall deliver
to the Trustees, promptly after having obtained knowledge thereof, an Officer's
Certificate specifying any event which with the giving of notice or lapse of
time, or both, would become an Event of Termination under clause (i) or (ii) of
Section 9.01.
Section 4.11 Annual Report of Accountants. Within 90 days after the end of
each calendar year, commencing March 31, 1995, the Servicer, at its expense,
shall cause a firm of independent public accountants which is a member of the
American Institute of Certified Public Accountants to furnish a statement to the
Trustee to the effect that such firm has, with respect to the Servicer's overall
servicing operations, examined such operations in accordance with the
requirements of the Uniform Single Audit Program for Mortgage Bankers, and
stating such firm's conclusions relating thereto. Copies of the annual statement
of accountants shall also be provided to each Rating Agency.
Section 4.12 [Reserved]
Section 4.13 Reports to Securityholders and the Rating Agencies.
(a) Concurrently with each distribution charged to the Certificate
Distribution Account and the Note Distribution Account, the Owner Trustee and
the Indenture Trustee, respectively, so long as it has received the Monthly
Report from the Servicer, shall forward or cause to be forwarded by mail to each
Securityholder, such Monthly Report.
(b) The Servicer shall forward to each Rating Agency each letter of the
Independent certified public accountants' described in Section 4.11, each
Servicer's Certificate, each annual statement as to compliance described in
Section 4.10 and each statement to Securityholders described in Section 5.08.
Section 4.14 Maintenance of Fidelity Bond and Errors and Omission Policy.
The Servicer shall during the term of its service as servicer maintain in
force (a) at such time as the long-term debt of its parent is rated less than
[A] by Standard & Poor's or less than [A3] by Moody's, a policy or policies of
insurance covering errors and omissions for failure to maintain insurance as
required by this Agreement, and (b) a fidelity
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bond in respect of its officers, employees and agents. Such policy or
policies and such fidelity bond shall be in such form and amount as is generally
customary among Persons which service a portfolio of recreational vehicle
installment sale contracts having an aggregate principal amount of $100,000,000
or more and which are generally regarded as servicers acceptable to
institutional investors.
Section 4.15 Trustees to Cooperate.
Upon payment in full on any Contract, the Servicer will notify the Trustees
by certification of a Servicing Officer (which certification shall include a
statement to the effect that all amounts received in connection with such
payments which are required to be deposited in the Collection Account pursuant
to Section 5.05 have been so deposited). The Servicer is authorized to execute
an instrument in satisfaction of such Contract and to do such other acts and
execute such other documents as the Servicer deems necessary to discharge the
Obligor thereunder and eliminate the security interest in the Financed Vehicle
related thereto. The Servicer shall determine when a Contract has been paid in
full. To the extent that insufficient payments are received on a Contract
credited by the Servicer as prepaid or paid in full and satisfied, the shortfall
shall be paid by the Servicer out of its own funds.
Section 4.16 Costs and Expenses.
Except as provided in Section 4.03, all costs and expenses incurred by the
Servicer in carrying out its duties hereunder, including all fees and expenses
incurred in connection with the enforcement of Contracts (including enforcement
of Defaulted Contracts and repossessions of Financed Vehicles securing such
Contracts), shall be paid by the Servicer and the Servicer shall not be entitled
to reimbursement hereunder.
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ARTICLE V
Distributions; Statements to Certificateholders
Section 5.01 Collection Account, Pre-Funding Account and Capitalized
Interest Account.
(a) (i) On or before the Closing Date, there shall be established and
maintained in the name of the Indenture Trustee, for the benefit of the
Noteholders and Certificateholders, with a Qualified Institution an account
known as the "CIT RV Owner Trust 1995-A Collection Account" (the "Collection
Account"), bearing an additional designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders and
Certificateholders.
(ii) On or before the Closing Date, there shall be established and
maintained in the name of the Indenture Trustee, for the benefit of the
Noteholders, with a Qualified Institution an account known as the "CIT RV Owner
Trust 1995-A Note Distribution Account" (the "Note Distribution Account"),
bearing an additional designation clearly indicating that the funds deposited
therein are held for the benefit of the Noteholders.
(iii) On or before the Closing Date, pursuant to the Trust Agreement, there
shall be established and maintained in the name of the Owner Trustee, for the
benefit of the Certificateholders, an account known as the "CIT RV Owner Trust
1995-A Certificate Distribution Account" (the "Certificate Distribution
Account"), bearing an additional designation clearly indicating that the funds
deposited therein are held for the benefit of the Certificateholders.
(b) Pre Funding Account and Capitalized Interest Account.
(i) On or before the Closing Date, there shall be established and
maintained the Pre-Funding Account and the Capitalized Interest Account, in the
name of the Owner Trustee, on behalf of the Trust with an Eligible Institution.
If, at any time during the Funding Period, the Pre-Funding Account or the
Capitalized Interest Account ceases to be maintained with an Eligible
Institution, the Indenture Trustee (or the Servicer on its behalf) shall within
five (5) Business Days (or such longer period, not to exceed thirty (30)
calendar days, as to which the Rating Agency may consent) establish a new
Pre-Funding Account or Capitalized Interest Account meeting the condition
specified above, transfer any cash and/or any investments to such new
Pre-Funding Account or Capitalized Interest Account and from the date such new
Pre-Funding Account or Capitalized Interest Account is established, they shall
be the "Pre-Funding Account" or "Capitalized Interest Account", as appropriate.
The Pre-Funding Account shall be entitled the "CIT RV Owner Trust 1995-A
Pre-Funding Account". The Capitalized Interest Account shall be entitled the
"CIT RV Owner Trust 1995-A Capitalized Interest Account". Each of the
Pre-Funding Account and the Capitalized Interest Account shall bear an
additional designation clearly indicating that the
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funds on deposit therein are held for the benefit of, and owned by, the
Trust. On the Closing Date, the Trust will deposit the Original Pre-Funded
Amount into the Pre-Funding Account and deposit the Initial Capitalized Interest
Deposit into the Capitalized Interest Account.
(ii) On any Subsequent Transfer Date, the Servicer shall instruct the Owner
Trustee to withdraw from the Pre-Funding Account an amount equal to 100% of the
unpaid principal balance thereof as of the related Subsequent Cut-off Date of
the Subsequent Contracts sold to the Trust on such Subsequent Transfer Date and
pay such amount to or upon the order of Company with respect to such transfer.
In no event shall the Servicer be permitted to instruct the Owner Trustee to
release from the Pre-Funding Account with respect to Subsequent Contracts to be
transferred to the Trust an amount in excess of the Original Pre-Funded Amount.
(iii) On the Distribution Dates occurring in July, August and September of
1995, the Owner Trustee shall withdraw from the Pre-Funding Account and deposit
in the Collection Account for payment to the Holders of the Securities on such
Distribution Dates, Pre-Funding Earnings in an amount equal to the difference,
if any, between (x) the sum of the amount of Interest payable to the Noteholders
on such Distribution Date and the amount of Interest payable to the
Certificateholders on such Distribution Date and (y) that portion of the Amount
Available allocated to make such interest payments on such Distribution Dates.
On such Distribution Dates, such funds, if any, shall be used first to pay to
the Noteholders, to the extent available, the Pre-Funding Earnings so withdrawn
such that the Noteholders will receive such amounts of interest due on such
Distribution Date, and second, to pay to the Certificateholders, to the extent
available, the remaining Pre-Funding Earnings so withdrawn such that the
Certificateholders will receive such amounts of interest due on such
Distribution Date.
(iv) On the last day of the Funding Period (or, if such day is not a
Business Day, on the next succeeding Business Day) (but in no event later than
the September 1995 Distribution Date) the Servicer shall instruct the Owner
Trustee to withdraw from the Pre-Funding Account and the Capitalized Interest
Account, and the Owner Trustee shall so withdraw, the difference, if any,
between (A) the sum of the Original Pre-Funded Amount and the Initial
Capitalized Interest Deposit, and (B) all amounts theretofore withdrawn from the
Pre-Funding Account with respect to the purchase and transfer to the Trust of
Subsequent Contracts, and the Owner Trustee shall deposit such amounts into the
Note Distribution Account. Such amounts will used to prepay the principal amount
of the outstanding Notes, [on a sequential basis], on the Distribution Date
immediately following the Funding Period or if the end of the Funding Period is
on a Distribution Date, then on such date.
(v) Any Pre-Funding Earnings on deposit in the Pre-Funding Account on the
last day of the Funding Period which were not distributed to the Securityholders
pursuant to Section 5.05(b)(iii) shall be deposited in the Collection Account
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on such date and shall constitute part of the Amount Available on the first
Distribution Date thereafter or, if the end of the Funding Period is on a
Distribution Date, then on such date.
(c) The Eligible Institution maintaining the accounts described in this
Section 5.01 shall, in the name of the Trust invest such amounts on deposit
solely in Eligible Investments that mature not later than one Business Day prior
to the next succeeding Distribution Date, in accordance with instructions
provided to the Trustees by the Servicer in writing. Once such funds are
invested, such Eligible Institution shall not change the investment of such
funds. Notwithstanding the foregoing, amounts deposited in the Collection
Account from funds on deposit in the Pre-Funding Account pursuant to Section
5.05(b) may not be invested at all. All net income and gain from the investment
of funds in the accounts described in this Section 5.01 shall be deposited in
the accounts in which such net investment income and gain was earned. All income
and gain realized from any such investment of funds in the Collection Account
(to the extent investment of such funds is permitted hereunder) shall be for the
benefit of the Servicer and may be withdrawn by the Servicer on each
Distribution Date pursuant to subsection 8.02(i). All income and gain realized
from any such investment of funds in the Pre-Funding Account and the Capitalized
Interest Account shall be distributed as provided in Section 5.05(b). An amount
equal to any net loss on such investments shall be deposited in the Collection
Account by the Servicer out of its own funds, without right to reimbursement,
immediately as realized. "Eligible Investments" are any of the following:
(i) direct obligations of, and obligations fully guaranteed by, the
United States of America, the Federal Home Loan Mortgage Corporation, the
Federal National Mortgage Association, or any agency or instrumentality of
the United States of America the obligations of which are backed by the
full faith and credit of the United States of America and which are
non-callable;
(ii) (A) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by, or federal funds sold by any depository
institution or trust company (including the Trustees or any Affiliate of
the Trustees, acting in their commercial capacity) incorporated under the
laws of the United States of America or any state thereof and subject to
supervision and examination by federal and/or state authorities, so long
as, at the time of such investment or contractual commitment providing for
such investment, the commercial paper or other short-term debt obligations
of such depository institution or trust company have been rated at least
[P- 1] or higher from Moody's and (B) any other demand or time deposit or
certificate of deposit which is fully insured by the Federal Deposit
Insurance Corporation;
(iii) repurchase obligations with respect to any security described in
either clause (i) or (ii) above and entered into with any institution whose
commercial paper is at least rated [P-1] from Moody's;
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(iv) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or
any State thereof which have a credit rating of at least Aa from Moody's at
the time of such investment;
(v) commercial paper having a rating of at least [P-1] from Moody's at
the time of such investment; and
(vi) money market funds are rated [Aaa] or [P-1] by Moody's,
including, without limitation, the [ ] Money Market Fund or any other fund
for which the Trustees or an affiliate of the Trustees serves as an
investment advisor, administrator, shareholder servicing agent and/or
custodian or subcustodian, notwithstanding that (i) such Trustee or an
affiliate of such Trustee charges and collects fees and expenses from such
funds for services rendered, (ii) such Trustee charges and collects fees
and expenses for services rendered pursuant to this instrument, and (iii)
services performed for such funds and pursuant to this instrument may
converge at any time. (The Seller and the Servicer specifically authorize
such Trustee or an affiliate of such Trustee to charge and collect all fees
and expenses from such funds for services rendered to such funds, in
addition to any fees and expenses such Trustee may charge and collect for
services rendered pursuant to this instrument).
The Trustees may trade with themselves, each other, or with an Affiliate on
an arm's length basis in the purchase or sale of such Eligible Investments.
Section 5.02 Collections; Applications.
(a) Deposits to Collection Account. Subject to subsections 5.02(b) and (c),
the Servicer shall deposit in the Collection Account, no later than two Business
Days after the Closing Date, any amounts representing payments received on the
Contracts on or after the Initial Cut-off Date through and including the Closing
Date. Subject to subsections 5.02(b) and (c), the Servicer shall deposit in the
Collection Account as promptly as practicable (not later than the second
Business Day) following the receipt thereof by the Servicer, all amounts
received in respect of the Contracts, including all loan payments from Obligors,
Net Liquidation Proceeds and Insurance Proceeds.
(b) Monthly Deposits to Collection Account. Notwithstanding anything in
this Agreement to the contrary, for so long as, and only so long as,
(i) CITSF shall remain the Servicer hereunder and CITSF remains a
direct or indirect subsidiary of The CIT Group Holdings, Inc., if The CIT
Group Holdings, Inc. shall have and maintain a short-term debt rating of at
least [A-1] by Standard &
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Poor's and either a short-term debt rating of [P-1] or a long-term debt
rating of at least [A2] by Moody's, or
(ii) the Servicer obtains a letter of credit, surety bond or insurance
policy (the "Servicer Letter of Credit") under which demands for payment
will be made to secure timely remittance of monthly collections to the
Collection Account and the Trustee is provided with a letter from each
Rating Agency to the effect that the utilization of such alternative
remittance schedule will not result in a qualification, reduction or
withdrawal of its then-current rating of the Certificates,
the Servicer may make the deposits to the Collection Account specified in
subsection 5.05(a) on a monthly basis, but not later than the Deposit Date
immediately preceding the Distribution Date following the last day of the Due
Period within which such payments were processed by the Servicer, in an amount
equal to the net amount of such deposits and payments which would have been made
to the Collection Account during such Due Period but for the provisions of this
subsection 5.02(b).
(c) Amounts Not Required to be Deposited. The Servicer will not be required
to deposit in the Collection Account amounts relating to the Contracts
attributable to the following:
(i) amounts received with respect to each Contract (or property
acquired in respect thereof) that has been purchased by CITSF or the
Servicer pursuant to the Agreement and that are not required to be
distributed to Securityholders,
(ii) net investment earnings on funds deposited in the Collection
Account,
(iii) amounts received as Late Fees,
(iv) amounts received in respect of Post Cut-off Date Insurance
Add-ons,
(v) amounts received as liquidation proceeds, to the extent the
Servicer is entitled to reimbursement of liquidation expenses relating
thereto pursuant to Section 4.03, and
(vi) amounts to be reimbursed to the Servicer in respect of
Nonrecoverable Advances.
(d) Permitted Withdrawals from the Collection Account. The Indenture
Trustee will, from time to time as provided herein, make withdrawals from the
Collection Account of amounts deposited in said account pursuant to this
Agreement that are attributable to the Contracts for the following purposes:
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(i) to make payments and distributions in the amounts and in the
manner provided for in Section 5.05;
(ii) to pay to CITSF or the Servicer with respect to each Contract or
property acquired in respect thereof that has been purchased pursuant to
Section 3.02, 4.02, 4.07, 11.02 or 11.03, all amounts received thereon and
not required to be distributed to Certificateholders;
(iii) to withdraw any amount deposited in the Collection Account that
was not required to be deposited therein; and
(iv) to reimburse the Servicer out of liquidation proceeds for
liquidation expenses incurred by it, to the extent such reimbursement is
permitted under Section 4.03 and to the extent such expenses have not
otherwise been reimbursed.
Since, in connection with withdrawals pursuant to clauses (ii) and (iv) of
this subsection 5.02(d), CITSF's entitlement thereto is limited to collections
or other recoveries on the related Contract, the Servicer shall keep and
maintain separate accounting, on a Contract by Contract basis, for the purpose
of justifying any withdrawal from the Collection Account pursuant to such
clause. The Servicer shall keep and maintain an accounting for the purpose of
justifying any withdrawal from the Collection Account pursuant to clause (iii)
of this subsection 5.02(d).
Section 5.03 Monthly Advances. With respect to each Contract as to which
there has been an Interest Shortfall during the related Due Period (other than
an Interest Shortfall arising from either (i) a Principal Prepayment in Full of
a Contract or (ii) a Contract which has been subject to a Relief Act Reduction
during such Due Period), the Servicer shall make a Monthly Advance in the amount
of such Interest Shortfall, but only to the extent the Servicer, in its good
faith judgment, expects to recoup such Monthly Advance from subsequent payments
of interest by or on behalf of the Obligors, Net Liquidation Proceeds or
proceeds from Insurance Policies with respect to the related Contract. The
Servicer shall not be obligated to make any advance to the Trust in respect of
the principal component of scheduled payments on any Contract which is not paid
during the Due Period in which they are due.
The Servicer shall deposit any such Monthly Advance into the Collection
Account in next-day funds or immediately available funds no later than 12:00
noon, New York time, on the related Deposit Date. The Servicer shall be
reimbursed for any such Monthly Advance by subsequent collections in respect of
interest on such Contract made by or on behalf of the Obligor, and Net
Liquidation Proceeds or proceeds from Insurance Policies with respect to such
Contract. If an unreimbursed Monthly Advance shall become a
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Nonrecoverable Advance, the Servicer shall be reimbursed from collections
on all the Contracts in the Trust in the order of priority set forth in Section
5.05.
Section 5.04A Non-Reimbursable Payments. On each Deposit Date, the
Servicer shall make a deposit (a "Non-Reimbursable Payment") to the Collection
Account in respect of each Contract for which there has been an Interest
Shortfall during the preceding Due Period arising either from a Principal
Prepayment in Full or a Relief Act Reduction in respect of such Contract during
such Due Period, in an amount equal to the Interest Shortfall.
The Servicer shall deposit the aggregate amount of Non-Reimbursable
Payments in respect of a Due Period into the Collection Account at the time and
in the manner specified in Section 5.03. The Servicer shall not be entitled to
reimbursement for any Non-Reimbursable Payment.
