Exhibit 4.4
THE CIT GROUP SECURITIZATION CORPORATION II,
Depositor,
THE CIT GROUP / SALES FINANCING, INC.
Servicer,
and
[ ],
Trustee and Collateral Agent.
POOLING AND SERVICING AGREEMENT
Dated as of __________, ____
$_________________
CIT Marine Trust ____-_
[____]% Marine Receivable-Backed Certificates
TABLE OF CONTENTS
ARTICLE I
SECTION 1.1. Creation of Trust.................................................
ARTICLE II
SECTION 2.1. Conveyance of Receivables.........................................
ARTICLE III
SECTION 3.1. Surety Bond.......................................................
ARTICLE IV
SECTION 4.1. Acceptance by Trustee.............................................
ARTICLE V
SECTION 5.1. Additional Representations and Warranties of the Depositor........
ARTICLE VI
SECTION 6.1. The CIT Group / Sales Financing, Inc. not to resign as Servicer...
ARTICLE VII
SECTION 7.1. Definitions.......................................................
SECTION 7.2. Usage of Terms....................................................
SECTION 7.3. Cutoff Date and Record Date.......................................
ARTICLE VIII
SECTION 8.1. Representations and Warranties of Depositor.......................
SECTION 8.2. Repurchase upon Breach............................................
SECTION 8.3. Custody of Receivable Files.......................................
SECTION 8.4. Duties of Servicer as Custodian...................................
SECTION 8.5. Instructions; Authority to Act....................................
SECTION 8.6. Custodian's Indemnification.......................................
SECTION 8.7. Effective Period and Termination..................................
ARTICLE IX
SECTION 9.1. Duties of Servicer................................................
SECTION 9.2. Collection of Receivables Payments................................
SECTION 9.3. Realization upon Receivables......................................
SECTION 9.4. Physical Damage Insurance.........................................
SECTION 9.5. Maintenance of Security Interests in Boats........................
SECTION 9.6. Covenants of Servicer.............................................
SECTION 9.7. Purchase of Receivables upon Breach...............................
SECTION 9.8. Servicing Fee.....................................................
SECTION 9.9. Servicer's Certificate............................................
SECTION 9.10. Annual Statement as to Compliance; Notice of Default..............
SECTION 9.11. Annual Independent Certified Public Accountants Report............
SECTION 9.12. Access to Certain Documentation and Information Regarding
Receivables ....................................................
SECTION 9.13. Servicer Expenses.................................................
SECTION 9.14. Appointment of Sub-Servicer.......................................
SECTION 9.15. Representations and Warranties of Servicer with Respect to
Receivables ....................................................
ARTICLE X
SECTION 10.1. Accounts.........................................................
SECTION 10.2. Collections......................................................
SECTION 10.3. Application of Collections.......................................
SECTION 10.4. Additional Deposits..............................................
SECTION 10.5. Distributions....................................................
SECTION 10.6. Net Deposits.....................................................
SECTION 10.7. Statements to Certificateholders.................................
ARTICLE XI
SECTION 11.1. The Certificates.................................................
SECTION 11.2. Authentication of Certificates...................................
SECTION 11.3. Registration of Transfer and Exchange of Certificates............
SECTION 11.4. Mutilated, Destroyed, Lost or Stolen Certificates................
SECTION 11.5. Persons Deemed Owners............................................
SECTION 11.6. Access to List of Certificateholders Names and Addresses.........
SECTION 11.7. Maintenance of Office or Agency..................................
SECTION 11.8. Book-entry Certificates..........................................
SECTION 11.9. Notices to Clearing Agency.......................................
SECTION 11.10. Definitive Certificates..........................................
ARTICLE XII
SECTION 12.1. Representations of Depositor.....................................
SECTION 12.2. Liability of Depositor; Indemnities..............................
SECTION 12.3. Merger or Consolidation of, or Assumption of the Obligations of
Depositor .....................................................
SECTION 12.4. Limitation on Liability of Depositor and Others..................
SECTION 12.5. Depositor May Own Certificates...................................
SECTION 12.6. Depositor's Interest in Reserve Account; No Transfer.............
ARTICLE XIII
SECTION 13.1. Representations of Servicer......................................
SECTION 13.2. Liability of Servicer; Indemnities...............................
SECTION 13.3. Merger or Consolidation of or Assumption of Obligations of
Servicer ......................................................
SECTION 13.4. Limitation on Liability of Servicer and Others...................
ARTICLE XIV
SECTION 14.1. Events of Default................................................