Section 5.04 Additional Deposits. CITSF and the Servicer, as the case may
be, shall deposit into the Collection Account the aggregate Purchase Price
pursuant to Sections 3.02, 4.02, 4.07 and 11.02, as applicable. All remittances
shall be made to the Collection Account, in next-day funds or immediately
available funds, no later than 12:00 noon, New York time, on the related Deposit
Date.
Section 5.05 Distributions.
(a) On or before the Determination Date preceding a Distribution Date, the
Servicer will make a determination and inform the Indenture Trustee and the
Owner Trustee of the following amounts with respect to the preceding Due Period:
(i) the aggregate amount of collections on the Contracts; (ii) the aggregate
amount of Monthly Advances to be remitted by the Servicer; (iii) the aggregate
Purchase Price of Contracts to be purchased by CITSF or the Servicer; (iv) the
aggregate amount to be distributed as principal and interest on the Notes on the
related Distribution Date; (v) the aggregate amount to be distributed as
principal and interest on the Certificates on the related Distribution Date;
(vi) the Servicing Fee; (vii) the Guarantee Fee, (viii) the aggregate amount of
Non-Reimbursable Payments and (ix) the aggregate amount of unreimbursed Monthly
Advances to be reimbursed to the Servicer.
(b) On or before the Determination Date preceding a Distribution Date, the
Servicer will make a determination and inform CIT of the amount of the Guarantee
Payment required to be deposited into the Collection Account by CIT pursuant to
the Limited Guarantee.
(c) On each Distribution Date the Indenture Trustee will withdraw the
Amount Available from the Collection Account to make the following payments (to
the extent sufficient funds are available therefor) in the following order and
priority:
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(i) the aggregate amount of any unreimbursed Monthly Advances made by
the Servicer (and which are then due to be reimbursed to the Servicer)
shall be paid to the Servicer;
(ii) the Servicer Payment (to the extent not previously retained)
shall be paid to the Servicer;
(iii) the Class A Interest Distribution Amount, including any
Outstanding Class A Interest and, to the extent permitted by applicable
law, interest thereon at the Class A Rate, will be deposited into the Note
Distribution Account, for payment to the Noteholders;
(iv) on and prior to the Cross-over Date, the Principal Distribution
Amount, including any Outstanding Principal, will be deposited into the
Note Distribution Account, for payment to the Noteholders;
(v) the Certificate Interest Distribution Amount, including any
Outstanding Certificate Interest and, to the extent permitted by applicable
law, interest thereon at the Pass-Through Rate, will be deposited into the
Certificate Distribution Account, for payment to the Certificateholders;
(vi) prior to the Cross-over Date, the Principal Liquidation Loss
Amount, if any, will be deposited into the Certificate Distribution
Account, for payment to the Certificateholders;
(vii) subsequent to the Cross-over Date, the Principal Distribution
Amount, including any Outstanding Principal, will be deposited into the
Certificate Distribution Account, for payment to the Certificateholders;
(viii) the Guarantee Fee shall be paid to CIT; and
(ix) the balance, if any, shall be distributed to the holder of the GP
Interest.
(d) On each Distribution Date, the Indenture Trustee and the Owner Trustee
shall distribute all amounts in the Note Distribution Account and the
Certificate Distribution Account, respectively, to the Noteholders and the
Certificateholders, respectively.
(e) Notwithstanding the foregoing, following the payment in full of all
principal and interest required hereunder to be paid to the holders of the Notes
and Certificates, CIT will be entitled to receive from the Amount Available an
amount equal to the aggregate of all Guarantee Payments made by CIT under the
Limited Guarantee prior to any distributions being made to the holder of the GP
Interest described in subsection (c)(ix) above.
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Section 5.06 [Reserved]
Section 5.07 Net Deposits. CITSF (in whatever capacity) may make the
remittances pursuant to Sections 4.03, 5.02 and 5.04 above, net of amounts to be
retained by it or distributed to it (also in whatever capacity), pursuant to
Section 5.03 or 5.05, for so long as (a) it shall be the Servicer and (b) it
will be entitled, pursuant to Section 5.02, to make deposits on a monthly basis,
rather than a daily basis. Nonetheless, the Servicer shall account for all of
the above-described amounts as if such amounts were deposited and distributed
separately.
Section 5.08 Statements to Certificateholders. On each Distribution Date,
the Servicer shall prepare and include with the distribution to each
Securityholder, a statement setting forth for the related Due Period the
following information:
(i) the amount of the distribution allocable to principal of the Notes
and to the Certificate Balance of the Certificates, including any overdue
principal;
(ii) the amount of the distribution allocable to interest on or with
respect to each class of Securities, including any overdue interest;
(iii) the Pool Balance, the Note Pool Factor and the Certificate Pool
Factor as of the end of the related Due Period;
(iv) the Servicer Payment for such Distribution Date;
(v) the amount of Monthly Advances and Non-Reimbursable Payments on
such date;
(vi) the aggregate principal balance of all Contracts which were
delinquent 30, 60 and 90 days or more as of the last day of the related Due
Period;
(vii) during the Funding Period, the amount of funds on deposit in the
Pre-Funding Account;
(viii) during the Funding Period, the number and aggregate principal
balance of Subsequent Contracts;
(ix) during the Funding Period, the number and aggregate principal
balance of Subsequent Contracts purchased by the Trust on the related
Distribution Date;
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(x) the aggregate outstanding principal balance of the Notes as of
such Distribution Date after giving effect to any distributions on such
Distribution Date; and
(xi) the Certificate Balance as of such Distribution Date after giving
effect to any distributions on such Distribution Date.
Within a reasonable period of time after the end of each calendar year, the
Servicer shall furnish or cause to be furnished to each Person who at any time
during the calendar year was a Securityholder a statement containing the
information with respect to interest accrued and principal paid on its
Securities during such calendar year. Such obligation shall be deemed to have
been satisfied to the extent that substantially comparable information shall be
provided to the Securityholders pursuant to any requirements of the Code as from
time to time in force.
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ARTICLE VII
The Company
Section 7.01 Representations of Company.
The Company hereby makes the following representations as to itself on
which the Owner Trustee and the Indenture Trustee on behalf of the Trust shall
rely in accepting the Contracts in trust and authenticating the Certificates and
the Notes, respectively. The representations shall speak as of the execution and
delivery of this Agreement, and shall survive the sale of the Contracts to the
Trust.
(i) Organization and Good Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the corporate power to own its
assets and to transact the business in which it is currently engaged. The
Company is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a material
adverse effect on the business, properties, assets, or condition (financial
or other) of the Company or on the Certificates or the transactions
contemplated by this Agreement.
(ii) Authorization; Binding Obligations. The Company has the power and
authority to make, execute, deliver and perform this Agreement and all of
the transactions contemplated under this Agreement, and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement. When executed and delivered, this Agreement
will constitute the legal, valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement of such
terms may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally and by the availability of
equitable remedies.
(iii) No Consent Required. The Company is not required to obtain the
consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement the failure of
which so to obtain would have a material adverse effect on the business,
properties, assets or condition (financial or otherwise) of the Company or
on the Certificates or the transactions contemplated by this Agreement.
(iv) No Violations. The execution, delivery and performance of this
Agreement by the Company will not violate any provision of any existing law
or
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regulation or any order or decree of any court or the Articles of
Incorporation or Bylaws of the Company, or constitute a material breach of
any mortgage, indenture, contract or other agreement to which the Company
is a party or by which the Company may be bound.
(v) Litigation. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending, or to
the knowledge of the Company threatened, against the Company or any of its
properties or with respect to this Agreement or the Certificates which, if
adversely determined, would in the opinion of the Company have a material
adverse effect on the transactions contemplated by this Agreement.
Section 7.02 Merger or Consolidation of Company.
Any Person into which the Company may be merged or consolidated, or any
corporation resulting from any merger or consolidation to which the Company
shall be a party, or any Person succeeding to the business of the Company, shall
be the successor of the Company hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. The Company shall promptly notify each
Rating Agency of any such merger to which it is a party.
Section 7.03 Limitation on Liability of the Company and Others.
(a) Neither the Company nor any of the directors, officers, employees or
agents of the Company shall be under any liability to the Owner Trustee, the
Indenture Trustee, the Certificateholders or the Noteholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; notwithstanding anything herein to
the contrary, no party to this Agreement shall have any recourse against the
Company for any actions taken, or failed to be taken, by the Company.
(b) The Company and any director, officer, employee or agent of the Company
may rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising hereunder.
(c) The Company shall not be under any obligation to appear in, prosecute
or defend any legal action which arises under this Agreement.
Section 7.04 The Company May Own Securities.
The Company and any Person controlling, controlled by, or under common
control with the Company may in its individual or any other capacity become the
owner or pledgee of Notes or Certificates with the same rights as it would have
if it were not the Company or an Affiliate thereof, except as otherwise provided
in the definition of
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"Noteholder" or "Certificateholder", respectively. Notes and Certificates
so owned by or pledged to the Company or such controlling or commonly controlled
Person shall have an equal and proportionate benefit under the provisions of
this Agreement, without preference, priority or distinction as among all of the
Notes and Certificates.
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ARTICLE VIII
The Servicer; Representations and Indemnities
Section 8.01 Representations of CITSF.
CITSF hereby makes the following representations on which the Owner Trustee
and the Indenture Trustee on behalf of the Trust shall rely in accepting the
Contracts in trust and authenticating the Certificates and the Notes,
respectively. The representations shall speak as of the execution and delivery
of this Agreement, and shall survive the sale of the Contracts to the Trust.
(i) Organization and Good Standing. CITSF is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the corporate power to own its
assets and to transact the business in which it is currently engaged. CITSF
is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a material
adverse effect on the business, properties, assets, or condition (financial
or other) of CITSF or on the Certificates or the transactions contemplated
by the Agreement.
(ii) Authorization; Binding Obligations. CITSF has the power and
authority to make, execute, deliver and perform this Agreement and all of
the transactions contemplated under this Agreement, and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement. When executed and delivered, this Agreement
will constitute the legal, valid and binding obligation of CITSF
enforceable in accordance with its terms, except as enforcement of such
terms may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally and by the availability of
equitable remedies.
(iii) No Consent Required. CITSF is not required to obtain the consent
of any other party or any consent, license, approval or authorization from,
or registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement the failure of which so to obtain would
have a material adverse effect on the business, properties, assets or
condition (financial or otherwise) of CITSF or on the Certificates or the
transactions contemplated by the Agreement.
(iv) No Violations. The execution, delivery and performance of this
Agreement by CITSF will not violate any provision of any existing law or
regulation or any order or decree of any court or the Articles of
Incorporation or Bylaws of
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CITSF, or constitute a material breach of any mortgage, indenture,
contract or other agreement to which CITSF is a party or by which CITSF may
be bound.
(v) Litigation. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending, or to
the knowledge of CITSF threatened, against CITSF or any of its properties
or with respect to this Agreement or the Certificates which, if adversely
determined, would in the opinion of CITSF have a material adverse effect on
the transactions contemplated by this Agreement.
Section 8.02 Liability of Servicer, Indemnities.
The Servicer shall be liable in accordance herewith only to the extent of
the obligations specifically undertaken by the Servicer, CITSF or the Company
under this Agreement and shall have no other obligations or liabilities
hereunder.
(i) The Servicer shall defend, indemnify, and hold harmless the Owner
Trustee, the Indenture Trustee, the Trust, the Certificateholders and the
Noteholders from and against any and all costs, expenses, losses, damages,
claims, and liabilities, arising out of or resulting from the negligent use
or operation by the Servicer of a Financed Vehicle, to the extent such loss
is not reimbursed pursuant to any Insurance Policy, the Servicer's Errors
and Omission Policy or any fidelity bond.
(ii) Subject to Section 8.04(a), the Servicer will defend and
indemnify the Owner Trustee, the Indenture Trustee, the Trust, the
Certificateholders and the Noteholders against any and all costs, expenses,
losses, damages, claims and liabilities arising out of or resulting from
any negligent action taken, or negligently failed to be taken, by the
Servicer with respect to any Financed Vehicle, to the extent such loss is
not reimbursed pursuant to any Insurance Policy, the Servicer's Errors and
Omission Policy or any fidelity bond.
(iii) The Servicer agrees to pay, and shall indemnify, defend, and
hold harmless the Owner Trustee, the Indenture Trustee, the Trust, the
Certificateholders and the Noteholders from and against, any taxes that may
at any time be asserted with respect to, and as of the date of, the
transfer of the Contracts to the Trust, including, without limitation, any
sales, gross receipts, personal or real property, privilege or license
taxes (but not including any federal, state or other taxes arising out of
the creation of the Trust and the issuance of the Notes and Certificates or
distributions with respect thereto) and costs, expenses and reasonable
counsel fees in defending against the same.
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(iv) The Servicer shall indemnify, defend, and hold harmless the Owner
Trustee, the Indenture Trustee, the Trust, the Certificateholders and the
Noteholders from and against any and all costs, expenses, losses, claims,
damages, and liabilities to the extent that such cost, expense, loss,
claim, damage, or liability arose out of, or was imposed upon such Persons,
through the willful misfeasance, negligence, or bad faith of the Servicer
in the performance of its duties under this Agreement or by reason of
reckless disregard of its obligations and duties under this Agreement.
(v) The Servicer shall indemnify, defend, and hold harmless the
Trustees from and against all costs, expenses, losses, claims, damages, and
liabilities arising out of or incurred in connection with the acceptance or
performance of the trusts and duties herein contained, except to the extent
that such cost, expense, loss, claim, damage or liability: (a) shall be due
to the willful misfeasance, gross negligence or bad faith of such Trustee;
(b) relates to any tax other than the taxes with respect to which the
Company shall be required to indemnify such Trustee pursuant to this
Agreement; (c) shall arise from such Trustee's breach of any of its
representations or warranties set forth in the Trust Agreement or the
Indenture, as applicable; (d) shall be one as to which the Company is
required to indemnify such Trustee or (e) shall arise out of or be incurred
in connection with the acceptance or performance by such Trustee of the
duties of successor Servicer hereunder.
Indemnification under this Section 8.02 shall include reasonable fees and
expenses of counsel and expenses of litigation appointed by the Servicer and
reasonably satisfactory to the indemnitee and the Servicer shall only be
required to pay the fees and expenses of one counsel in any single litigation
(or related proceedings) for all indemnitees. If the Servicer or the Company
shall have made any indemnity payments pursuant to this Section 8.02 and the
recipient thereafter collects any of such amounts from others, the recipient
shall promptly repay such amounts to the Servicer and/or the Company, without
interest. The indemnities under this Section 8.02 shall survive the resignation
or removal of the Trustees, or the termination of this Agreement.
Section 8.03 Merger or Consolidation of Servicer.
Any person into which the Servicer may be merged or consolidated, or any
corporation resulting from any merger or consolidation to which the Servicer
shall be a party, or any Person succeeding to the business of the Servicer,
shall be the successor of the Servicer hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person to the Servicer shall satisfy the criteria set
forth in the definition of an Eligible Servicer. The Servicer shall promptly
notify each Rating Agency of any such merger to which it is a party.
Section 8.04 Limitation on Liability of Servicer and Others.
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(a) Neither the Servicer nor any of the directors, officers, employees or
agents of the Servicer shall be under any liability to the Trustees or the
Securityholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Servicer or any
such Person against any breach of warranties or representations made herein, or
failure to perform its or his obligations in compliance with any standard of
care set forth in this Agreement, or any liability which otherwise would be
imposed by reason of any breach of the terms and conditions of this Agreement.
(b) The Servicer and any director, officer, employee or agent of the
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
(c) Except as arises from its duties as Servicer hereunder, the Servicer
shall not be under any obligation to appear in, prosecute or defend any legal
action which arises under this Agreement and which in its opinion may involve it
in any expenses or liability; provided, however, that the Servicer may in its
discretion undertake any such action which it may deem necessary or desirable in
respect of this Agreement and the rights and duties of the parties hereto. In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities payable from the
Collection Account and the Servicer shall be entitled to be reimbursed therefor
out of the Collection Account.
Section 8.05 Servicer Not To Resign. The Servicer shall not resign from
its obligations and duties under this Agreement except upon determination that
the performance of its duties shall no longer be permissible under applicable
law, compliance with which could not be realized without material adverse impact
on the Servicer's financial condition. Notice of any such determination
permitting the resignation of the Servicer shall be communicated to the Trustees
and the Rating Agencies at the earliest practicable time (and, if such
communication is not in writing, shall be confirmed in writing at the earliest
practicable time) and any such determination permitting the resignation of the
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered to
the Trustee. No such resignation shall become effective until the Trustee or a
successor Servicer shall have assumed the responsibilities and obligations of
the Servicer in accordance with Section 9.02.
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ARTICLE IX
Default
Section 9.01 Events of Termination.
"Event of Termination" means the occurrence of any of the following:
(a) Any failure by the Servicer to make any deposit into an account
required to be made hereunder and the continuance of such failure for a period
of five Business Days after the Servicer has become aware that such deposit was
required;
(b) Failure on the Servicer's part to observe or perform in any material
respect any covenant or agreement in this Agreement (other than pursuant to
Section 9.01(a)), which failure continues unremedied for 30 days after the date
on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Indenture Trustee, the Owner
Trustee or the Company or to the Servicer and the Trustees by Holders of Notes
or Certificates evidencing, not less than 25% of the aggregate outstanding
principal balance of the Notes, or the outstanding Certificate Balance,
respectively;
(c) Any assignment or delegation by the Servicer of its duties or rights
hereunder except as specifically permitted hereunder, or any attempt to make
such an assignment or delegation;
(d) A court or other governmental authority having jurisdiction in the
premises shall have entered a decree or order for relief in respect of the
Servicer in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
the Servicer, as the case may be, or for any substantial liquidation of its
affairs, and such order remains undischarged and unstayed for at least 60 days;
(e) The Servicer shall have commenced a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or shall
have consented to the entry of an order for relief in an involuntary case under
any such law, or shall have consented to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian or sequestrator (or
other similar official) of the Servicer or for any substantial part of its
property, or shall have made any general assignment for the benefit of its
creditors, or shall have failed to, or admitted in writing its inability to, pay
its debts as they become due, or shall have taken any corporate action in
furtherance of the foregoing; or
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(f) The failure of the Servicer to be an Eligible Servicer.
If an Event of Termination has occurred and is continuing, the Indenture
Trustee may or at the written direction of Holders of Notes evidencing 25% or
more of the aggregate outstanding principal balance of the Notes (or, if the
Notes have been paid in full and the Indenture has been discharged in accordance
with its terms, by the Owner Trustee or Holders of Certificates evidencing 25%
or more of the Certificate Balance) shall, unless prohibited by applicable law,
terminate all (but not less than all) of the Servicer's management,
administrative, servicing and collection functions (such termination being
herein called a "Service Transfer"). On receipt of such notice (or, if later, on
a date designated therein), all authority and power of the Servicer under this
Agreement, whether with respect to the Contracts, the Contract Files or
otherwise (except with respect to the Collection Account, the transfer of which
shall be governed by Section 9.06), shall pass to and be vested in the Indenture
Trustee pursuant to and under this Section 9.01 (however, if all of the Notes
have been paid in full and the Indenture has been discharged in accordance with
its terms, such authority shall pass to and be vested in the Owner Trustee
pursuant to and under this Section 9.01); and, without limitation, such Trustee
is authorized and empowered to execute and deliver on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments
(including, without limitation, documents required to make such Trustee or a
successor servicer the sole lienholder or legal title holder of record of each
Financed Vehicle), and to do any and all acts or things necessary or appropriate
to effect the purposes of such notice of termination. Each of CITSF and the
Servicer agrees to cooperate with such Trustee in effecting the termination of
the responsibilities and rights of the Servicer hereunder, including, without
limitation, the transfer to such Trustee for administration by it of all cash
amounts which shall at the time be held by the Servicer for deposit, or have
been deposited by the Servicer, in the Collection Account, or for its own
account in connection with its services hereafter or thereafter received with
respect to the Contracts and the execution of any documents required to make
such Trustee or a successor Servicer the sole lienholder or legal title holder
of record in respect of each Financed Vehicle. The Servicer shall be entitled to
receive any other amounts which are payable to the Servicer under this
Agreement, at the time of the termination of its activities as Servicer, to the
extent that funds in the Collection Account are available for the payment
thereof without reducing the amount of distributions that would be made to
Holders of the Notes and Certificates. The Servicer shall transfer to the new
Servicer (i) the Servicer's records relating to the Contracts in such electronic
form as the new Servicer may reasonably request and (ii) the Contracts and any
the Contract Files in the Servicer's possession.
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Section 9.02 Indenture Trustee to Act; Appointment of Successor.
On and after the time the Servicer receives a notice of termination
pursuant to Section 9.01 or a notice of determination pursuant to Section 8.05,
the Indenture Trustee shall be the successor in all respects to the Servicer in
its capacity as Servicer under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof, and the Servicer shall be relieved of such responsibilities, duties and
liabilities arising after such Service Transfer; provided, however, that (i) the
Indenture Trustee will not assume any obligations of CITSF pursuant to Section
3.02 or be obligated to deposit any net loss on an investment directed by a
predecessor Servicer pursuant to Section 5.01(b), and (ii) the Indenture Trustee
shall not be liable for any acts or omissions of the Servicer occurring prior to
such Service Transfer or for any breach by CITSF of any of its representations
and warranties contained herein or in any related document or agreement. The
Indenture Trustee and any successor Servicer shall have no responsibility for
failure of CITSF and any predecessor Servicer to deliver to the Indenture
Trustee or such successor Servicer any property or funds belonging to the Trust,
including but not limited to the funds, records, Contracts and Contract Files.
As compensation therefor, the Indenture Trustee shall, except as provided in
this Section 9.02, be entitled to such compensation as the Servicer would have
been entitled to hereunder if no such notice of termination had been given.
Notwithstanding the above, the Indenture Trustee may, if it shall be unwilling
so to act, or shall, if it is legally unable so to act, appoint, or petition a
court of competent jurisdiction to appoint, an Eligible Servicer as the
successor to the Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer hereunder. Pending
appointment of a successor to the Servicer hereunder, unless the Indenture
Trustee is prohibited by law from so acting, the Indenture Trustee shall act in
such capacity as hereinabove provided. In connection with such appointment and
assumption, the Indenture Trustee may make such arrangements for the
compensation of such successor out of payments on Contracts as it and such
successor shall agree; provided, however, that no such compensation shall,
without the written consent of 100% of the Securityholders, be in excess of the
Servicing Fee. The Indenture Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession.
Section 9.03 Notification to Securityholders.
(a) Promptly following the occurrence of any Event of Termination, the
Servicer shall give written notice thereof to the Trustees and the
Securityholders at their respective addresses appearing on the Certificate
Register and the Note Register and to each Rating Agency.
(b) Within 10 days following any termination or appointment of a successor
to the Servicer pursuant to this Article IX, the Trustees shall give written
notice
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thereof to Certificateholders and Noteholders at their respective addresses
appearing on the Certificate Register and the Note Register.
(c) The Indenture Trustee shall give written notice to each Rating Agency
at least 30 days prior to the date upon which any Eligible Servicer (other than
the Indenture Trustee) is to assume the responsibilities of Servicer pursuant to
Section 9.02, naming such successor Servicer.
Section 9.04 Rights to Direct Trustees and Waiver of Events of
Termination.
Holders of Notes or Certificates evidencing not less than 25% of the
aggregate outstanding principal amount of the Notes or 25% of the Certificate
Balance, respectively, shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Indenture
Trustee or the Owner Trustee, respectively, or exercising any trust or power
conferred on the Trustees; provided, however, that, subject to Section 10.01,
the Trustees shall have the right to decline to follow any such direction which
such Trustee (being advised by counsel) determines that the action so directed
may not lawfully be taken, or if such Trustee in good faith shall, by a
Responsible Officer or Officers of such Trustee, determine that the proceedings
so directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Noteholders or Certificateholders not parties to
such direction; provided further that nothing in this Agreement shall impair the
right of the Trustees to take any action deemed proper by such Trustee and which
is not inconsistent with such direction by the Noteholders or
Certificateholders.
Holders of Notes evidencing not less than a majority of the aggregate
outstanding principal balance of the Notes (or, if all of the Notes have been
paid in full and the Indenture has been discharged in accordance with its terms,
Certificates evidencing not less than a majority of the Certificate Balance)
may, on behalf of the Noteholders and Certificateholders, waive any past Event
of Termination hereunder and its consequences (except a continuing failure to
make any required deposits to the Collection Account in accordance with this
Agreement, which default cannot be waived without the consent of all
Securityholders) and, upon any such waiver, such Event of Termination shall
cease to exist and shall be deemed to have been cured for every purpose of this
Agreement; but no such waiver shall extend to any subsequent or other Event of
Termination or impair any right consequent thereon.
Section 9.05. Effect of Transfer.
(a) After the Service Transfer, the Indenture Trustee or new Servicer may
notify the Obligors to make payments directly to the new Servicer that are due
under the Contracts after the effective date of the Service Transfer.
(b) After the Service Transfer, the replaced Servicer shall have no further
obligations with respect to the management, administration, servicing or
collection of the
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Contracts and the new Servicer shall have all of such obligations, except
that the replaced Servicer shall remain liable for any liability of the replaced
Servicer hereunder that was already accrued at the time of the Service Transfer
and except that the replaced Servicer will transmit or cause to be transmitted
directly to the new Servicer for its own account, promptly on receipt and in the
same form in which received, any amounts (properly endorsed where required for
the new Servicer to collect them) received as payments upon or otherwise in
connection with the Contracts.
(c) A Service Transfer shall not affect the rights and duties of the
parties hereunder (including but not limited to the indemnities and other
agreements of the Servicer and CITSF) other than those relating to the
management, administration, servicing or collection of the Contracts.
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ARTICLE XI
Optional Purchase and Auction Sale
Section 11.01 Optional Purchase of All Contracts.
On any Distribution Date, following any Record Date as of which the Pool
Balance is 10% or less of the Initial Pool Balance, CITSF shall have the option
to purchase the Contracts, any Financed Vehicles in the Trust relating to
Defaulted Contracts and all rights relating to the Contracts under all Insurance
Policies. To exercise such option, CITSF shall notify the Trustees and the
Depository, if any, in writing, no later than the 20th day of the month
preceding the month as of which such purchase is to be effected occurs;
provided, however, that CITSF shall not effect any such purchase if the
long-term unsecured obligations of its parent are rated less than [Baa3] by
Moody's Investors Service, Inc. or less than [ ] by [Standard & Poor's
Corporation], unless the Trustee shall have received an Opinion of Counsel
acceptable to it that payment of the purchase price to the Securityholders will
not constitute a voidable preference or a fraudulent transfer under the United
States Bankruptcy Code. CITSF shall effect such purchase by depositing, in
accordance with Section 5.04, the aggregate Purchase Price of the Contracts
(less any Net Liquidation Proceeds deposited, or to be deposited, by the
Servicer in the Collection Account with respect to the Contract pursuant to
Section 5.02) in the Collection Account on the Deposit Date immediately
following the month in such purchase is to be effected. The effective date of
such purchase shall be the last day of the Due Period which ends in the month
referred to in the preceding sentence.
Section 11.02 Mandatory Sale of all Contracts. In accordance with the
procedures and schedule set forth in Exhibit [ ] to the Agreement (the "Auction
Procedures"), the Indenture Trustee (or, if the Notes have been paid in full and
the Indenture shall have been discharged in accordance with its terms, the Owner
Trustee) shall conduct an auction (the "Auction") of the Contracts remaining in
the Trust (such Contracts hereinafter referred to as the "Auction Property") in
order to effect a termination of the Trust pursuant to Section 7.1 of the Trust
Agreement on the second Distribution Date succeeding the Record Date on which
the Pool Balance is 5% or less of the Initial Pool Balance. CITSF and the
Company may, but shall not be required to, bid at the Auction. Such Trustee
shall sell and transfer the Auction Property to the highest bidder therefor at
the Auction provided that:
(i) the Auction has been conducted in accordance with the Auction
Procedures;
(ii) such Trustee has received good faith bids for the Auction
Property from two prospective purchasers that are considered by such
Trustee, in its sole discretion, to be competitive participants in the
market for recreational vehicle retail installment sale contracts;
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(iii) a financial advisor, as advisor to such Trustee (in such
capacity, the "Advisor"), shall have advised such Trustee in writing that
at least two of such bidders (including the winning bidder) are
participants in the market for recreational vehicle retail installment sale
contracts willing and able to purchase the Auction Property;
(iv) the highest bid in respect of the Auction Property is not less
than the aggregate fair market value of the Auction Property (as determined
by such Trustee in its sole discretion;
(v) any bid submitted by CITSF, the Company or any affiliate of either
of them shall reasonably represent the fair market value of the Auction
Property, as independently verified and represented in writing by a
qualified independent third party evaluator (which may include the Advisor
or an investment banking firm) selected by such Trustee; and
(vi) the highest bid would result in proceeds from the sale of the
Auction Property which will be at least equal to the sum of (A) the greater
of (1) the aggregate Purchase Price for the Contracts (including Defaulted
Contracts), plus the appraised value of any other property held by the
Trust (less liquidation expenses) or (2) an amount that, when added to
amounts on deposit in the Collection Account and available for distribution
to Securityholders on the second Distribution Date following the
consummation of such sale (the "Liquidation Distribution Date"), would
result in proceeds sufficient to distribute to Securityholders the amounts
of principal and interest due to the Securityholders for such Distribution
Date and any unpaid interest or principal payable to the Securityholders
with respect to one or more prior Distribution Dates and interest thereon
at the Pass-Through Rate or the Class A Rate, as applicable, and (B) the
sum of (1) an amount sufficient to reimburse the Servicer for any
unreimbursed Monthly Advances for which it is entitled to reimbursement and
(2) the Servicing Fee payable on such second Distribution Date, including
any unpaid Servicing Fees with respect to one or more prior Due Periods.
Provided that all of the conditions set forth in clauses (i) through (vi)
have been met, such Trustee shall sell and transfer the Auction Property,
without recourse, to such highest bidder in accordance with and upon completion
of the Auction Procedures. Such Trustee shall deposit the purchase price for the
Auction Property in the Collection Account at least one Business Day prior to
such second succeeding Distribution Date. In addition, the Auction must
stipulate that the Servicer be retained to service the Contracts on terms
substantially similar to those in the Agreement. In the event that any of such
conditions are not met or such highest bidder fails or refuses to comply with
any of the Auction Procedures, such Trustee shall decline to consummate such
sale and transfer. In the event such sale and transfer is not consummated in
accordance with the foregoing, however, such Trustee may
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from time to time in the future, but shall not under any further obligation
to, solicit bids for sale of the assets of the Trust Fund upon the same terms
and conditions as set forth above.
If any of the foregoing conditions are not met, such Trustee shall decline
to consummate such sale and shall not be under any obligation to solicit any
further bids or otherwise negotiate any further sale of Contracts remaining in
the Trust. In such event, however, such Trustee may from time to time solicit
bids in the future for the purchase of such Contracts pursuant to this Section
11.02.
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ARTICLE XII
Miscellaneous Provisions
Section 12.01 Amendment. This Agreement may be amended in writing by the
Company, the Servicer and the Owner Trustee, without prior notice to or the
consent of any of the Securityholders, (i) to correct manifest error, to cure
any ambiguity, to correct or supplement any provisions herein or therein which
may be inconsistent with any other provisions herein or therein, as the case
may be, (ii) to add any other provisions with respect to matters or questions
arising under this Agreement which shall not be inconsistent with the provisions
of this Agreement, (iii) to add or amend any provisions as required by either
Rating Agency in order to maintain any rating of the Notes or Certificates (it
being understood that, after the Closing Date, neither the Owner Trustee, the
Indenture Trustee, the Company nor CITSF is obligated to maintain or improve
such rating); provided, however, that such action shall not, as evidenced by an
Opinion of Counsel for the Servicer or the Company, adversely affect in any
material respect the interests of the Trust, any Noteholder or any
Certificateholder.
This Agreement may also be amended in writing from time to time by the
Company, the Servicer and the Owner Trustee, with the consent of Holders of
Certificates evidencing not less than a majority of the Certificate Balance and
the consent of Holders of Notes evidencing not less than a majority of the
aggregate outstanding principal balance of the Notes, 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
Certificateholders or Noteholders, respectively; provided, however, that no such
amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments of Contracts, or
distributions that shall be required to be made on any Certificate or Note,
respectively, or (ii) reduce the aforesaid percentage required to consent to any
such amendment, without the consent of the Holders of all Certificates and Notes
then outstanding.
Promptly after the execution of any amendment or consent pursuant to this
Section, such Trustee shall furnish written notification of the substance of
such amendment to each Certificateholder and each Noteholder (but only if such
amendment is pursuant to the second paragraph of this Section 12.01) and, in all
cases, to each Rating Agency, which notification will be prepared by the
Servicer and delivered to such Trustee.
It shall not be necessary for the consent of the Certificateholders or the
Noteholders pursuant to this Section 12.01 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 of
evidencing the authorization of the execution thereof by Certificateholders and
the Noteholders shall be subject to such reasonable requirements as such Trustee
may prescribe.
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Such Trustee may, but shall not be obligated to, enter into any such
amendment which affects such Trustee's own rights, duties or immunities under
this Agreement or otherwise. However, no such amendment shall be permitted
without the consent of the Trustee whose rights, duties or immunities are being
modified.
In connection with any amendment pursuant to this Section 12.01, such
Trustee shall be entitled to receive an Opinion of Counsel to the Servicer to
the effect that such amendment is authorized or permitted by the Agreement.
Upon the execution of any amendment or consent pursuant to this Section
12.01, this Agreement shall be modified in accordance therewith, and such
amendment or consent shall form a part of this Agreement for all purposes, and
every Holder of Securities theretofore or thereafter issued hereunder shall be
bound thereby.
Section 12.02 Protection of Title to Trust. (a) On or prior to the Closing
Date, the Servicer shall cause the following UCC-1 financing statements to be
filed:
(i) UCC-1 financing statement executed by CITSF as debtor, naming the
Company as secured party and filed in New Jersey to perfect the sale from
CITSF to the Company;
(ii) UCC-1 financing statement executed by the Company as debtor,
naming the Trust as secured party and filed in New Jersey to perfect the
sale from the Company to the Trustee.
The Servicer shall cause to be filed all necessary continuation statements of
the UCC-1 financing statement referred to in the previous sentence on which it
is the debtor, and the Servicer shall cause to be filed all necessary
continuation statements of the UCC-1 financing statement referred to in the
previous sentence on which it is the debtor.
From time to time the Servicer shall, subject to the following sentence,
take and cause to be taken such actions and execute such documents as are
necessary to perfect and protect the Noteholders' and Certificateholders'
interests in the Contracts and their proceeds against all other persons,
including, without limitation, the filing of financing statements, amendments
thereto and continuation statements, the execution of transfer instruments and
the making of notations on or taking possession of all records or documents of
title.
The Servicer will maintain the Trust's perfected first priority security
interest in each Financed Vehicle so long as the related Contract is the
property of the Trust; provided, however, that because of the expense and
administrative inconvenience involved, the Servicer will not amend any
certificate of title to name the Company or the Trust as the lienholder, and
neither the Servicer nor the Company will deliver any certificate of title to
the Trust or note thereon the Trust's interest.
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The Servicer agrees to pay all reasonable costs and disbursements in
connection with the perfection and the maintenance of perfection, as against all
third parties, of the Noteholders' and Certificateholders' right, title and
interest in and to the Contracts (including, without limitation, the security
interest in the Financed Vehicles granted thereby).