SECTION 14.2. Appointment of Successor.........................................
SECTION 14.3. Notification to Certificateholders...............................
SECTION 14.4. Waiver of Past Defaults..........................................
ARTICLE XV
SECTION 15.1. Duties of Trustee................................................
SECTION 15.2. Trustee's Certificate............................................
SECTION 15.3. Trustee's Assignment of Purchased Receivables....................
SECTION 15.4. Certain Matters Affecting Trustee................................
SECTION 15.5. Trustee Not Liable for Certificates or Receivables...............
SECTION 15.6. Trustee May Own Certificates.....................................
SECTION 15.7. Trustee's Fees and Expenses......................................
SECTION 15.8. Representations and Warranties of Trustee........................
SECTION 15.9. Eligibility Requirements for Trustee.............................
SECTION 15.10. Resignation or Removal of Trustee................................
SECTION 15.11. Successor Trustee and Collateral Agent...........................
SECTION 15.12. Merger or Consolidation of Trustee...............................
SECTION 15.13. Appointment of Co-Trustee or Separate Trustee....................
ARTICLE XVI
SECTION 16.1. Termination of the Trust.........................................
SECTION 16.2. Optional Purchase of All Receivables.............................
ARTICLE XVII
SECTION 17.1. Amendment........................................................
SECTION 17.2. Protection of Title to Trust.....................................
SECTION 17.3. Limitation on Rights of Certificateholders.......................
SECTION 17.4. Governing Law....................................................
SECTION 17.5. Notices..........................................................
SECTION 17.6. Severability of Provisions.......................................
SECTION 17.7. Assignment.......................................................
SECTION 17.8. Certificates Nonassessable and Fully Paid........................
SECTION 17.9. No Petition......................................................
SCHEDULE A: SCHEDULE OF RECEIVABLES
EXHIBIT A: FORM OF SURETY BOND
EXHIBIT B: FORM OF CERTIFICATE
EXHIBIT C: FORM OF DEPOSITORY AGREEMENT
EXHIBIT D: MONTHLY SERVICER REPORT
EXHIBIT E: CERTIFICATEHOLDER STATEMENT
EXHIBIT F: TRUSTEE'S CERTIFICATE
This POOLING AND SERVICING AGREEMENT, dated as of __________, ____ is made with
respect to the formation of the CIT Marine Trust ____-_, among THE CIT GROUP
SECURITIZATION CORPORATION II, a Delaware corporation, as Depositor (the
"Depositor"), THE CIT GROUP / SALES FINANCING, INC., a Delaware corporation, as
Servicer ("the "Servicer"), and [ ], as Trustee (the "Trustee") and as
Collateral Agent (the "Collateral Agent").
WITNESSETH THAT: In consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
SECTION 1.1. Creation of Trust. Upon the execution of this Agreement by
the parties hereto, there is hereby created the CIT Marine Trust ____-_.
ARTICLE II
SECTION 2.1. Conveyance of Receivables (a) In consideration of the
Trustee's delivery, on behalf of the Trust, to or upon the order of the
Depositor of Certificates (the "Certificates") in an aggregate principal amount
equal to $______________ (the "Purchase Price"), the Depositor does hereby sell,
transfer, assign and otherwise convey to the Trustee, in trust for the benefit
of the Certificateholders and the Surety Bond Issuer, without recourse:
(i) all right, title and interest of the Depositor in and to
the Receivables and all payments received thereunder, in the case of
Simple Interest Receivables and due thereunder in the case of
Precomputed Receivables, in each case, after the Cutoff Date;
(ii) the interest of the Depositor in the security interests
in the Boats related to Receivables granted by Obligors pursuant to the
Receivables;
(iii) the Purchase Agreement, including the right of the
Depositor to cause CITSF to repurchase Receivables from the Depositor
under certain circumstances;
(iv) the interest of the Depositor in any proceeds from claims
on any physical damage, credit life or disability insurance policies
covering Boats or Obligors related to Receivables;
(v) the interest of the Depositor in any proceeds from
recourse to Dealers on Receivables; and
(vi) any proceeds of the foregoing.
The Depositor intends that the assignment and transfer herein
contemplated constitute a sale of the Receivables, conveying good title thereto
free and clear of any liens and encumbrances, from the Depositor to the Trustee
and that such property not be part of the Depositor's estate or property of the
Depositor in the event of any insolvency by the Depositor and the Trustee
acquiesces in such characterization. In the event that such conveyance is deemed
to be, or to be made as security for, a loan, the Depositor hereby grants to the
Trustee a first priority perfected security interest in all of the Depositor's
right, title and interest in and to the Receivables and the other property
conveyed hereby, and this Agreement shall constitute a security agreement under
applicable law.
SECTION 2.2 The Trustee agrees to hold any amounts received in respect
of the Receivables and allocable to late payment and extension fees,
administrative charges in trust for the benefit of the Depositor and agrees to
promptly remit any such amounts to the Depositor upon receipt thereof as
directed in writing in the relevant Servicer's Certificate.
ARTICLE III
SECTION 3.1. Surety Bond. The Servicer shall, simultaneously with the
execution and delivery of this Agreement, obtain the Surety Bond for the benefit
of the Trust in accordance with the respective terms thereof and deliver it to
the Trustee.
ARTICLE IV
SECTION 4.1. Acceptance by Trustee. The Trustee does hereby accept all
consideration conveyed by the Depositor pursuant to Section 2.1, and declares
that the Trustee shall hold such consideration and the Surety Bond and any
proceeds of any draws thereunder upon the trusts herein set forth for the
benefit of all present and future Certificateholders, subject to the terms and
provisions of this Agreement.
ARTICLE V
SECTION 5.1. Additional Representations and Warranties of the
Depositor. The Depositor does hereby make the following representations and
warranties on which the Trustee, on behalf of the Trust, relies in accepting the
Receivables in trust and executing and authenticating the Certificates:
(i) Original Maturity of Receivables. Each Receivable shall have an
original maturity of not more than _____________..
(ii) Remaining Maturity of Receivables. As of the Cutoff Date, each
Receivable shall have a remaining maturity of not more than __________.
(iii) Annual Percentage Rate. Each Receivable shall have a fixed Annual
Percentage Rate of not less than _____% and not greater than _____%.
(iv) Location of Receivable Files. The Receivable Files shall be kept
at the offices of CITSF. at [address].
(v) Maximum Balance. No Receivable has a Principal Balance greater than
$_______.
(vi) No Repossessions. As of the Cutoff Date, no Boat securing any
Receivable is in repossession status.
(vii) No Bankruptcies. As of the Cutoff Date, no Obligor on a
Receivable was noted in the related Receivable File as the subject of any
bankruptcy proceeding.
(viii) Delinquencies. As of the Cutoff Date, no Receivable shall have a
payment that is ___ or more days delinquent.
The foregoing representations and warranties shall (i) speak as of the
Closing Date, but shall survive the sale, transfer and assignment of the
Receivables to the Trustee, on behalf of the Trust and (ii) be subject to the
notice and repurchase provisions set forth in Section 8.2 in the same manner and
to the same extent as if they were set forth in Section 8.1.
ARTICLE VI
SECTION 6.1. CITSF Not to Resign as Servicer. Except as a result of the
operation of Section 13.3, CITSF shall not resign from the obligations and
duties hereby imposed on it as Servicer under this Agreement except upon
determination that the performance of its duties under this Agreement shall no
longer be permissible under applicable law. Notice of any such determination
permitting the resignation of CITSF shall be communicated to the Trustee 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 shall be evidenced by an Opinion of Counsel to such effect
delivered to the Trustee concurrently with or promptly after such notice. No
such resignation shall become effective until the Trustee or a successor
Servicer shall have assumed the responsibilities and obligations of CITSF in
accordance with Section 14.2.
ARTICLE VII
SECTION 7.1. Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Permitted Investments" are any of the following, which shall mature on
or prior to the next succeeding Deposit Date:
(i) any 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;
(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 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 or
under the laws of any other jurisdiction, 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 the highest credit rating
available from each Rating Agency or (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 (A) any security
described in clause (i) above or (B) any other security issued or
guaranteed by an agency or instrumentality of the United States of
America, in either case entered into with a depository institution or
trust company (acting as principal) described in clause (ii) (A) above
or with any money market funds maintained by a broker which has, at the
time of such investment, the highest credit rating from each Rating
Agency;
(iv) commercial paper having a rating of at least "___" by S&P
and "___" by ▇▇▇▇▇'▇ at the time of such investment, including
commercial paper having such rating issued by the Trustee or The CIT
Group, Inc.
(v) money market funds or money market mutual funds (other
than closed-end funds), including funds for which [ ] is investment
manager or advisor, which (A) maintain a constant net asset value and
(B) have at the time of such investment a rating by AAAm or ___ by S&P
or ___ by ▇▇▇▇▇'▇;
(vi) if the Trustee does not receive written investment
instructions, the investments referred to in (v) above; or
(vii) any other investment approved in writing by each Rating
Agency.