(b) During the term of this Agreement, neither the Company nor CITSF shall
change its name, identity or structure or relocate its chief executive office
without first giving notice thereof to the Trustees and the Servicer. In
addition, following any such change in the name, identity, structure or location
of the chief executive office of the Company or CITSF, the Company or CITSF, as
appropriate, shall give prior written notice thereof to each Rating Agency.
If any change in the Company's, the Servicer's or CITSF's name, identity or
structure or the relocation of its chief executive office would make any
financing or continuation statement or notice of lien filed under this Agreement
seriously misleading within the meaning of applicable provisions of the UCC or
any title statute or would cause any such financing or continuation statement or
notice of lien to become unperfected (whether immediately or with lapse of
time), the Servicer no later than five days after the effective date of such
change, shall (subject to the proviso in the final sentence of the last
paragraph of Section 12.01(a)) file, or cause to be filed, such amendments or
financing statements as may be required to preserve, perfect and protect the
Noteholders' and Certificateholders' interests in the Contracts and proceeds
thereof and in the Financed Vehicles.
(c) During the term of this Agreement, the Company and CITSF will maintain
their respective chief executive offices in one of the States of the United
States.
(d) The Servicer shall maintain accounts and records as to each Contract
accurately and in sufficient detail to permit (i) the reader thereof to know at
any time the status of such Contract, including payments and recoveries made and
payments owing (and the nature of each) and (ii) reconciliation between payments
or recoveries on (or with respect to) each Contract and the amounts from time to
time deposited in the Collection Account in respect of such Contract.
(e) Each of the Company and the Servicer shall maintain its computer
systems so that, from and after the time of sale under this Agreement of the
Contracts to the Trust, the master computer records of the Company and the
Servicer (including archives) that shall refer to a Contract indicate clearly
that such Contract is owned by the Trust. Indication of the Trust's ownership of
a Contract shall be deleted from or modified on the Company's and the Servicer's
computer systems when, and only when, the Contract shall have been paid in full,
purchased or assigned pursuant hereto.
(f) At all times during the term hereof, the Servicer shall afford the
Trust and its authorized agents reasonable access during normal business hours
to the
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Servicer's records relating to the Contracts and will cause its personnel
to assist in any examination of such records by the Trust or its authorized
agents. The examination referred to in this Section 12.01(f) will be conducted
in a manner which does not unreasonably interfere with the Servicer's normal
operations or customer or employee relations. Without otherwise limiting the
scope of the examination the Trust may make, the Trust or its authorized agents
may, using generally accepted audit procedures, verify the status of each
Contract and review the Electronic Ledger and records relating thereto for
conformity to Monthly Reports prepared pursuant to Article V and compliance with
the standards represented to exist as to each Contract in this Agreement.
Nothing in this Section 12.01(f) shall affect the obligation of the Servicer to
observe any applicable law prohibiting disclosure of information regarding the
Obligors, and the failure of the Servicer to provide access to information as a
result of such obligation shall not constitute a breach of this Section
12.01(f).
(g) Upon request, the Servicer shall furnish to the Trust, within five
Business Days, a list of all Contracts by contract number and name of Obligor as
of the end of the most recent Due Period held as part of the Trust, together
with a reconciliation of such list to the List of Contracts and to each of the
Servicer Certificates indicating removal of Contracts from the Trust.
At all times during the term hereof, the Servicer shall keep available a
copy of the List of Contracts at its principal executive office for inspection
by Securityholders.
(h) The Servicer shall, to the extent required by applicable law, cause the
Notes and Certificates to be registered with the Securities and Exchange
Commission pursuant to Section 12(b) or Section 12(g) of the Securities Exchange
Act of 1934 within the time periods specified in such sections.
Section 12.03 Limitation on Rights of Securityholders.
The death or incapacity of any Securityholder shall not operate to
terminate this Agreement or the Trust, nor entitle the Securityholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations, and liabilities of the parties to
this Agreement or any of them.
No Securityholder shall have any right to vote (except as provided in
Sections 9.04 and this Section 12.02) or in any manner otherwise control the
operation and management of the Trust, or the obligations of the parties to this
Agreement, nor shall anything set forth in this Agreement or contained in the
terms of the Securities, be construed so as to constitute the Holders as
partners or members of an association; nor shall any Securityholder be under any
liability to any third person by reason of any action taken pursuant to any
provision of this Agreement.
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No Securityholder shall have any right by virtue or by availing itself of
any provisions of this Agreement to institute any suit, action, or proceeding in
equity or at law upon or under or with respect to this Agreement, except as
provided in Section 10.03(b); no one or more Holders of Securities shall have
any right in any manner whatever by virtue or by availing itself or themselves
of any provisions of this Agreement to affect, disturb, or prejudice the rights
of the Holders of any other of the Securities, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner provided in this Agreement and for
the equal, ratable and common benefit of all Securityholders. For the protection
and enforcement of the provisions of this Section 12.02, each Securityholder and
the Trust shall be entitled to such relief as can be given either at law or in
equity.
Section 12.04 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
without regard to its conflict-of-laws provisions.
Section 12.05 Notices. All communications and notices pursuant hereto to
the Company, the Servicer, Moody's and Standard & Poor's shall be in writing and
delivered or mailed to it at the appropriate following address:
If to the Company:
The CIT Group Securitization Corporation II
650 CIT Drive
Livingston, New Jersey 07039
Attention: President
If to the Servicer:
The CIT Group/Sales Financing, Inc.
650 CIT Drive
Livingston, New Jersey 07039
Attention: President
If to Standard & Poor's:
Standard & Poor's Corporation
25 Broadway
New York, New York 10004
Attention: ABS Group/Market Surveillance
-70-
<PAGE>
If to Moody's:
Moody's Investors Service Inc.
99 Church Street
New York, New York 10007
or at such other address as the party may designate by notice to the other
parties hereto, which notice shall be effective when received.
All communications and notices pursuant hereto to a Certificateholder or a
Noteholder shall be in writing and delivered or mailed at the address shown in
the Certificate Register or Note Register, respectively.
Section 12.06 Severability of Provisions. 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 and Notes or the rights of the Holders thereof.
Section 12.07 Submission to Jurisdiction; Venue. The parties hereto with
respect to any action or claim brought against or by the Trust submit to
jurisdiction in the state or federal courts in New York, New York, and agree to
New York, New York as the venue for any such claim or action.
Section 12.08 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Section 12.09. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
Section 12.10 Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have cause this Agreement to be
executed by their respective officers thereunto duly authorized as of [June 1,
1995].
THE CIT GROUP/SALES FINANCING, INC.
By:
------------------------------------
Name: Robin H. Gordon
Title: Vice President
THE CIT GROUP SECURITIZATION CORPORATION II
By:
------------------------------------
Name: Robin H. Gordon
Title: Vice President
CIT RV OWNER TRUST 1195-A
By: [ ]
-----------------------------------
not in its individual capacity
but solely as Owner Trustee
on behalf of the Trust
By:
------------------------------------
Name:
Title:
Acknowledged and Accepted:
[ ],
- -----------------------
not in its individual capacity
but solely as Indenture Trustee,
By:
------------------------------------
Name:
Title:
-72-
<PAGE>
EXHIBITS
<PAGE>
Exhibit A
[FORM OF ASSIGNMENT]
In accordance with the Sale and Servicing Agreement (the "Agreement") dated
as of June 1, 1995, among The CIT Group/Sales Financing Inc. ("CITSF"), The CIT
Group Securitization Corporation II (the "Company"), and ______________________,
as Trustee, the Company does hereby sell, transfer, assign, set over and
otherwise convey to the Trustee on behalf of the Trust created by the Agreement,
(i) all right, title and interest of the Company in the manufactured housing
installment sales contracts and installment loan agreements described in the
List of Initial Contracts (collectively, the "Initial Contracts") and the
proceeds thereof (including, without limitation, all security interests in the
recreational vehicles securing such Initial Contracts and any related Mortgages
and any payments of principal and interest which are received pursuant thereto
after June 1, 1995 identified in the List of Initial Contracts delivered
pursuant to Section _______ of the Agreement, which List of Initial Contracts is
also attached hereto as Exhibit A, (ii) all rights under any Hazard Insurance
Policy relating to a Recreational vehicle securing an Initial Contract for the
benefit of the creditor of such Initial Contract and all rights under any
blanket hazard insurance policy and the proceeds from any Initial Contract
Holders' Errors and Omissions Protection Policy, to the extent they relate to
the Recreational vehicles related thereto, (iii) all documents contained in the
Contract Files with respect to the Initial Contracts, (iv) all rights to any
rebated portions of Force-Placed Insurance Premiums, and (v) all proceeds in any
way derived from any of the foregoing. All capitalized terms used herein without
definition have the meanings ascribed to such terms in the Agreement.
This Assignment is made pursuant to Section _______ of the Agreement.
This Assignment is made pursuant to and upon the representation and
warranties on the part of the undersigned contained in Article III of the
Agreement and no others.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed this ___ day of June, 1995.
THE CIT GROUP SECURITIZATION
CORPORATION II
By: _______________________
Name:
Title:
D-1-1
<PAGE>
Exhibit B
SUBSEQUENT TRANSFER AGREEMENT
The CIT Group Securitization Corporation II, as Seller, and
_________________________________, as trustee (the "Trustee"), on behalf of the
Trust created by the Sale and Servicing Agreement dated June 1, 1995 among the
Seller, The CIT Group/Sales Financing, Inc. as Servicer, and the Trustee (the
"Sale and Servicing Agreement"), as Purchaser, pursuant to the Sale and
Servicing Agreement hereby confirm there understanding with respect to the sale
by the Seller and the purchase by the Purchaser of those recreation vehicle
Contracts listed on the attached Schedule of Subsequent Contracts (the
"Subsequent Contracts").
Conveyance of Subsequent Contracts. The Seller does hereby sell, transfer,
assign, set over and otherwise convey to the Purchaser (i) all right, title and
interest of the Seller in the Subsequent Contracts and the proceeds thereof
(including, without limitation, all security interests in the recreational
vehicles securing such Subsequent Contracts and any payments of principal and
interest which are received pursuant thereto after the Subsequent Cut-off Date
as defined in the Sale and Servicing Ageement and indicated herein, (ii) all
rights under any Hazard Insurance Policy relating to a Recreational vehicle
securing a Subsequent Contract for the benefit of the creditor of such
Subsequent Contract and all rights under any blanket hazard insurance policy and
the proceeds from any Subsequent Contract Holders' Errors and Omissions
Protection Policy, to the extent they relate to the Recreational vehicles
related thereto, (iii) all documents contained in the Contract Files with
respect to the Subsequent Contracts, (iv) all rights to any rebated portions of
Force-Placed Insurance Premiums, and (v) all proceeds in any way derived from
any of the foregoing.
The costs relating to the delivery of the documents specified in this
Subsequent Transfer Agreement and the Sale and Servicing Agreement shall be
borne by the Seller.
The Seller hereby affirms the representations and warranties set forth in
the Sale and Servicing Agreement that relate to the Subsequent Contracts as of
the date hereof. The Seller hereby delives notice and confirms that each of the
conditions set forth in Section ____ of the Sale and Servicing Agreement are
satisfied as of the date hereof.
All terms and conditions of the Sale and Servicing Agreement are hereby
ratified, confirmed and incorporated herein, provided that in the event of any
conflict the provisions of this
D-2-1
<PAGE>
Subsequent Transfer Agreement shall control over the conflicting provisions of
the Sale and Servicing Agreement.
Terms capitalized herein and not defined herein shall have their respective
meanings as set forth in the Sale and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed this ___ day of June, 1995.
THE CIT GROUP SECURITIZATION
CORPORATION II, as Seller
By: ________________________
Name:
Title:
_______________________,
as Trustee
By: ________________________
Name:
Title:
D-2-2
<PAGE>
Exhibit C
[FORM OF CERTIFICATE OF OFFICERS FOR THE CIT
GROUP/SALES FINANCING, INC.]
THE CIT GROUP/SALES FINANCING, INC.
CERTIFICATE OF OFFICERS
The undersigned certifies that [he/she] is the [title], of The CIT
Group/Sales Financing, Inc., a corporation organized under the laws of Delaware
("CITSF"), and that as such is duly authorized to execute and deliver this
certificate on behalf of CITSF in connection with the Sale and Servicing
Agreement, dated as of June 1, 1995 (the "Agreement"), among CITSF, The CIT
Group Securitization Corporation II and __________________________, as Trustee
(all capitalized terms used herein without definition having the respective
meanings specified in the Agreement), and further certify that:
(i) attached hereto as Exhibit I is a true and correct copy of the
Articles of Incorporation of CITSF, together with all amendments thereto as
in effect on the date hereof;
(ii) attached hereto as Exhibit II is a true and correct copy of the
By-laws of CITSF, as amended, as in effect on the date hereof;
(iii) the representations and warranties of CITSF contained in
Sections 3.01 and 3.04 of the Agreement are true and correct on and as of
the date hereof and, to the best of their knowledge, the representations
and warranties of CITSF contained in Sections 3.02 and 3.03 of the
Agreement are true and correct on and as of the date hereof;
(iv) no event with respect to CITSF has occurred and is continuing
which would constitute an Event of Termination or an event that, with
notice or lapse of time or both, would become an Event of Termination under
the Agreement; and
E-1
<PAGE>
(v) each of the agreements and conditions of CITSF to be performed on
or before the date hereof pursuant to the Agreement have been performed in
all material respects.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ______ day of
June, 1995.
-------------------------
Name:
Title:
E-2
<PAGE>
Exhibit D
[FORM OF CERTIFICATE OF OFFICERS FOR THE CIT
GROUP/SALES FINANCING, INC.]
THE CIT GROUP/SALES FINANCING, INC.
CERTIFICATE OF OFFICERS
The undersigned certifies that [he/she] is the [title], of The CIT
Group/Sales Financing, Inc., a corporation organized under the laws of Delaware
("CITSF"), and that as such is duly authorized to execute and deliver this
certificate on behalf of CITSF in connection with the Sale and Servicing
Agreement, dated as of June 1, 1995 (the "Agreement"), among CITSF, The CIT
Group Securitization Corporation II and ______________________, as Trustee (all
capitalized terms used herein without definition having the respective meanings
specified in the Agreement), and further certify that:
(i) attached hereto as Exhibit I is a true and correct copy of the
Articles of Incorporation of CITSF, together with all amendments thereto as
in effect on the date hereof;
(ii) attached hereto as Exhibit II is a true and correct copy of the
By-laws of CITSF, as amended, as in effect on the date hereof;
(iii) the representations and warranties of CITSF contained in
Sections 3.01 and 3.04 of the Agreement are true and correct on and as of
the date hereof and, to the best of their knowledge, the representations
and warranties of CITSF contained in Sections 3.02 of the Agreement are
true and correct on and as of the date hereof;
(iv) no event with respect to CITSF has occurred and is continuing
which would constitute an Event of Termination or an event that, with
notice or lapse of time or both, would become an Event of Termination under
the Agreement; and
E-1
<PAGE>
(v) each of the agreements and conditions of CITSF to be performed on
or before the date hereof pursuant to the Agreement have been performed in
all material respects.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ______ day of
June, 1995.
-------------------------
Name:
Title:
E-2
<PAGE>
EXHIBIT E
SUBSEQUENT PURCHASE AGREEMENT
This Subsequent Purchase Agreement dated as of ______, 1995 (the
"Agreement"), is between THE CIT GROUP SECURITIZATION CORPORATION II, as
purchaser (the "Purchaser"), and THE CIT GROUP/SALES FINANCING, INC., as seller
(the "Seller").
Reference is hereby made to the Purchase Agreement dated as of June 1, 1995
between the parties hereto (the "Purchase Agreement") pursuant to which the
Purchaser purchased from the Seller the recreational vehicle installment sales
contracts set forth on Exhibit A thereto (the "Initial Contracts"). The
Purchaser sold the Initial Contracts to the trust established pursuant to the
Trust Agreement dated as of June 1, 1995 between the Purchaser and [ ]
(the "Owner Trustee").
Pursuant to Section ___of the Sale and Servicing Agreement dated as of June
1, 1995 between the Owner Trustee, the Purchaser and the Seller, the Purchaser
agreed to purchase from the Seller and the Seller agreed to sell to the
Purchaser, subject to the terms and conditions set forth in Section ____ of the
Sale and Servicing Agreement, Subsequent Contracts for the fixed purchase price
specified in the Sale and Servicing Agreement for delivery on the date specified
herein. The purchase price for any Subsequent Contract will be funded from money
on deposit in the Pre-Funding Account during the Funding Period. The purchase of
any Subsequent Contract by the Purchaser must be evidenced by the execution and
delivery of a Subsequent Sale and Purchase Agreement substantially in the form
of Exhibit _ to the Sale and Servicing Agreement. Accordingly, subject to the
terms hereof and Section ____ of the Sale and Servicing Agreement, the Seller
agrees to sell, and the Purchaser agrees to purchase, the recreational vehicle
installment sales contracts set forth on Exhibit A hereto (collectively, the
"Subsequent Contracts"), having an aggregate outstanding principal balance as of
_______, 1995 (the "Subsequent Cut-Off Date") of approximately $_______________.
The Purchaser and the Seller wish to prescribe the terms and conditions of
the purchase by the Purchaser of the Subsequent Contracts and the servicing and
administration of the Subsequent Contracts.
In consideration of the premises and the mutual agreements hereinafter set
forth, the Purchaser and the Seller agree as follows:
E-1
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Certain capitalized terms used in this
Agreement shall have the respective meanings assigned to them in the Sale and
Servicing Agreement. All references in this Agreement to Articles, Sections,
subsections and exhibits are to the same contained in or attached to this
Agreement unless otherwise specified.