"Corporate Trust Office" at the date of the execution hereof is located
at: ____________________.
"Cutoff Date" shall be the close of business on __________, ____.
"Final Scheduled Distribution Date" means __________, ____.
"Insolvency Proceeding" means the commencement, after the Closing Date,
of any bankruptcy, insolvency, readjustment of debt, reorganization, marshalling
of assets and liabilities or similar proceedings by or against any person, or
the commencement, after the Closing Date, of any proceedings by or against any
Person for the winding up or liquidation of its affairs, or the consent after
the date hereof to the appointment of a trustee, conservator, receiver or
liquidator in any bankruptcy, insolvency, readjustment of debt, reorganization,
marshalling of assets and liabilities or similar proceedings of or relating to
any Person.
"Permitted Investments" shall be, at anytime, any one or more of the
obligations and securities set forth in Schedule C hereto.
"Purchase Price" has the meaning set forth in Section 2.1(a).
"Reimbursement Agreement" is the Insurance and Reimbursement Agreement
dated as of __________, ____, among the Surety Bond Issuer, the Depositor and
the Servicer.
"Required Deposit Rating" shall be a rating on short-term deposits of
"[__]" by ▇▇▇▇▇'▇ and "[__]" by S & P or any other rating acceptable to each of
the Rating Agencies; and any requirement that deposits have the "Required
Deposit Rating" shall mean that such deposits have the foregoing ratings from
each of such rating agencies or such other rating which is acceptable to the
Rating Agencies.
"Reserve Account" means the account designated as such, established and
maintained pursuant to Section 10.1(b).
"Servicing Fee Rate" shall be ____ per annum.
"Surety Bond" means the unconditional, irrevocable surety bond,
substantially in the form attached hereto as Exhibit A, to be issued by the
Surety Bond Issuer and naming the Trustee as beneficiary.
"Surety Bond Issuer" shall be _______________.
"Account Property" means all amounts and investments held from time to
time in the Reserve Account, as the case may be (whether in the form of deposit
accounts, Physical Property, book-entry securities, uncertificated securities,
securities entitlements, investment property or otherwise), and all proceeds of
the foregoing.
"Agreement" means this Pooling and Servicing Agreement executed by the
Depositor, the Servicer, the Trustee and the Collateral Agent as of the Cutoff
Date, and all amendments and supplements hereto.
"Amount Financed" with respect to a Receivable means the original
amount advanced under the Receivable toward the purchase price of the Boat and
any cost to the related Obligor of any dealer installed options, extended
warranty plans and credit life and disability insurance, including any amount
allocable to the premium of collateral protection insurance purchased by CITSF
prior to the Cutoff Date.
"Annual Percentage Rate" or "APR" of a Receivable means the annual rate
of finance charges stated in the Receivable.
"Available Funds" means, for any Distribution Date, the sum of (i) all
Collections received by the Servicer during the related Collection Period, (ii)
all refunds received by the Servicer with respect to any refunded portion of
extended warranty protection plan costs, or of physical damage, credit life or
disability insurance premiums included in the Amount Financed unless such refund
must be paid to the Obligor, (iii) the Purchase Amount of all Receivables
purchased or repurchased under this Agreement on the Business Day prior to the
Distribution Date, (iv) Liquidation Proceeds received by the Servicer during the
related Collection Period and (v) all net income and gain realized on funds
deposited into the Collection Account or the Certificate Account and invested in
Permitted Investments during the related Collection Period.
"Boat" means (i) a new or used boat, or boat motor and boat trailer,
securing an Obligor's indebtedness under the respective Receivable.
"Book-Entry Certificates" shall mean beneficial interests in the
Certificates, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 11.8.
"Business Day" means any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the City of New York, New York shall
be authorized or obligated by law or executive order to be closed.
"Carry-Over Monthly Interest" means, for any Distribution Date, the
aggregate Monthly Interest Payments for prior Distribution Dates which have not
been paid, after giving effect to any payment of the Reserve Account Withdrawal
Amount or any Surety Drawing Amount on such Distribution Date made pursuant to
Section 10.5(a)(ii) and (iii), respectively.
"Carry-Over Monthly Principal" means, for any Distribution Date, the
aggregate Monthly Principal Payments for prior Distribution Dates which have not
been paid, after giving effect to any payment of the Reserve Account Withdrawal
Amount or any Surety Drawing Amount on such Distribution Date made pursuant to
Section 10.5(a)(ii) and (iii), respectively.