ARTICLE II
SALE AND CONVEYANCE OF SUBSEQUENT CONTRACTS;
CONTRACT FILES
SECTION 2.01. Sale and Conveyance of Contracts. On __________, 1995 (the
"Subsequent Transfer Date"), subject to the terms and conditions hereof, the
Seller shall sell, transfer, assign absolutely, set over and otherwise convey to
the Purchaser as of the Subsequent Transfer Date (i) all the right, title and
interest of the Company in and to the Subsequent Contracts and all the rights,
benefits, and obligations arising from and in connection with each Subsequent
Contract, (ii) the interest of the Company in the security interests in the
Subsequent Financed Vehicles granted by the Obligors pursuant to the Subsequent
Contracts, (iii) all payments received by the Company on or with respect to the
Subsequent Contracts on or after the Subsequent Cut-off Date (exclusive of
payments with respect to Post Cut-off Date Insurance Add-Ons), (iv) the interest
of the Company in any Subsequent Financed Vehicle (including any right to
receive future Net Liquidation Proceeds) that secures the Subsequent Contracts
and that shall have been repossessed by the Servicer by or on behalf of the
Trust; (v) all rights of the Company to proceeds of Insurance Policies covering
the Obligors and the Subsequent Contracts, (vi) the proceeds from any Servicer's
Errors and Omissions Protection Policy, any fidelity bond and any blanket hazard
policy, to the extent such proceeds relate to any Subsequent Financed Vehicle,
(vii) all rights of recourse against any cosigner or under any personal
guarantee with respect to the Subsequent Contracts (other than any right as
against a Dealer under a Dealer Agreement), (viii) all proceeds in any way
derived from any of the foregoing items, and (ix) all documents contained or
required to be contained in the Contract Files relating to the Subsequent
Contracts. The parties intend and agree that the conveyance of the Seller's
right, title and interest in and to the Subsequent Contracts pursuant to this
Agreement shall constitute an absolute sale.
E-2
<PAGE>
SECTION 2.02. Purchase Price; Payments on the Subsequent Contracts.
(a) The purchase price for the Subsequent Contracts shall be an amount
equal to $____________, which is the aggregate outstanding principal balance of
the Subsequent Contracts transferred pursuant to this Agreement as of the
Subsequent Cutoff Date, and the Seller hereby acknowledges receipt of such
amount in respect of the sale of the Subsequent Contracts hereunder. Such
purchase price shall be payable in immediately available funds on the Subsequent
Transfer Date from funds on deposit in the Pre-Funding Account.
(b) The Purchaser shall be entitled to all payments of principal and
interest received on or after the Subsequent Cutoff Date. All payments of
principal and interest received before the Subsequent Cut-off Date shall belong
to the Seller. The Seller shall hold in trust for the Purchaser and shall
promptly remit to the Purchaser, any payments on the Subsequent Contracts
received by the Seller that belong to the Purchaser under the terms of this
Agreement.
SECTION 2.03. Conditions to Sale of Subsequent Contracts. The Purchaser's
obligations hereunder are subject to the following conditions:
(a) The Purchaser shall have received (i) the Sale and Servicing Agreement
executed by all the parties thereto, (ii) the documents listed in Section
____ of the Sale and Servicing Agreement and (iii) such other opinions and
documents as the Purchaser may reasonably require in connection with the
purchase of the Subsequent Contracts hereunder or the sale of the Notes and
Certificates;
(b) The representations and warranties with respect to the Subsequent
Contracts of (i) the Seller and the Servicer made in the Sale and Servicing
Agreement and (ii) the Seller made in the Purchase Agreement and this
Agreement shall be true and correct with respect to the Subsequent
Contracts on the Subsequent Transfer Date; and
(c) The conditions for transfer of the Subsequent Contracts from the
Purchaser to the Trust set forth in Section __ of the Sale and Servicing
Agreement have been fulfilled.
SECTION 2.04. Examination of Files. The Seller will make the Contract Files
with respect to the Subsequent Contracts available to the Purchaser or its agent
for examination at the
E-3
<PAGE>
Trust's offices or such other location as otherwise shall be agreed upon by the
Purchaser and the Seller.
SECTION 2.05. Transfer of Subsequent Contracts. Pursuant to the Sale and
Servicing Agreement, the Purchaser will assign all of its right, title and
interest in and to the Subsequent Contracts to the Trust for the benefit of the
Securityholders. The Purchaser has the right to assign its interest under this
Agreement as may be required to effect the purposes of the Sale and Servicing
Agreement, by written notice to the Seller and without the consent of the
Seller, and the assignee shall succeed to the rights and obligations hereunder
of the Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER;
REPURCHASE OF CONTRACTS
SECTION 3.01. Representations and Warranties of the Seller.
(a) The representations and warranties of the Seller contained in Article
III of the Sale and Servicing Agreement with respect to the Subseuqent Conracts
are incorporated herein, and are made to the Purchaser on the Subsequent
Transfer Date, as if set forth herein and as if made to the Purchaser on the
date hereof. The Seller will make such representations and warranties in the
Sale and Servicing Agreement directly to the Trust and will become obligated in
respect of such representations and warranties pursuant to Section ____ of the
Sale and Servicing Agreement. On the Subsequent Transfer Date, the Seller shall
deliver to the Purchaser an Officers' Certificate, dated the Susbequent Transfer
Date, to the effect that the representations and warranties made in the Sale and
Servicing Agreement with respect to the Subsequent Contracts by the Seller are
true and correct as of the Subsequent Transfer Date.
(b) It is understood and agreed that the representations and warranties
incorporated by reference in this Agreement by Section 3.01(a) hereof shall
remain operative and in full force and effect, shall survive the transfer and
conveyance of the Subsequent Contracts by the Seller to the Purchaser and by the
Purchaser to the Trust, and shall inure to the benefit of the Purchaser, the
Trust and their successors and permitted assignees.
(c) The Seller shall indemnify the Purchaser and the Servicer and hold the
Purchaser and the Servicer harmless against any loss, penalties, fines,
forfeitures, legal fees and related
E-4
<PAGE>
costs, judgments and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach of
the Seller's representations and warranties contained or incorporated by
reference in this Agreement. It is understood and agreed that the obligation of
the Seller set forth in this Section 3.01 to indemnify the Purchaser and the
Servicer as provided in this Section 3.01 constitutes the sole remedy of the
Purchaser and the Servicer respecting a breach of the foregoing representations
and warranties. The Trust shall also have the remedies provided in the Sale and
Servicing Agreement.
(d) Each indemnified party shall give prompt notice to the Seller of any
action commenced against it with respect to which indemnity may be sought
hereunder but failure to so notify an indemnifying party shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement, unless the failure to notify materially prejudices the rights and
condition of the Seller. The Seller shall be entitled to participate in any such
action, and to assume the defense thereof, and after notice from the Seller to
an indemnified party of its election to assume the defense thereof, the Seller
will not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof.
(e) Any cause of action against the Seller or relating to or arising out of
the breach of any representations and warranties made or incorporated by
reference in this Section 3.01 shall accrue as to any Subsequent Contract upon
(i) discovery of such breach by the Purchaser or the Servicer or notice thereof
by the Seller to the Purchaser and the Servicer, (ii) failure by the Seller to
cure such breach and (iii) demand upon the Seller by the Purchaser for all
amounts payable in respect of such Subsequent Contract.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. Amendment. This Agreement may be amended from time to time by
the Seller and the Purchaser by written agreement signed by the Seller and the
Purchaser.
SECTION 4.02. Counterparts. For the purpose of facilitating the execution
of this Agreement as herein provided and for other purposes, this Agreement may
be executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
E-5
<PAGE>
SECTION 4.03. Termination. The Seller's obligations under this Agreement
shall survive the sale of the Subsequent Contracts to the Purchaser.
SECTION 4.04. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
SECTION 4.05. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed by
first class mail, postage prepaid, to (i) in the case of the Seller, The CIT
Group/Sales Financing, Inc., 650 CIT Drive, Livingston, New Jersey 07039,
Attention: President, or such other address as may hereafter be furnished to
Purchaser in writing by the Seller, or (ii) in the case of the Purchaser, The
CIT Group Securitization Corporation II, 650 CIT Drive, Livingston, New Jersey
07039, Attention: President, or such other address as may hereafter be furnished
to the Seller by the Purchaser.
SECTION 4.06. Severability of Provisions. 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.
SECTION 4.07. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Seller and the Purchaser and their respective
successors and assigns, as may be permitted hereunder.
E-6
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
THE CIT GROUP SECURITIZATION
CORPORATION II,
as Purchaser
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
THE CIT GROUP/SALES FINANCING, INC.,
as Seller
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
E-7
<PAGE>
EXHIBIT A
List of Subsequent Contracts
<PAGE>
EXHIBIT B
Form of Sale and Serviceing Agreement
Exhibit 4.4
Form of Limited Guarantee
<PAGE>
LIMITED GUARANTEE, dated as of June 1, 1995, made by The CIT Group
Holdings, Inc. ("Holdings") in favor of ,
not in its individual capacity but solely as Owner Trustee (the "Owner
Trustee") under the Sale and Servicing Agreement dated as of June 1, 1995
(the "Sale and Servicing Agreement"), among The CIT Group Securitization
Corporation II (the "Company"), The CIT Group/Sales Financing, Inc. ("CITSF")
and the Owner Trustee for the benefit of the Certificateholders.
WHEREAS, Section _____ of the Sale and Servicing Agreement requires the
execution and delivery of this Limited Guarantee by Holdings on or before the
Closing Date (as defined in the Sale and Servicing Agreement);
WHEREAS, Holdings will derive substantial benefit from the transactions
contemplated by the Sale and Servicing Agreement, including, without limitation,
the payment of the Guarantee Fee (as defined in the Sale and Servicing
Agreement) to Holdings and the sale of the contracts by Holdings' subsidiary,
CITSF, to the Company, the sale of the Contracts by the Company to the CIT RV
Owner Trust 1995-A, and the issuance and sale of the Notes and Certificates (as
defined in the Sale and Servicing Agreement) in the manner contemplated therein;
WHEREAS, capitalized terms used herein and not otherwise defined herein
shall have the meaning ascribed to such terms in the Sale and Servicing
Agreement; and
WHEREAS, in order to induce the parties to the Sale and Servicing Agreement
to enter into the Sale and Servicing Agreement and perform their respective
obligations thereunder, Holdings is willing to execute and deliver this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Holdings hereby unconditionally
agrees as follows:
SECTION 1. The Guarantee.
(a) Holdings hereby unconditionally and absolutely guarantees the payment
to the Owner Trustee, on behalf of the Certificateholders, of the Guarantee
Payment due to the Certificateholders on each Distribution Date. Not later than
the third Business Day prior to each Distribution Date, the Servicer shall
notify Holdings of the amount of the Guarantee Payment, if any, for such
Distribution Date and not later than the Business Day preceding each
Distribution Date, Holdings shall deposit the Guarantee Payment, if any, for
such Distribution Date into the Collection Account.
(b) Notwithstanding the obligation of Holdings in clause (a) above, in no
event will Holdings be obligated to make payments under this Agreement, if the
aggregate amounts paid under this Agreement would exceed $____________ (the
"Guarantee
<PAGE>
Payment Limit"). Upon the date on which the aggregate amounts paid
hereunder equal the Guarantee Payment Limit, Holdings shall have no further
liability under this Limited Guarantee, and Holdings shall be deemed to have
satisfied in full all of its obligations under this Limited Guarantee.
(c) The obligations of Holdings under this Limited Guarantee shall not
terminate upon or otherwise be reduced by a Service Transfer pursuant to Article
VII of the Sale and Servicing Agreement, by any amendment to the Sale and
Servicing Agreement, the Purchase Agreement, any Subsequent Purchase Agreement
or any other agreement relating to the Certificateholders or any breach by any
party to any such agreement of its obligations thereunder or the failure of
Holdings to receive all or any part of the Guarantee Fee.
(d) The obligations of Holdings under this Limited Guarantee shall
terminate on the earlier of (i) the date referred to in Section 1(b) hereof,
(ii) one year following the Distribution Date on which the Certificate Balance
has been reduced to zero and all accrued interest on the Certificates has been
paid in full, or (iii) the date on which there shall have been deposited
Eligible Investments with the Owner Trustee equal to the Defeasance Amount. The
"Defeasance Amount" is equal to such amount as shall satisfy the Rating Agency
Condition with respect to the Certificates.
(e) The obligation of Holdings to make the Guarantee Payments described in
clause (a) above shall be unconditional and irrevocable, subject to the
limitation set forth in clause (b) above.
SECTION 2. Representations and Warranties.
In making this Limited Guarantee Holdings represents and warrants to the
Owner Trustee and the Certificateholders that:
(a) Organization and Good Standing. Holdings is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the corporate power to own its assets
and to transact the business in which it is currently engaged. Holdings is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of Holdings.
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<PAGE>
(b) Authorization; Binding Obligations. Holdings has the power and
authority to make, execute, deliver and perform this Limited Guarantee and all
of the transactions contemplated under this Limited Guarantee, and has taken all
necessary corporate action to authorize the execution, delivery and performance
of this Limited Guarantee. When executed and delivered, this Limited Guarantee
will constitute the legal, valid and binding obligation of Holdings enforceable
in accordance with its terms, except as enforcement of such terms may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable remedies.
(c) No Consent Required. Holdings is not required to obtain the consent of
any other party or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or agency
in connection with the execution, delivery, performance, validity or
enforceability of this Limited Guarantee the failure of which so to obtain would
have a material adverse effect on the business, properties, assets or condition
(financial or otherwise) of Holdings.
(d) No Violations. The execution, delivery and performance of this Limited
Guarantee by Holdings will not violate any provision of any existing law or
regulation or any order or decree of any court or the Articles of Incorporation
or Bylaws of Holdings, or constitute a material breach of any mortgage,
indenture, contract or other agreement to which Holdings is a party or by which
Holdings may be bound.
(e) Litigation. No litigation or administrative proceeding of or before any
court, tribunal or governmental body is currently pending, or to the knowledge
of Holdings threatened, against Holdings or any of its properties or with
respect to this Limited Guarantee or the Certificates which, if adversely
determined, would in the opinion of Holdings have a material adverse effect on
the transactions contemplated by this Limited Guarantee.
SECTION 3. Miscellaneous.
(a) All payments by Holdings under this Limited Guarantee will be made free
and clear of and without deduction for any present or future income, stamp or
other taxes, levies, imposts, deductions, charges, fees, withholdings,
liabilities, restrictions or conditions of any nature whatsoever now or
hereafter imposed, levied, collected, assessed or withheld by any jurisdiction
or by any political subdivision or taxing authority thereof or therein, and all
interest, penalties or similar liabilities ("Taxes"); provided, however, that
Holdings shall not be obligated to pay any amount allocable to Taxes (i) which
the
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<PAGE>
Trust was required to withhold or (ii) which result or were incurred by
reason of the ownership of any interest in a Certificate by any non-U.S. Person
which is not eligible for a complete exemption from U.S. withholding tax on U.S.
source interest.
(b) Holdings will not exercise any rights which it may acquire by way of
subrogation hereunder, by any payment made by it hereunder or otherwise, until
such date when all amounts of principal and interest payable to the Holders of
the Notes and Certificates shall have been paid in full. If any amount shall be
paid to Holdings on account of such subrogation rights at any time when all of
the amounts of principal and interest payable to the Holders of the Notes and
Certificates shall not have been paid in full, such amount shall be held in
trust for the benefit of the Noteholders and the Certificateholders, shall be
segregated from the other funds of Holdings and shall forthwith be applied in
whole or in part against such amounts owed in accordance with the terms of the
Sale and Servicing Agreement.
(c) This Limited Guarantee is not secured by a security interest in, pledge
of or lien on any assets of Holdings or any of its subsidiaries. The Limited
Guarantee is a senior, unsecured general obligation of Holdings and is not
supported by any letter of credit or other credit enhancement arrangement.
(d) This Limited Guarantee may be amended from time to time by Holdings,
the Servicer and the Owner Trustee, without the consent of any of the
Certificateholders, (i) to correct manifest error, to cure any ambiguity, to
correct or supplement any provisions herein or therein which may be inconsistent
with any other provisions herein or therein, as the case may be, (ii) to add any
other provisions with respect to matters or questions arising under this Limited
Guarantee which shall not be inconsistent with the provisions of this Limited
Guarantee, and (iii) to add or amend any provisions as required by Moody's,
Standard & Poor's or another NRSRO in order to maintain or improve the rating of
the Certificates (it being understood that, after the rating required by Section
_____ of the Sale and Servicing Agreement has been obtained, neither the Owner
Trustee, the Company, CITSF or Holdings is obligated to maintain or improve such
rating); provided, however, that such action shall not, as evidenced by an
opinion of counsel for Holdings, adversely affect in any material respect the
interests of any Certificateholder.
This Limited Guarantee may also be amended from time to time by Holdings,
the Servicer and the Owner Trustee, with the consent of Holders of the
Certificates aggregating 51% or more of the Certificate Balance as of the
preceding Determination Date, for the purpose of adding any of the provisions to
or changing in any manner or eliminating any of the provisions of this Limited
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<PAGE>
Guarantee or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall (i) reduce
in any manner the amount of, or delay the timing of, any Guarantee Payment or
(ii) grant by contract or operation of law any defense to the payment of any
Guarantee Payment without the consent of the Holder of each Certificate affected
thereby.
The Guarantor shall provide Moody's and Standard & Poor's with a copy of
any amendment made to this Limited Guarantee no later than five (5) days after
the execution and delivery thereof.
(e) This Limited Guarantee shall be construed in accordance with and
governed by the internal laws of the State of New York applicable to contracts
made and to be performed thereon without regard to conflicts of law principles.
Any litigation relating to or arising out of this Limited Guarantee shall be
brought and maintained in the courts of the State of New York or in the United
States District Court for the Southern District of New York.
(f) Holdings agrees that, prior to the date which is one year and one day
after the payment in full of the Notes and Certificates it will not institute
against, or join any other person in instituting against, the Company or the
Trust any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any Federal or state bankruptcy or
similar law.