"Carry-Over Servicing Fee" means, for any Distribution Date, the
aggregate Servicing Fees for prior Distribution Dates which have not been paid
after giving effect to any Reserve Account Interest Withdrawal or any Surety
Interest Drawing made on such Distribution Date pursuant to Section 10.5(a)(ii)
and (iii), respectively.
"Certificate" means a certificate executed by the Trust and
authenticated by the Trustee substantially in the form of Exhibit B.
"Certificate Account" means the account designated as such, established
and maintained pursuant to Section 10.1(a).
"Certificate Balance" means, as of any date of determination, the
Original Certificate Balance, reduced by all principal distributions on the
Certificates.
"Certificate Factor" means, as of the close of business on a
Distribution Date, a seven-digit decimal figure equal to the Certificate Balance
as of such Distribution Date divided by the Original Certificate Balance.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the owner of such Book-Entry Certificate, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"Certificate Register" and "Certificate Registrar" mean the register
maintained and the registrar appointed pursuant to Section 11.3.
"Certificateholder" or "Holder" means the Person in whose name the
respective Certificate shall be registered in the Certificate Register, except
that, solely for the purposes of giving any consent, waiver, request or demand
pursuant to this Agreement, the interest evidenced by any Certificate registered
in the name of the Depositor or the Servicer, or any Person controlling,
controlled by, or under common control with the Depositor or the Servicer, shall
not be taken into account in determining whether the requisite percentage
necessary to effect any such consent, waiver, request or demand shall have been
obtained.
"Clearing Agency" shall mean an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
"Clearing Agency Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Collateral Agent" means the Person acting as Collateral Agent under
this Agreement, its successor in interest, and any successor Collateral Agent
appointed pursuant to Section 15.10.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 10.1(a).
"Collection Period" means each calendar month.
"Collections" shall mean, with respect to a Collection Period, all
payments by or on behalf of the Obligors made during such Collection Period
other than Liquidation Proceeds on the Receivables (other than a Purchased
Receivable).
"Corporate Trust Office" means the office of the Trustee at which its
corporate trust business shall be administered, which office at the date hereof
is [address].
"Dealer" means the dealer who sold a Boat, and who originated and
assigned the respective Receivable to CITSF under an existing agreement between
such dealer and CITSF.
"Defaulted Receivable" means a Receivable as to which either (x) the
Servicer has determined, in accordance with its customary servicing procedures,
that eventual payment in full is unlikely or (y) (1) 90 or more days have
elapsed since the related Boat has been repossessed by the Servicer, in the case
of any Receivable with a Principal Balance of $______ or less as of the day such
Boat was repossessed by the Servicer or (2) 180 or more days have elapsed since
the related Boat has been repossessed by the Servicer, in the case of any
Receivable with a Principal Balance of greater than $______ as of the day such
Boat was repossessed by the Servicer.
"Definitive Certificates" means the Certificates specified in Section
11.8.
"Delivery" or "Deliver" when used with respect to Account Property
means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that
constitute "instruments" within the meaning of Section 9-105(1)(i) of
the Relevant UCC and are susceptible to physical delivery, transfer
thereof to the Trustee or its nominee, agent or custodian by physical
delivery to the Trustee or its nominee, agent or custodian endorsed to,
or registered in the name of, the Trustee, as trustee for the benefit
of the Certificateholders, or its nominee, agent or custodian or
endorsed in blank, and, with respect to a certificated security (as
defined in Section 8-102 of the Relevant UCC) transfer thereof (i) by
delivery of such certificated security endorsed to, or registered in
the name of, the Trustee, as trustee for the benefit of the
Certificateholders, or its nominee, agent or custodian or endorsed in
blank to a financial intermediary (as defined in Section 8-313 of the
Relevant UCC) and the making by such financial intermediary of entries
on its books and records identifying such certificated securities as
belonging to the Trustee, as trustee for the benefit of the
Certificateholders, or its nominee, agent or custodian and the sending
by such financial intermediary of a confirmation of the purchase of
such certificated security by the Trustee or its nominee, agent or
custodian, or (ii) by delivery thereof to a "clearing corporation" (as
defined in Section 8-102(3) of the Relevant UCC) and the making by such
clearing corporation of appropriate entries on its books reducing the
appropriate securities account of the transferor and increasing the
appropriate securities account of a financial intermediary by the
amount of such certificated security, the identification by the
clearing corporation of the certificated securities for the sole and
exclusive account of the financial intermediary, the maintenance of
such certificated securities by such clearing corporation or a
"custodian bank" (as defined in Section 8102(4) of the Relevant UCC) or
the
nominee of either subject to the clearing corporation's exclusive
control, the sending of a confirmation by the financial intermediary of
the purchase by the Trustee, as trustee for the benefit of the
Certificateholders, or its nominee, agent or custodian of such
securities and the making by such financial intermediary of entries on
its books and records identifying such certificated securities as
belonging to the Trustee, as trustee for the benefit of the
Certificateholders, as applicable, or its respective nominee, agent or
custodian (all of the foregoing, "Physical Property"), and, in any
event, any such Physical Property in registered form shall be in the
name of the Trustee, as trustee for the benefit of the
Certificateholders, or its nominee, agent or custodian; and such
additional or alternative procedures as may hereafter become
appropriate to effect the complete transfer of ownership of any such
Account Property (as defined herein) to the Trustee, as trustee for the
benefit of the Certificateholders, or its nominee, agent or custodian,
consistent with changes in applicable law or regulations or the
interpretation thereof;
(b) with respect to any securities issued by the U.S.
Treasury, the Federal Home Loan Mortgage Corporation or by the Federal
National Mortgage Association that is a book-entry security held
through the Federal Reserve System pursuant to Federal book-entry
regulations, the following procedures, all in accordance with
applicable law, including applicable federal regulations and Articles 8
and 9 of the Relevant UCC: book-entry registration of such Account
Property to an appropriate book-entry account maintained with a Federal
Reserve Bank by a financial intermediary which is also a "depository"
pursuant to applicable federal regulations and issuance by such
financial intermediary of a deposit advice or other written
confirmation of such book-entry registration to the Trustee or its
nominee, agent or custodian of the purchase by the Trustee, as trustee
for the benefit of the Certificateholders, or its nominee or custodian
of such book-entry securities; the making by such financial
intermediary of entries in its books and records identifying such
book-entry security held through the Federal Reserve System pursuant to
federal book-entry regulations as belonging to the Trustee, as trustee
for the benefit of the Certificateholders, or its nominee, agent or
custodian and indicating that such custodian holds such Account
Property solely as agent for the Trustee, as trustee for the benefit of
the Certificateholders, or its nominee, agent or custodian; and such
additional or alternative procedures as may hereafter become
appropriate to effect complete transfer of ownership of any such
Account Property to the Trustee or its nominee, agent or custodian,
consistent with changes in applicable law or regulations or the
interpretation thereof; and
(c) with respect to any item of Account Property that is an
uncertificated security under Article 8 of the Relevant UCC and that is
not governed by clause (b) above, registration on the books and records
of the issuer thereof in the name of the financial intermediary, the
sending of a confirmation by the financial intermediary of the purchase
by the Trustee, as trustee for the benefit of the Certificateholders,
or its nominee, agent or custodian of such uncertificated security, and
the making by such financial intermediary of entries on its books and
records identifying such uncertificated certificates as belonging to
the Trustee, as trustee for the benefit of the Certificateholders, or
its nominee, agent or custodian.
"Deposit Date" means the Business Day preceding each Distribution Date.
"Depositor" means The CIT Group Securitization Corporation II, a
corporation organized under the laws of the State of Delaware, as the depositor
of the Receivables hereunder, and each successor to The CIT Group Securitization
Corporation II (in the same capacity) pursuant to Section 12.3.
"Receivables" means the marine retail installment sales contracts
listed on Schedule A.
"Receivables Files" means the documents specified in Section 8.3 that
relate to Receivables.
"Depository Agreement" means the agreement among the Depositor, the
Trustee and the initial Clearing Agency, dated __________, ____, substantially
in the form attached hereto as Exhibit C.
"Determination Date" means the ____ of each month.
"Distribution Date" means, for each Collection Period, the ____ of the
following month, or if the ____ is not a Business Day, the next following
Business Day, commencing with the date specified herein.
"Event of Default" means an event specified in Section 14.1.
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind other than tax liens, mechanics' liens and any liens
which attach to the respective Receivable by operation of law.
"Liquidation Proceeds" means, with respect to any Collection Period,
the monies (including recoveries) collected from whatever source, during such
Collection Period on a Defaulted Receivable, net of the sum of any amounts
expended by the Servicer for the account of the Obligor plus any amounts
required by law to be remitted to the Obligor.
"Monthly Interest Payment" means, as of any Distribution Date,
one-twelfth of the product of the Pass-Through Rate and the Certificate Balance
as of the close of business on the prior Distribution Date or, in the case of
the first Distribution Date, the Certificate Balance as of the Closing Date.