(g) Holdings hereby acknowledges that the Guarantee Fee is subordinated to
payments in respect of the Notes and Certificates and the Monthly Servicing Fee
to the extent provided in the Sale and Servicing Agreement and will be payable
only if and to the extent funds are available therefor in accordance with the
Sale and Servicing Agreement. Holdings further acknowledges that the failure of
Holdings to receive, in whole or in part, payment of the Guarantee Fee shall not
in any way diminish Holdings' obligations hereunder and Holdings hereby waives
any right of set-off or counterclaim against the Trust for the failure to
receive all or any part of such Guarantee Fee or for the failure to receive
reimbursement for Guarantee Payments.
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<PAGE>
IN WITNESS WHEREOF, The CIT Group Holdings, Inc. has duly executed this
Limited Guarantee as of the day and year first written above.
THE CIT GROUP HOLDINGS, INC.
By:
-----------------------------
- ------------------ Name:
Title:
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Exhibit 10.1
Form of Purchase Agreement
<PAGE>
PURCHASE AGREEMENT
This Purchase Agreement dated as of June 1, 1995 (the "Agreement"), is
between THE CIT GROUP SECURITIZATION CORPORATION II, as purchaser (the
"Purchaser"), and THE CIT GROUP/SALES FINANCING, INC., as seller (the "Seller").
Subject to the terms hereof, the Seller agrees to sell, and the Purchaser
agrees to purchase, the recreational vehicle installment sales contracts set
forth on Exhibit A (collectively, the "Contracts"), having an aggregate
outstanding principal balance as of June 1, 1995 (the "Initial Cut-off Date") of
approximately $_________.
It is the intention of the Seller and the Purchaser that the Purchaser
shall sell the Contracts to CIT RV Owner Trust 1995-A and shall enter into a
Sale and Servicing Agreement, dated as of the date hereof, with First Chicago
Delaware Inc., as trustee (the "Owner Trustee"), and the Seller, pursuant to
which ___% Asset Backed Certificates (the "Certificates"), evidencing ownership
interests in the Contracts and Class A __% Asset Backed Notes secured by the
Contracts, will be issued.
The Purchaser and the Seller wish to prescribe the terms and conditions of
the purchase by the Purchaser of the Contracts and the servicing and
administration of the Contracts.
In consideration of the premises and the mutual agreements hereinafter set
forth, the Purchaser and the Seller agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Certain capitalized terms used in this
Agreement shall have the respective meanings assigned to them in the Sale and
Servicing Agreement. All references in this Purchase Agreement to Articles,
Sections, subsections and exhibits are to the same contained in or attached to
this Purchase Agreement unless otherwise specified.
<PAGE>
ARTICLE II
SALE AND CONVEYANCE OF CONTRACTS;
CONTRACT FILES
SECTION 2.01. Sale and Conveyance of Contracts. On the Closing Date,
subject to the terms and conditions hereof, the Seller shall sell, transfer,
assign absolutely, set over and otherwise convey to the Purchaser (i) all the
right, title and interest of the Company in and to the Initial Contracts and all
the rights, benefits, and obligations arising from and in connection with each
Initial Contract, (ii) the interest of the Company in the security interests in
the Initial Financed Vehicles granted by the Obligors pursuant to the Initial
Contracts, (iii) all payments received by the Company on or with respect to the
Initial Contracts on or after the Initial Cut-off Date (exclusive of payments
with respect to Post Cut-off Date Insurance Add-Ons), (iv) the interest of the
Company in any Initial Financed Vehicle (including any right to receive future
Net Liquidation Proceeds) that secures the Initial Contracts and that shall have
been repossessed by the Servicer by or on behalf of the Trust; (v) all rights of
the Company to proceeds of Insurance Policies covering the Obligors and the
Initial Contracts, (vi) the proceeds from any Servicer's Errors and Omissions
Protection Policy, any fidelity bond and any blanket hazard policy, to the
extent such proceeds relate to any Initial Financed Vehicle, (vii) all rights of
recourse against any cosigner or under any personal guarantee with respect to
the Initial Contracts (other than any right as against a Dealer under a Dealer
Agreement), (viii) all amounts held for the Trust in the Collection Account,
(ix) all amounts held for the Trust in the Pre-Funding Account, (x) all amounts
held for the Trust in the Capitalized Interest Account, (xi) all proceeds in any
way derived from any of the foregoing items, and (xii) all documents contained
or required to be contained in the Contract Files relating to the Initial
Contracts. The parties intend and agree that the conveyance of the Seller's
right, title and interest in and to the Initial Contracts pursuant to this
Agreement shall constitute an absolute sale.
The Seller hereby declares and covenants that it shall at no time have any
legal, equitable or beneficial interest in, or any right, including without
limitation any reversionary or offset right, to the Collection Account, the
Pre-Funding Account and the Capitalized Interest Account and that, in the event
it receives any of the same, it shall hold same in trust for the benefit of the
Trust on behalf of the Securityholders and shall immediately endorse over to the
Trust any such amount it receives.
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<PAGE>
SECTION 2.02. Purchase Price; Payments on the
Contracts.
(a) The purchase price for the Contracts shall be an amount equal to
$____________. Such purchase price shall be payable in immediately available
funds on the Closing Date.
(b) The Purchaser shall be entitled to all payments of principal and
interest received on or after the Initial Cut-off Date. All payments of
principal and interest received before the Initial Cut-off Date shall belong to
the Seller. The Seller shall hold in trust for the Purchaser and shall promptly
remit to the Purchaser, any payments on the Contracts received by the Seller
that belong to the Purchaser under the terms of this Agreement.
SECTION 2.03. Conditions to Sale of Contracts. The Purchaser's obligations
hereunder are subject to the following conditions:
(a) The Purchaser shall have received (i) the Sale and Servicing
Agreement executed by all the parties thereto, (ii) the documents
listed in Section ____ of the Sale and Servicing Agreement and (iii)
such other opinions and documents as the Purchaser may reasonably
require in connection with the purchase of the Contracts hereunder or
the sale of the Notes and Certificates;
(b) The representations and warranties of the Seller and the Servicer
made in the Sale and Servicing Agreement shall be true and correct on
the Closing Date; and
(c) The Purchaser shall have received from counsel to the Seller a
letter stating that the Purchaser may rely on such counsel's opinion
delivered pursuant to Section ____ of the Sale and Servicing Agreement
and such counsel's opinions to Moody's Investors Service, Inc. and
Standard and Poor's Corporation in respect of the sale of the
Contracts to the Purchaser by the Seller, or such opinions may be
addressed and delivered to the Purchaser.
SECTION 2.04. Examination of Files. The Seller will make the Contract
Files with respect to the Initial Contracts available to the Purchaser or its
agent for examination at the Trust's offices or such other location as otherwise
shall be agreed upon by the Purchaser and the Seller.
SECTION 2.05. Transfer of Contracts. Pursuant to the Sale and Servicing
Agreement, the Purchaser will assign all of
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<PAGE>
its right, title and interest in and to the Contracts to the Trust for the
benefit of the Securityholders. The Purchaser has the right to assign its
interest under this Agreement as may be required to effect the purposes of the
Sale and Servicing Agreement, by written notice to the Seller and without the
consent of the Seller, and the assignee shall succeed to the rights and
obligations hereunder of the Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER;
REPURCHASE OF CONTRACTS
SECTION 3.01. Representations and Warranties of the Seller.
(a) The representations and warranties of the Seller contained in the Sale
and Servicing Agreement are incorporated herein, and are made to the Purchaser
on the date hereof, as if set forth herein and as if made to the Purchaser on
the date hereof. The Seller will make such representations and warranties in the
Sale and Servicing Agreement directly to the Trust and will become obligated in
respect of such representations and warranties pursuant to Section ____ of the
Sale and Servicing Agreement. On the Closing Date, the Seller shall deliver to
the Purchaser an Officers' Certificate, dated the Closing Date, to the effect
that the representations and warranties made in the Sale and Servicing Agreement
by the Seller are true and correct as of the Closing Date.
(b) It is understood and agreed that the representations and warranties
incorporated by reference in this Agreement by Section 3.01(a) hereof shall
remain operative and in full force and effect, shall survive the transfer and
conveyance of the Contracts by the Seller to the Purchaser and by the Purchaser
to the Trust, and shall inure to the benefit of the Purchaser, the Trust and
their successors and permitted assignees.
(c) The Seller shall indemnify the Purchaser and the Servicer and hold the
Purchaser and the Servicer harmless against any loss, penalties, fines,
forfeitures, legal fees and related costs, judgments and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Seller's representations and
warranties contained or incorporated by reference in this Agreement. It is
understood and agreed that the obligation of the Seller set forth in this
Section 3.01 to indemnify the Purchaser and the Servicer as provided in this
Section 3.01 constitutes the sole remedy of the Purchaser and the Servicer
respecting a breach of the foregoing representations and warranties. The Trust
shall
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<PAGE>
also have the remedies provided in the Sale and Servicing Agreement.
(d) Each indemnified party shall give prompt notice to the Seller of any
action commenced against it with respect to which indemnity may be sought
hereunder but failure to so notify an indemnifying party shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement, unless the failure to notify materially prejudices the rights and
condition of the Seller. The Seller shall be entitled to participate in any such
action, and to assume the defense thereof, and after notice from the Seller to
an indemnified party of its election to assume the defense thereof, the Seller
will not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof.
(e) Any cause of action against the Seller or relating to or arising out of
the breach of any representations and warranties made or incorporated by
reference in this Section 3.01 shall accrue as to any Contract upon (i)
discovery of such breach by the Purchaser or the Servicer or notice thereof by
the Seller to the Purchaser and the Servicer, (ii) failure by the Seller to cure
such breach and (iii) demand upon the Seller by the Purchaser for all amounts
payable in respect of such Contract.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. Amendment. This Agreement may be amended from time to time
by the Seller and the Purchaser by written agreement signed by the Seller and
the Purchaser.
SECTION 4.02. Counterparts. For the purpose of facilitating the execution
of this Agreement as herein provided and for other purposes, this Agreement may
be executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 4.03. Termination. The Seller's obligations under this Agreement
shall survive the sale of the Contracts to the Purchaser.
SECTION 4.04. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
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<PAGE>
SECTION 4.05. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed by
first class mail, postage prepaid, to (i) in the case of the Seller, The CIT
Group/Sales Financing, Inc., 650 CIT Drive, Livingston, New Jersey 07039,
Attention: President, or such other address as may hereafter be furnished to
Purchaser in writing by the Seller, or (ii) in the case of the Purchaser, The
CIT Group Securitization Corporation II, 650 CIT Drive, Livingston, New Jersey
07039, Attention: President, or such other address as may hereafter be furnished
to the Seller by the Purchaser.
SECTION 4.06. Severability of Provisions. 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.
SECTION 4.07. Successors and Assigns. This Agreement shall insure to the
benefit of and be binding upon the Seller and the Purchaser and their respective
successors and assigns, as may be permitted hereunder.
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<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
THE CIT GROUP SECURITIZATION
CORPORATION II,
as Purchaser
By:
------------------------------
Name:
Title:
THE CIT GROUP/SALES FINANCING, INC.,
as Seller
By:
------------------------------
Name:
Title:
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<PAGE>
EXHIBIT A
List of Contracts
<PAGE>
EXHIBIT B
Form of Sale and Servicing Agreement
Exhibit 10.2
Form of Subsequent Purchase Agreement
<PAGE>
SUBSEQUENT PURCHASE AGREEMENT
This Subsequent Purchase Agreement dated as of ______, 1995 (the
"Agreement"), is between THE CIT GROUP SECURITIZATION CORPORATION II, as
purchaser (the "Purchaser"), and THE CIT GROUP/SALES FINANCING, INC., as seller
(the "Seller").
Reference is hereby made to the Purchase Agreement dated as of June 1, 1995
between the parties hereto (the "Purchase Agreement") pursuant to which the
Purchaser purchased from the Seller the recreational vehicle installment sales
contracts set forth on Exhibit A thereto (the "Initial Contracts"). The
Purchaser sold the Initial Contracts to the trust established pursuant to the
Trust Agreement dated as of June 1, 1995 between the Purchaser and [ ] (the
"Owner Trustee").
Pursuant to Section __ of the Sale and Servicing Agreement dated as of June
1, 1995 between the Owner Trustee, the Purchaser and the Seller, the Purchaser
agreed to purchase from the Seller and the Seller agreed to sell to the
Purchaser, subject to the terms and conditions set forth in Section ____ of the
Sale and Servicing Agreement, Subsequent Contracts for the fixed purchase price
specified in the Sale and Servicing Agreement for delivery on the date specified
herein. The purchase price for any Subsequent Contract will be funded from money
on deposit in the Pre-Funding Account during the Funding Period. The purchase of
any Subsequent Contract by the Purchaser must be evidenced by the execution and
delivery of a Subsequent Sale and Purchase Agreement substantially in the form
of Exhibit _ to the Sale and Servicing Agreement. Accordingly, subject to the
terms hereof and Section ____ of the Sale and Servicing Agreement, the Seller
agrees to sell, and the Purchaser agrees to purchase, the recreational vehicle
installment sales contracts set forth on Exhibit A hereto (collectively, the
"Subsequent Contracts"), having an aggregate outstanding principal balance as of
_______, 1995 (the "Subsequent Cut-Off Date") of approximately $---------------.
The Purchaser and the Seller wish to prescribe the terms and conditions of
the purchase by the Purchaser of the Subsequent Contracts and the servicing and
administration of the Subsequent Contracts.
In consideration of the premises and the mutual agreements hereinafter set
forth, the Purchaser and the Seller agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Certain capitalized terms used in this A
greement shall have the respective meanings assigned to them in the Sale and
Servicing Agreement. All references in this Agreement to Articles, Sections,
subsections and exhibits are to the same contained in or attached to this
Agreement unless otherwise specified.
ARTICLE II
SALE AND CONVEYANCE OF SUBSEQUENT CONTRACTS;
CONTRACT FILES
SECTION 2.01. Sale and Conveyance of Contracts. On __________, 1995 (the
"Subsequent Transfer Date"), subject to the terms and conditions hereof, the
Seller shall sell, transfer, assign absolutely, set over and otherwise convey to
the Purchaser as of the Subsequent Transfer Date (i) all the right, title and
interest of the Company in and to the Subsequent Contracts and all the rights,
benefits, and obligations arising from and in connection with each Subsequent
Contract, (ii) the interest of the Company in the security interests in the
Subsequent Financed Vehicles granted by the Obligors pursuant to the Subsequent
Contracts, (iii) all payments received by the Company on or with respect to the
Subsequent Contracts on or after the Subsequent Cut-off Date (exclusive of
payments with respect to Post Cut-off Date Insurance Add-Ons), (iv) the interest
of the Company in any Subsequent Financed Vehicle (including any right to
receive future Net Liquidation Proceeds) that secures the Subsequent Contracts
and that shall have been repossessed by the Servicer by or on behalf of the
Trust; (v) all rights of the Company to proceeds of Insurance Policies covering
the Obligors and the Subsequent Contracts, (vi) the proceeds from any Servicer's
Errors and Omissions Protection Policy, any fidelity bond and any blanket hazard
policy, to the extent such proceeds relate to any Subsequent Financed Vehicle,
(vii) all rights of recourse against any cosigner or under any personal
guarantee with respect to the Subsequent Contracts (other than any right as
against a Dealer under a Dealer Agreement), (viii) all proceeds in any way
derived from any of the foregoing items, and (ix) all documents contained or
required to be contained in the Contract Files relating to the Subsequent
Contracts. The parties intend and agree that the conveyance of the Seller's
right, title and interest in and to the Subsequent Contracts pursuant to this
Agreement shall constitute an absolute sale.
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<PAGE>
SECTION 2.02. Purchase Price; Payments on the Subsequent Contracts.
(a) The purchase price for the Subsequent Contracts shall be an amount
equal to $____________, which is the aggregate outstanding principal balance of
the Subsequent Contracts transferred pursuant to this Agreement as of the
Subsequent Cutoff Date, and the Seller hereby acknowledges receipt of such
amount in respect of the sale of the Subsequent Contracts hereunder. Such
purchase price shall be payable in immediately available funds on the Subsequent
Transfer Date from funds on deposit in the Pre-Funding Account.
(b) The Purchaser shall be entitled to all payments of principal and
interest received on or after the Subsequent Cutoff Date. All payments of
principal and interest received before the Subsequent Cut-off Date shall belong
to the Seller. The Seller shall hold in trust for the Purchaser and shall
promptly remit to the Purchaser, any payments on the Subsequent Contracts
received by the Seller that belong to the Purchaser under the terms of this
Agreement.
SECTION 2.03. Conditions to Sale of Subsequent Contracts. The Purchaser's
obligations hereunder are subject to the following conditions:
(a) The Purchaser shall have received (i) the Sale and Servicing
Agreement executed by all the parties thereto, (ii) the documents
listed in Section ____ of the Sale and Servicing Agreement and (iii)
such other opinions and documents as the Purchaser may reasonably
require in connection with the purchase of the Subsequent Contracts
hereunder or the sale of the Notes and Certificates;
(b) The representations and warranties with respect to the Subsequent
Contracts of (i) the Seller and the Servicer made in the Sale and
Servicing Agreement and (ii) the Seller made in the Purchase Agreement
and this Agreement shall be true and correct with respect to the
Subsequent Contracts on the Subsequent Transfer Date; and
(c) The conditions for transfer of the Subsequent Contracts from the
Purchaser to the Trust set forth in Section __ of the Sale and
Servicing Agreement have been fulfilled.
SECTION 2.04. Examination of Files. The Seller will make the Contract
Files with respect to the Subsequent Contracts available to the Purchaser or
its agent for examination at the
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<PAGE>
Trust's offices or such other location as otherwise shall be agreed upon by the
Purchaser and the Seller.