"Monthly Principal Payment" means, (x) as of any Distribution Date
(except for the Final Scheduled Distribution Date), an amount equal to the sum
of (i) that portion of all collections received by the Servicer during the
related Collection Period on Receivables allocable to principal (which shall not
include the principal portion of proceeds from any recoveries or liquidations in
respect of any Defaulted Receivable in any Collection Period following the
Collection Period in which such Receivable became a Defaulted Receivable), (ii)
Purchase
Amounts allocable to principal and paid by the Depositor to the
Servicer or by the Servicer and (iii) the Principal Balance of Defaulted
Receivables, which became Defaulted Receivables during the related Collection
Period and (y) as of the Final Scheduled Distribution Date, after giving effect
to the distribution of the amounts set forth in (i) through (iii) of clause (x),
an amount necessary to reduce the Certificate Balance to zero on such
Distribution Date.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"CITSF" means The CIT Group / Sales Financing, Inc., a corporation
organized under the laws of Delaware, or its successors.
"Net Credit Loss Ratio" means, for any Collection Period, an amount
expressed as an annualized percentage equal to (i) the aggregate gross losses
with respect to the Receivables recognized in such Collection Period, as
determined in accordance with the Servicer's normal practices, less any
recoveries received during such Collection Period, divided by (ii) the average
of the Pool Balances as of the last day of the prior Collection Period and as of
the last day of such Collection Period.
"Obligor" on a Receivable means the purchaser or the co-purchasers of
the Boat or any other Person who owes payments under the Receivable.
"Officer's Certificate" means a certificate signed by the chairman of
the board, the president, any vice chairman of the board, any vice president,
the treasurer, any assistant treasurer or the controller of the Depositor, the
Servicer or the Surety Bond Issuer, as appropriate.
"Opinion of Counsel" means a written opinion of counsel who may but
need not be counsel to the Depositor or Servicer, which opinion shall be
acceptable to the Trustee, and provided that any opinion relating to the tax
status of the Trust shall be rendered by __________ or such other independent
outside counsel acceptable to the Trustee.
"Original Certificate Balance" means $__________ [the Certificate
Balance as of the Closing Date].
"Original Pool Balance" means $__________ [the Pool Balance as of the
Cutoff Date].
"Pass-Through Rate" means the interest rate payable to
Certificateholders.
"Permitted Investments" means those investments specified in Schedule
C.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
or government or any agency or political subdivision thereof.
"Physical Property" has the meaning assigned to such term in the
definition of "Delivery" above.
"Pool Balance" means as the last day of any Collection Period, the
aggregate Principal Balance of the Receivables. For purposes of this definition
only the Principal Balance of a Defaulted Receivable shall equal zero.
"Precomputed Receivable" means any Receivable under which the portion
of a payment allocable to earned interest (which may be referred to in the
Receivable as an add-on finance charge) and the portion allocable to the Amount
Financed is determined according to the sum of periodic balances or the sum of
monthly balances or any equivalent method or are monthly actuarial receivables.
"Principal Balance" of a Receivable, as of the last day of a Collection
Period, means the Amount Financed minus the sum of (a) that portion of all
Collections received on or prior to such day by the Servicer allocable as a
payment of principal pursuant to Section 10.3, (b) any refunded portion of
extended warranty protection plan costs, or of physical damage, credit life or
disability insurance premiums included in the Amount Financed which is applied
during the related Collection Period unless such refund must be paid to the
Obligor, and (c) the principal portion of all Purchase Amounts paid by the
Depositor or the Servicer, in respect of such Receivable, after the preceding
Distribution Date but prior to the related Distribution Date.
"Purchase Agreement" means the Purchase Agreement executed by the
Depositor and CITSF as of the Cutoff Date.
"Purchase Amount" means the amount, as of the last day of a Collection
Period, required to prepay in full the Principal Balance of a Receivable plus
accrued interest thereon at one-twelfth the sum of the Pass-Through Rate plus
the Servicing Fee Rate to the last day of the month of purchase.
"Purchased Receivable" means a Receivable purchased as of the last day
of a Collection Period by the Servicer pursuant to Section 9.7 or Section 16.2
or by the Depositor pursuant to Section 8.2.
"Rating Agency" means S&P, Moody's or any other nationally recognized
rating agency initially contracted by the Depositor to rate the Certificates.
"Receivables Purchase Agreement" means the Receivables Purchase
Agreement, dated as of __________, ____ between CITSF and [ ], as Administrator.