SECTION 2.05. Transfer of Subsequent Contracts. Pursuant to the Sale and
Servicing Agreement, the Purchaser will assign all of its right, title and
interest in and to the Subsequent Contracts to the Trust for the benefit of the
Securityholders. The Purchaser has the right to assign its interest under this
Agreement as may be required to effect the purposes of the Sale and Servicing
Agreement, by written notice to the Seller and without the consent of the
Seller, and the assignee shall succeed to the rights and obligations hereunder
of the Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER;
REPURCHASE OF CONTRACTS
SECTION 3.01. Representations and Warranties of the Seller.
(a) The representations and warranties of the Seller contained in Article
III of the Sale and Servicing Agreement with respect to the Subseuqent Conracts
are incorporated herein, and are made to the Purchaser on the Subsequent
Transfer Date, as if set forth herein and as if made to the Purchaser on the
date hereof. The Seller will make such representations and warranties in the
Sale and Servicing Agreement directly to the Trust and will become obligated in
respect of such representations and warranties pursuant to Section ____ of the
Sale and Servicing Agreement. On the Subsequent Transfer Date, the Seller shall
deliver to the Purchaser an Officers' Certificate, dated the Susbequent Transfer
Date, to the effect that the representations and warranties made in the Sale and
Servicing Agreement with respect to the Subsequent Contracts by the Seller are
true and correct as of the Subsequent Transfer Date.
(b) It is understood and agreed that the representations and warranties
incorporated by reference in this Agreement by Section 3.01(a) hereof shall
remain operative and in full force and effect, shall survive the transfer and
conveyance of the Subsequent Contracts by the Seller to the Purchaser and by the
Purchaser to the Trust, and shall inure to the benefit of the Purchaser, the
Trust and their successors and permitted assignees.
(c) The Seller shall indemnify the Purchaser and the Servicer and hold the
Purchaser and the Servicer harmless against any loss, penalties, fines,
forfeitures, legal fees and related
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<PAGE>
costs, judgments and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from, a
breach of the Seller's representations and warranties contained or incorporated
by reference in this Agreement. It is understood and agreed that the obligation
of the Seller set forth in this Section 3.01 to indemnify the Purchaser and the
Servicer as provided in this Section 3.01 constitutes the sole remedy of the
Purchaser and the Servicer respecting a breach of the foregoing representations
and warranties. The Trust shall also have the remedies provided in the Sale and
Servicing Agreement.
(d) Each indemnified party shall give prompt notice to the Seller of any
action commenced against it with respect to which indemnity may be sought
hereunder but failure to so notify an indemnifying party shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement, unless the failure to notify materially prejudices the rights and
condition of the Seller. The Seller shall be entitled to participate in any such
action, and to assume the defense thereof, and after notice from the Seller to
an indemnified party of its election to assume the defense thereof, the Seller
will not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof.
(e) Any cause of action against the Seller or relating to or arising out of
the breach of any representations and warranties made or incorporated by
reference in this Section 3.01 shall accrue as to any Subsequent Contract upon
(i) discovery of such breach by the Purchaser or the Servicer or notice thereof
by the Seller to the Purchaser and the Servicer, (ii) failure by the Seller to
cure such breach and (iii) demand upon the Seller by the Purchaser for all
amounts payable in respect of such Subsequent Contract.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. Amendment.This Agreement may be amended from time to time by
the Seller and the Purchaser by written agreement signed by the Seller and the
Purchaser.
SECTION 4.02. Counterparts. For the purpose of facilitating the execution
of this Agreement as herein provided and for other purposes, this Agreement may
be executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
-5-
<PAGE>
SECTION 4.03. Termination. The Seller's obligations under this Agreement
shall survive the sale of the Subsequent Contracts to the Purchaser.
SECTION 4.04. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
SECTION 4.05. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed by
first class mail, postage prepaid, to (i) in the case of the Seller, The CIT
Group/Sales Financing, Inc., 650 CIT Drive, Livingston, New Jersey 07039,
Attention: President, or such other address as may hereafter be furnished to
Purchaser in writing by the Seller, or (ii) in the case of the Purchaser, The
CIT Group Securitization Corporation II, 650 CIT Drive, Livingston, New Jersey
07039, Attention: President, or such other address as may hereafter be furnished
to the Seller by the Purchaser.
SECTION 4.06. Severability of Provisions. 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.
SECTION 4.07. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Seller and the Purchaser and their respective
successors and assigns, as may be permitted hereunder.
-6-
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
THE CIT GROUP SECURITIZATION
CORPORATION II,
as Purchaser
By:
---------------------------------
Name:
Title:
THE CIT GROUP/SALES FINANCING, INC.,
as Seller
By:
---------------------------------
Name:
Title:
-7-
<PAGE>
EXHIBIT A
List of Subsequent Contracts
<PAGE>
EXHIBIT B
Form of Sale and Servicing Agreement
Exhibit 25.1
T-1 Statement of Eligibility
<PAGE>
Securities Act of 1933 File No. _________
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305 (b) (2))
================================================================================
---------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)_________________
------------------
THE CHASE MANHATTAN BANK
(National Association)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 Chase Manhattan Plaza, New York, New York
(Address of principal executive offices)
10081
(Zip Code)
---------------
THE CIT GROUP SECURITIZATION CORPORATION II
THE CIT GROUP HOLDINGS, INC.
(Exact name of registrant as specified in its governing instruments)
Delware Delaware
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
22-3328188 13-2994534
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
650 CIT Drive
Livingston, New Jersey 07039
(Address of principal executive office)
----------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The Trustee is not the obligor, nor is the Trustee directly or
indirectly controlling, controlled by, or under common control
with the obligor.
(See Note on Page 2.)
Item 16. List of Exhibits.
List below all exhibits filed as a part of this statement of eligibility.
*1. -- A copy of the articles of association of the trustee as now in
effect. (See Exhibit T-1 (Item 12), Registration No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan
Bank (National Association) and The Chase Bank of New York
(National Association) to commence business and a copy of approval
of merger of said corporations, all of which documents are still
in effect. (See Exhibit T-1 (Item 12), Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank (National
Association) to exercise corporate trust powers, both of which
documents are still in effect. (See Exhibit T-1 (Item 12),
Registration No. 2-67437.)
4. -- A copy of the existing by-laws of the trustee. (See Attached.)
*5. -- A copy of each indenture referred to in Item 4, if the obligor
is in default. (Not applicable.)
*6. -- The consents of United States institutional trustees required
by Section 321(b) of the Act. (See Exhibit T-1, (Item 12),
Registration No. 22-19019.)
7. -- A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising
or examining authority.
- -------------------
*The Exhibits thus designated are incorporated herein by reference.
Following the description of such Exhibits is a reference to the copy of the
Exhibit heretofore filed with the Securities and Exchange Commission, to which
there have been no amendments or changes.
-------------------
1
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base a responsive answer to Item 2 the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York, and the
State of New York, on the 31st day of May, 1995.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
/S/ Thomas J. Provenzano
-------------------------------------------
By: Thomas J. Provenzano, Second Vice President
2
<PAGE>
Exhibit 7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
The Chase Manhattan Bank, N.A.
of New York in the State of New York, at the close of business on March 31,
1995, published in response to call made by Comptroller of the Currency, under
title 12, United States Code, Section 161.
Charter Number 2370 Comptroller of the Currency Northeastern District
Statement of Resources and Liabilities
<TABLE>
<CAPTION>
ASSETS
Thousands
of Dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ....................................... $ 4,264,000
Interest-bearing balances ................................................................ 6,755,000
Held to maturity securities .................................................................. 1,571,000
Available-for-sale securities ................................................................ 4,687,000
Federal funds sold and securities purchased under agreements to resell in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBFs:
Federal funds sold ....................................................................... 2,502,000
Securities purchased under agreements to resell .......................................... 35,000
Loans and lease financing receivable:
Loans and leases, net of unearned income ................................... $ 52,831,000
LESS: Allowance for loan and lease losses .................................. 1,078,000
LESS: Allocated transfer risk reserve ..................................... 0
------------
Loans and leases, net of unearned income, allowance, and reserve ......................... 51,753,000
Assets held in trading accounts .............................................................. 17,278,000
Premises and fixed assets (including capitalized leases) ..................................... 1,785,000
Other real estate owned ...................................................................... 441,000
Investments in unconsolidated subsidiaries and associated companies .......................... 46,000
Customers' liability to this bank on acceptances outstanding ................................. 1,077,000
Intangible assets ............................................................................ 809,000
Other assets ................................................................................. 6,346,000
------------
TOTAL ASSETS ................................................................................. $99,349,000
============
LIABILITIES
Deposits:
In domestic offices ...................................................................... $ 28,080,000
Noninterest-bearing ...................................................... $ 10,224,000
Interest-bearing ......................................................... 17,856,000
------------
In foreign offices, Edge and Agreement subsidiaries, and IBFs ............................ 35,906,000
Noninterest-bearing ...................................................... $ 2,695,000
Interest-bearing ......................................................... 33,211,000
------------
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBFs:
Federal funds purchased .................................................................. 2,086,000
Securities sold under agreements to repurchase ........................................... 158,000
Demand notes issued to the U.S. Treasury ..................................................... 194,000
Trading liabilities .......................................................................... 13,545,000
Other borrowed money:
With original maturity of one year or less ............................................... 2,122,000
With original maturity of more than one year ............................................. 429,000
Mortgage indebtedness and obligations under capitalized leases ............................... 40,000
Bank's liability on acceptances executed and outstanding ..................................... 1,081,000
Subordinated notes and debentures ............................................................ 2,360,000
Other liabilities ............................................................................ 6,300,000
------------
TOTAL LIABILITIES ............................................................................ 92,301,000
------------
Limited-life preferred stock and related surplus ............................................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus ................................................ 0
Common stock ................................................................................. 917,000
Surplus ...................................................................................... 4,666,000
Undivided profits and capital reserves ....................................................... 1,552,000
Net unrealized holding gains (losses) on available-for-sale securities ....................... (98,000)
Cumulative foreign currency translation adjustments .......................................... 11,000
------------
TOTAL EQUITY CAPITAL ......................................................................... 7,048,000
------------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK,
AND EQUITY CAPITAL ..................................................................... $ 99,349,000
============
</TABLE>
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the above
named bank do hereby declare that this Report of Condition is true and correct
to the best of my knowledge and belief.
(Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
(Signed) Thomas G. Labrecque
(Signed) Arthur F. Ryan Directors
(Signed) Richard J. Boyle
<PAGE>
BY-LAWS
of
THE CHASE MANHATTAN CORPORATION
ARTICLE I
Stockholders
Section 1.1. Annual Meeting. Except as otherwise provided in the
Certificate of Incorporation and these By-Laws, and annual meeting of
stockholders of the Corporation for the election of Directors and for the
transaction of any other proper business shall be held at the principal office
to the Corporation in the City of New York, State of New York or such other
place within or without the State of Delaware as the Board may designate, on the
third Tuesday in April in each year or on such earlier or later date as the
Board may designate, at such time of the day as the Board shall appoint. If such
day shall fall on a legal holiday in the State of New York, such meeting shall
be held and the Directors elected on the next day thereafter not such a legal
holiday. If the annual meeting for the election of Directors is not held on the
date designated therefor, the Director shall cause the meeting to be held as
soon thereafter as convenient.
Section 1.2. Special Meetings. A Special meeting of stockholders of the
Corporation may be called by the board, the Chairman of the Board, or the
President.
Section 1.3. Notice of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting, and in the
case of a special meeting, the purpose or purposes for which the meeting is
called.
Unless otherwise provided by law, the written notice of any meeting shall
be given, personally or by mail, not less than ten nor more than fifty days
before the date of the meeting, to each stockholder entitled to vote at such
meeting. If mailed, notice shall be deemed given when deposited in the United
Sates mail, postage prepaid, directed to the stockholder at his address as it
appears on the records of the Corporation.
When a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. at the adjourned meeting the
Corporation may transact any business which might have been transacted at the
original meeting. If, however, the adjournment is for more than thirty days, or
if after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting. Any previously scheduled meeting of the
stockholders may be postponed, and (unless the Certificate of Incorporation
otherwise provides) any special meeting of the stockholders may be canceled, by
resolution of the Board upon public notice given prior to the date previously
scheduled for such meeting of stockholders.
<PAGE>
Section 1.4. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation in respect of the vote of holders of stock that
shall be required for a specified action (in which case the holders of the
percentage of stock required for such specified action shall constitute a
quorum), at any meeting of stockholders the holders of a majority of the
outstanding stock entitled to vote thereat, either present or represented by
proxy, shall constitute a quorum for the transaction of any business, but, in
every case, the presiding officer at the meeting, or the stockholders present,
although less than a quorum, may adjourn the meeting to another time or place
and, except as provided in the last paragraph of Section 1.3 of these By-Laws,
notice need not be given of the adjourned meeting.
Section 1.5. Presiding Officer and Secretary. At every meeting of
stockholders the Chairman of the board, or in his absence the President, or in
their absence a Vice Chairman of the Board, shall preside. In the absence of all
said officers, any other officer of the Corporation present shall call such
meeting to order and preside. The Secretary, or in his absence the appointee of
the presiding officer of th e meeting, shall act as secretary of the meeting.
Section 1.6. Vote of Stockholders. Any action required or permitted to be
taken by the holders of the Common Stock of the Corporation must be effected at
a duly called annual or special meeting of such holders and may not be effected
by any consent in writing by such holders other than a written consent at such a
meeting.
Whenever the vote of holders of shares of any class or series other than
Common Stock at a meeting thereof is required or permitted to be taken for or in
connection with any corporate action, the meeting and vote of such holders may
be dispensed with if such action is taken with the written consent of such
holders having a majority of the total number of votes which might have been
cast for or in connection with the proposed corporate action if a meeting were
held; provided that in no case shall the written consent by such holders be by
holders having less than the minimum percentage of the vote required by statute
for such action, and provided that prompt notice is given to all such holders of
the taking of corporate action without a meeting and by less than unanimous
written consent.
Except as otherwise provided by law or by Certificate of Incorporation,
each holder of record of stock of the Corporation entitled to vote on any matter
at any meeting of stockholders shall be entitled to one vote for each share of
such stock standing in the name of such holder on the stock ledger of the
Corporation on the record date for the determination of the stockholders
entitled to vote at the meeting. The vote for Directors shall be by written
ballot, but otherwise the method of voting and the manner in which votes are
counted shall be discretionary with the presiding officer at the meeting.
Whenever Directors are to be elected at a meeting, they shall be elected by
a plurality of the votes cast at the meeting by the holders of stock entitled to
vote thereat. Whenever any corporate action, other than the election of
Directors, is to be taken by vote of stockholders at a meeting, it shall, except
as otherwise required by law or by the Certificate of Incorporation or by these
By-Laws, be authorized by a majority of the votes cast at the meeting by the
holders of stock entitled to vote thereat.
2
<PAGE>
Section 1.7. Judges of Election. The Board may at any time appoint two or
more persons to serve as Judges of Election at any meeting of stockholders to
act as judges and tellers with respect to all votes by ballot at such meeting.
If any Judge appointed be absent or refuse to act, or if his office become
vacant and not be filled by the Board, if a majority of the Judges be present,
they may act, otherwise, or if there be a failure to elect or appoint Judges,
the presiding officer of the meeting may appoint one or more Judges for such
meeting. No Director or officer of the Corporation shall be eligible for
election or appointment as Judge. The Judges appointed to act at any meeting of
the stockholders, before entering upon the discharge of their duties, shall be
sworn faithfully to execute the duties of Judges at such meeting with strict
impartiality, and according to the best of their ability, and the oath so taken
shall be subscribed by them.
Section 1.8. Nature of Business. Except as otherwise provided in Article
II, Section 2.10 of these By-Laws or by applicable law, the only items of
business which shall be conducted at any meeting of stockholders shall (i) have
been specified in the written notice of the meeting (or any supplement thereto)
given in accordance with Article I, Section 1.3 of these By-Laws, (ii) be
brought before the meeting at the direction of the Board or the chairman of the
meeting, (iii) have been submitted to the Corporation in compliance with the
provisions of Rule 14a-8 under the Securities Exchange Act of 1934, as amended,
or (iv) in the case of annual meetings of stockholders, be brought by a
stockholder in accordance with the provisions of this Section 1.8. Any
stockholder who shall be a stockholder of record on the record date for an
annual meeting of stockholders and who shall continue to be entitled to vote
thereat may propose an item or items of business at the meeting only if written
notice of such stockholder's intent to propose such item or items of business
has been given, either by personal delivery or by United States mail, postage
prepaid, to the Secretary of the Corporation not less than ninety days nor more
than one hundred twenty days prior to the date one year after the date of the
immediately preceding annual meeting of stockholders; provided, however, that in
the event that the annual meeting is called for a date that is not within thirty
days before or after such anniversary date, notice by the stockholder in order
to be timely must be so received not later than the close of business on the
tenth day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the annual meeting
was made, whichever first occurs. Each such notice shall set forth: (a) the name
and address of the stockholder who intends to propose an item or items of
business at the meeting; (b) a representation that the stockholder is a holder
of record of stock of the Corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to propose the item or
items or business specified in the notice; (c) a description of all arrangements
or understandings between the stockholder and any other person or persons
(naming such person or persons) pursuant to which the item or items of business
is to be made by the stockholder; and (d) such other information regarding each
item of business proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, had the item of business been proposed, or
intended to be proposed, by the Board. The presiding officer at the meeting may
refuse to acknowledge any item of business not made in compliance with the
foregoing procedure.
3
<PAGE>
ARTICLE II
Directors
Section 2.1. Number, Election and Terms of Directors. Except as otherwise
fixed pursuant to the provisions of the Certificate of Incorporation relating to
the rights of the holders of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation to elect additional
Directors under specified circumstances, the number of Directors constituting
the Board of Directors (herein called the "Board") shall be such number as is
fixed from time to time by resolution adopted by a majority of the Directors
then in office, but in no event shall be less than three. The Directors, other
than those who may be elected by the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation,
shall be classified, with respect to the time for which they severally hold
office, into three classes, as nearly equal in number as possible, one class to
hold office initially for a term expiring at the 1987 Annual Meeting of
Stockholders, another class to hold office initially for a term expiring at the
1988 Annual Meeting of Stockholders, and another class to hold office initially
for a term expiring at the 1989 Annual Meeting of Stockholders, with the members
of each class to hold office until their successors have been duly elected and
qualified. At each annual meeting of stockholders following such initial
classification and election, the successors to the class of Directors whose term
expires at that meeting shall be elected to hold office for a term expiring at
the annual meeting of stockholders held in the third year following the year of
their election and until their successors have been duly elected and qualified.
Section 2.2. Newly Created Directorships and Vacancies.Except as otherwise
fixed pursuant to the provisions of the Certificate of Incorporation relating to
the rights of the holders of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation to elect Directors
under specified circumstances, newly created directorships resulting from any
increase in the authorized number of Directors and any vacancies on the Board
resulting from death, resignation, retirement, disqualification, removal from
office or other cause shall be filled by a majority vote of the Directors then
in office, and Directors so chosen shall hold office for a term expiring at the
next annual meeting of stockholders at which the term of the class to which they
have been elected expires. No decrease in the number of Directors constituting
the Board shall shorten the term of any incumbent Director.
Section 2.3. Place of Meetings. Meetings of the Board, regular or special,
shall be held at the principal office of the Corporation in the City of New
York, State of New York or at such other place within or without the State of
New York as may be fixed by resolution of the Board.
Section 2.4. Annual Organization Meeting.An annual organization meeting of
the Board shall be held at the time of the next regular meeting of the Board
after each annual election of Directors unless another time be fixed by
resolution of the Board. No notice of such meeting need be given. Any business
may be transacted at such annual organization meeting.
4
<PAGE>
Section 2.5. Regular Meetings.The Board may fix times for regular meetings
of the Board and no notice of such meetings need be given. Any business may be
transacted at any regular meeting.
Section 2.6. Special Meetings, Notice and Waiver of Notice.Special meeting
of the Board shall be held whenever called by the Chairman of the Board or the
President or a Vice Chairman of the Board or a Vice Chairman or any three
Directors, provided, however, that a Vice Chairman shall not call a special
meeting unless one of the purposes of the meeting is to appoint one or more
officers or Directors to fill vacancies resulting from disability, death or
other cause. Notice of each such special meeting shall be mailed postage prepaid
to each Director, addressed to him at his residence or usual place of business
or other address filled by him with the Secretary for such purpose, or shall be
sent to him by telegraph, cable or wireless, or shall be delivered or given to
him personally or by telephone, not later than the second day preceding the day
on which the meeting is to be held. Such notice need not state the purposes of
the meeting. Any business may be transacted at any special meeting. Waiver of
notice in writing by any Director of any special meeting of the Board, whether
prior or subsequent to such meeting, or attendance at such meeting by any
Director, Shall be equivalent to notice to such Director of such meeting.
Section 2.7. Quorum and Manner or Acting. Except as otherwise required by
law, the Certificate of Incorporation or these By-Laws, one-third of the whole
Board shall constitute a quorum for the transaction of any business at any
meeting of the Board and the act of a majority of the Directors present at a
meeting at which a quorum is present shall be the act of the Board. In the
absence of a quorum a majority of the Directors present may adjourn any meeting
from time to time until a quorum is present and no notice of any adjourned
meeting need be given other than by announcement at meeting which is being
adjourned. At any such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally called.
Section 2.8. Written Consent of Directors in Lieu of a Meeting. Any action
required or permitted to be taken at any meeting of the Board or of any
Committee thereof may be taken without a meeting, if all members of the Board or
of such Committee, as the case may be consent thereto in writing and the writing
or are filed with the minutes of proceedings of the Board or Committee.
Section 2.9. Compensation of Directors. Directors who are not officers of
the Corporation shall receive such compensation as may be fixed by the Board for
service on the Board or any Committee of the Board.
Section 2.10. Stockholder Nomination of Director Candidates.Subject to the
rights of holders of any class or series of stock having a preference over the
Common Stock as to dividends or upon liquidation, nominations for the election
of Directors may be made by the Board or a committee appointed by the Board or
by any stockholder entitled to vote in the election of Directors generally.
However, any stockholder entitled to vote in the election of Directors generally
may nominate one or more persons for election as Directors at a meeting only if
written notice of such stockholder's intent to make such nomination or
nominations has been given, either by personal delivery or by United Sates mail,
postage prepaid, to the Secretary of the Corporation (i) with respect to an
election to be held at an annual meeting of stockholders, not less than ninety
5
<PAGE>
days nor more than one hundred twenty days prior to the date one year after the
date of the immediately preceding annual meeting of stockholders, provided,
however, that in the event that the annual meeting is called for a date that is
not within thirty days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the tenth day following the day on which such notice of the date
of the annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs and (ii) with respect to an
election to be held at a special meeting of stockholders for the election of
Directors, not later than the close of business on the tenth day following the
date on which notice of such meeting is first given to stockholders. Each such
notice shall set forth: (a) the name and address of the stockholder who intends
to make the nomination and of the person or persons to be nominated; (b) a
representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; (d) such other information regarding each nominee proposed by
such stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the Board; and (e) the
consent of each nominee to serve as a Director of the Corporation, if so
elected. The presiding officer at the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing procedure.
Section 2.11. Removal.Subject to the rights of the holders of any class or
series of stock having a preference over the Common Stock as to dividends or
upon liquidation to elect Directors under specified circumstances, any Director
or Directors may be removed from office at any time, but only for cause and only
by the affirmative vote of (i) the holders of at least 75% of the voting power
of the then outstanding shares of stock of the Corporation entitled to vote
generally in the election of Directors, voting together as a single class, or
(ii) a majority of the Board.
ARTICLE III
Committees of the Board
Section 3.1. Executive Committee. There shall be an executive Committee,
consisting of the Chairman of the Board, the President and each Vice Chairman of
the Board, who shall be ex-officio members, any other Director who is an officer
of the Corporation or of any subsidiary of the Corporation who the Board may, in
its discretion, designate an ex-officio member, and at least six additional
directors appointed by the Board. The Board may designate one or more other
Directors as alternate members of the Executive Committee, who may replace any
absent or disqualified member, other than an ex-officio member, at any meeting
of the Executive Committee. The Chairman of the Board shall preside at meetings
of the Executive Committee.
6
<PAGE>
The Executive Committee shall exercise such powers as may be assigned to it
by the Board and may consider and make recommendations to the Board in respect
of any matters relating to the affairs of the Corporation.
Meetings of the Executive Committee shall be held at such times and places
as the Executive Committee shall determine or upon call of the Chairman of the
Board or the President. One-third of the members of the Executive Committee,
including at least one ex-officio member and three members who are not officers
of the Corporation or of any subsidiary, shall constitute a quorum.
Section 3.2. Other Committees. The Board may from time to time, by
resolution adopted by a majority of the whole Board, designate one or more other
Committees, each Committee to consist of two or more Directors of the
Corporation. The Board may designate one or more Directors as alternate members
of any such Committee, who may replace any absent or disqualified member at any
meeting of such Committee. Any such Committee shall exercise such powers as may
be assigned to it by the Board.
Section 3.3. Committee Rules; Quorum; Manner of Acting. Each Committee may
adopt rules consistent with these By-Laws governing the method of calling and
time and place of holding its meetings. One-half of any Committee for which a
quorum is not otherwise set forth in these By-Laws shall constitute a quorum for
the transaction of business, unless the Board shall otherwise provide, and the
act of a majority of the members of such Committee present at a meeting at which
a quorum is present shall be the act of such Committee.
ARTICLE IV
Officers
Section 4.1. Titles.The officers of the Corporation shall be a Chairman of
the Board, a President, one or more vice Chairmen of the Board, one or more Vice
Chairmen, one or more Vice Presidents, A Secretary and such other officers as
may be appointed at any time or from time to time by the Board. The Board may by
resolution delegate to the Executive Committee of the Board and to such officers
as the Board may designate authority to appoint officers below the Senior Vice
President, or equivalent, level, assign powers and duties to any officer below
the Executive Vice President, or equivalent, level, rescind or terminate the
appointment of any officer below the Executive Vice president, or equivalent,
level, and accept the resignation of any officer. Any one or more Vice
Presidents may be designated Senior Executive Vice President, Executive vice
President or Senior Vice President. One person may hold any two or more offices
and perform the duties thereof.
Section 4.2. Appointment, Term and Compensation of Officers. The Chairman
of the Board, the President, each vice Chairman of the Board, and each Vice
Chairman shall be appointed by the Board to hold office until the next annual
organization meeting of the Board and until their successors are appointed and
qualified. The Term of office of all other officers shall be at the pleasure of
the Board. The compensation of all officers of the Corporation shall be fixed by
resolution of the Board, except that the Board may authorize the Chairman of the
Board, the President and each Vice Chairman of the Board each to fix and to
delegate to such other officers as the Board may designate authority to fix any
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compensation of any person in any official position level not above a level
specified by the Board.
Section 4.3. Chairman of the Board and President.The Chairman of the Board
shall be the chief executive officer of the Corporation and shall have the
responsibility for carrying out the policies of the Board and, subject to the
direction of the Board, shall have general supervision over the business and
affairs of the Corporation. The President shall be the chief operating officer
of the Corporation and shall perform all duties incident to the office of the
President. The President shall have general supervision over the operations of
the Corporation, subject to the direction of the Board and of the Chairman of
the Board. The Chairman of the Board shall preside at all meetings of the Board
and of the stockholders. In the absence of the Chairman of the Board, the
President shall preside at meetings of the Board and of the Executive Committee
and of the stockholders. The Chairman of the Board and the President shall have
such other powers and perform such other duties as are prescribed by these By-
Laws and as usually pertain to their respective offices and as may be assigned
to them at any time or from time to time by the Board.
Section 4.4. Vice Chairman of the Board and Vice Chairmen. Each Vice
Chairman of the Board and each Vice Chairman shall have such powers and perform
such duties as are prescribed by these By-Laws and as usually pertain to his
office and as may be assigned to him at any time or from time to time by the
Board or the Chairman of the Board or the President. In the event of the absence
or disability of the Chairman of the Board and the President, the Vice Chairman
of the Board designated by the Chairman of the Board or the President shall act
in their place and assume their duties, including duties assigned to them in
these By-Laws.
Section 4.5. Vice Presidents. Each Vice President shall, upon request,
advise and assist the Chairman of the Board and the President in managing the
Corporation and shall have such other powers and perform such other duties as
usually pertain to his office and as may be assigned to him at any time or from
time to time by the Board or the Chairman of the Board or the President.
Section 4.6. Secretary. The Secretary shall act as Secretary of the Board
and as Secretary at meetings of the stockholders and, in general, shall have
charge of all records of the Corporation relating to its organization and
corporate action and shall have power to certify the contents thereof, and shall
have such other powers and perform such duties as usually pertain to his office
and as may be assigned to him at any time or from time to time by the Board or
the Chairman of the Board or the President.
Section 4.7. Other Officers. Other officers and assistant officers
appointed by the Board shall have such powers and perform such duties as usually
pertain to their respective offices and as may be assigned to them at any time
or from time to time by the Board or the Chairman of the Board or the President.
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ARTICLE V
Capital Stock
Section 5.1. Certificates; Transfer Agents and Registrars.Certificates for
stock of the Corporation shall be in such form as shall be approved by the Board
and shall be signed in the name of the Corporation by the Chairman of the Board
and/or the President and by the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer. Such certificates may be sealed with the
seal of the Corporation or a facsimile thereof, engraved, stamped or printed,
and shall contain such information as is required by law to be stated thereon.
If any stock certificate is countersigned by a transfer agent or registrar other
than the Corporation or its employee, any other signature on the certificate may
be a facsimile, engraved, stamped or printed. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
Section 5.2. Transfers of Stock. Transfers of stock of the Corporation
shall be made on the books of the Corporation by the registered holder thereof
or by his attorney thereunto authorized by power of attorney duly executed, and
on surrender of the certificate of certificates for such stock properly endorsed
or accompanied by a proper instrument of transfer. The Board may make such
additional rules and regulations as it may deem expedient concerning the issue,
registration and transfer of certificates for stock of the Corporation and may
appoint one or more banks or trust companies, including any banking subsidiary
of the Corporation, as transfer agents and registrars of the stock of the
Corporation and require all certificates to bear the signatures thereof. The
Corporation shall be entitled to treat the holder of record of any stock as the
owner thereof in fact.
Section 5.3. Stockholder Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board may fix, in advance, a
record date, which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action.
Only such stockholders as shall be stockholders of record on the date so fixed
shall be entitled to notice of, and to vote at, such meeting and any adjournment
thereof, or to give such consent, or to receive payment of such dividend or
other distribution, or to exercise such rights in respect of any such change,
conversion or exchange of stock, or to participate in such action, as the case
may be, notwithstanding any transfer of any stock on the books of the
Corporation after any record date so fixed.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
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ARTICLE VI
Seal
Section 6.1. Seal.The Seal of the Corporation shall be in such form as may
be approved from time to time by the Board and said seal, or a facsimile
thereof, may be imprinted or affixed by any process or in any manner reproduced.
The Secretary and any other officers authorized by resolution of the Board shall
be empowered to use and attest the corporate seal on all documents.
ARTICLE VII
Miscellaneous
Section 7.1. Checks, Notes, Drafts, Etc. Checks, notes, drafts,
acceptances, bills of exchange any other orders or obligations for the payment
of money shall be signed by such officer or officers or person or persons as the
Board by resolution shall from time to time designate.
Section 7.2. Shares of Other Corporations.The President, or in his absence
the Chairman of the Board, or in the absence of both any Vice Chairman of the
Board or Vice Chairman is authorized to vote, represent and exercise on behalf
of the Corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of the Corporation. The
authority herein granted to said officer to vote or represent on behalf of the
Corporation any and all Shares held by the Corporation in any other corporation
or corporations may be exercised either by said officer in person or by any
person authorized so to do by proxy or power of attorney duly executed by said
officer. Notwithstanding the above, however, the Board, in its discretion, may
designate by resolution any additional person to vote or represent said shares
of other corporations.
ARTICLE VIII
Indemnification
Section 8.1. Right to Indemnification. The right of a Director or officer
to indemnification or to the repayment or advancement of expenses pursuant to
this Article and Section 7 of the Certificate of Incorporation is a contract
right pursuant to which the person entitled thereto may bring suit as if the
provisions hereof were set forth in a separate written contract between the
Corporation and the Director or officer and shall continue to exist after the
rescission alteration, modification or repeal hereof with respect to any act or
omission occurring prior thereto. The right of a Director or officer to
indemnification provided by this Article or Section 7 of the Certificate of
Incorporation shall continue after such person has ceased to be a director or
officer of the Corporation and shall inure to the benefit of such person's
heirs, executors, administrators and legal representatives. The Corporation's
obligation to indemnify a Director or officer pursuant to this Article and
Section 7 of the Certificate of Incorporation in connection with a proceeding
initiated by such person shall exist only if the proceeding was authorized by
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the Board of Directors of the Corporation.
Section 8.2. Procedure for Requesting Indemnification. To obtain
indemnification hereunder a Director or officer shall submit to the Secretary of
the Corporation a written request to be indemnified as soon as practicable after
any claim is made against him or her for which indemnification is sought. Such
request shall include documentation and information reasonably available to the
person and reasonably necessary to determine whether and to what extent such
person is entitled to indemnification. In addition, the person shall give the
Corporation such cooperation as it may reasonably require.
Section 8.3. Prepayment of Expenses. The Corporation shall pay all
reasonable expenses including attorney's fees incurred by a Director or officer
in connection with any action, suit or proceeding referred to in Section 7 of
the Certificate of Incorporation in advance of its final disposition, provided,
however, that if the Delaware General Corporation Law requires, such payment
shall be made only upon receipt of a written undertaking by or on behalf of the
Director or officer to repay all amounts advanced if it should be determined
that the Director or officer is not entitled to be indemnified under this
Article or otherwise. In addition, such officer or Director shall give the
Corporation such information and cooperation in connection with such proceeding
as it may reasonably require.
Section 8.4. Claims. If a request for indemnification or for the repayment
or advancement of expenses under this Article is not paid in full within 60 days
after a written claim reasonably evidencing the expenses have been received by
the Corporation, the claimant may thereafter bring suit against the Corporation
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled also to be paid the expenses of prosecuting such claim.
In any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification or repayment or
advancement of expenses under applicable law. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of or repayment or advancement of expenses to the
claimant is proper in the circumstances, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel or its
stockholders) that the claimant is not entitled to indemnification or to the
repayment or advancement of expenses, shall be a defense to the action or create
a presumption that claimant is not so entitled.
Section 8.5. Agreements. The Corporation is authorized to enter into
agreements with any of its Directors, officers, employees or agents extending
rights to indemnification and advancement of expenses to such person to the
fullest extent permitted by applicable law.
Section 8.6. Non-Exclusivity of Rights. The rights conferred on any person
by this Article shall not be exclusive of any other rights to which such person
may be entitled under any statute, any provision of the Certificate of
Incorporation or these By-Laws, any agreement any vote of stockholders or
disinterested Directors, or otherwise.
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Section 8.7. Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article VIII shall not adversely affect any right
or protection of a Director or officer of the Corporation existing hereunder
with respect to any act or omission occurring prior to, or at the time of such
repeal or modification.
Section 8.8. Severability. In case any provision in this Article shall be
determined at any time to be unenforceable in any respect, the other provisions
shall not in any way be affected or impaired thereby, and the affected provision
shall be given the fullest possible enforcement in the circumstances for the
benefit of the person to be indemnified.
ARTICLE IX
Amendments
Section 9.1. Amendments. These By-Laws or any of them may be altered,
amended or repealed, or new By-Laws may be adopted, from time to time, by the
Board at any regular or special meeting thereof by vote of a majority of the
Directors then in office.
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