"Record Date" means for any Distribution Date the close of business on
the Business Day prior to such Distribution Date.
"Reimbursement Agreement" means the agreement relating to the Surety
Bond.
"Required Deposit Rating" means the rating specified in Section 6.1.
"Reserve Account Initial Deposit" shall equal $____________.
"Reserve Account Withdrawal Amount" shall have the meaning in Section
10.5(a)(ii).
"Residual Certificate" means the Certificate specified in Section 11.1.
"Scheduled Payment" on a Receivable means that portion of the payment
required to be made by the Obligor on the related due date during the respective
Collection Period sufficient to amortize at level monthly payments the Principal
Balance and to provide interest at the APR.
"Servicer" means CITSF and each successor to CITSF(in the same
capacity) pursuant to Section 13.3.
"Servicer's Certificate" means a certificate completed and executed by
the Servicer by its chairman of the board, its president, any vice chairman of
the board, any vice president, the treasurer, any assistant treasurer or the
controller of the Servicer pursuant to Section 9.9, substantially in the form of
Exhibit D.
"Servicing Fee" means the fee payable to the Servicer for services
rendered during each Collection Period, determined pursuant to Section 9.8.
"Servicing Standards" means, at any time, the quality of the Servicer's
(or in the event that a subservicer performs servicing operations on behalf of
the Servicer, such subservicer's) performance with respect to (i)compliance with
the terms and conditions and (ii) adequacy, measured in accordance with industry
standards and current and historical standards of the Servicer (or such
subservicer) in respect of all receivables serviced by the Servicer (or such
subservicer), regardless of whether such receivables are owned by the Servicer
(or such subservicer), of the Servicer's (or such subservicer's) servicing of
the Receivables.
"Ship Mortgage Act" means the Ship Mortgage Act of 1920, as amended.
"Simple Interest Method" means the method of allocating a fixed level
payment to principal and interest, pursuant to which the portion of such payment
that is allocated to interest is equal to the product of the fixed rate of
interest multiplied by the unpaid principal balance multiplied by the number of
days elapsed since the preceding payment of interest was made.
"Simple Interest Receivable" means any Receivable under which the
portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
"Specified Reserve Account Requirement" with respect to any
Distribution Date, shall equal the greater of (i) $____________, or (ii) ____%
of the Pool Balance as of the last day of the related Collection Period. The
Specified Reserve Account Requirement may be reduced
without the consent of the Certificateholders to a lesser amount, including to
zero, as determined by the Depositor; provided that such reduction is consented
to in writing by the Surety Bond Issuer and does not adversely affect the rating
of the Certificates assigned by any Rating Agency. Upon the occurrence and
continuance of the event specified in Section 14.1(b)(iv), the Specified Reserve
Account Requirement shall equal the sum of the Certificate Balance, accrued
interest thereon and the Servicing Fee payable pursuant to Section 10.5 (b) (ii)
and all amounts available under Section 10.5(b)(vi) shall be deposited in the
Reserve Account up to such amount.
"S&P" means Standard & Poor's Ratings Services, a Division of The
▇▇▇▇▇▇-▇▇▇▇ Companies.
"State" means any state of the United States of America or the District
of Columbia.
"Statement to Certificateholders" means a certificate completed and
executed by the Servicer by its the chairman of the board, its president, any
vice chairman of the board, any vice president, the treasurer, any assistant
treasurer or the controller of the Servicer pursuant to Section 10.7,
substantially in the form of Exhibit E.
"Surety Bond" means the unconditional, irrevocable surety bond
designated as such.
"Surety Bond Issuer Default" means the failure of the Surety Bond
Issuer to make a payment required under the Surety Bond in accordance with its
terms.
"Surety Drawing Amount" shall have the meaning set forth in Section
10.5(a)(iii).
"Trust" means the trust created hereby, the estate of which shall
consist of (i) the Receivables (other than Purchased Receivables), and all
payments received in the case of Simple Interest Receivables and all payments
due thereunder, in the case of Precomputed Receivables, in each case, after the
Cutoff Date; (ii) funds deposited into the Collection Account or the Certificate
Account; (iii) any interest of the Depositor in the security interests in the
Boats granted by the Obligors; (iv) the Surety Bond; (v) the Purchase Agreement;
(vi) any interest of the Depositor in any proceeds from claims on physical
damage, credit life or disability insurance policies covering the Boats or the
Obligors, as the case may be; (vii) any property (including the right to receive
future Liquidation Proceeds) that shall have secured a Receivable and that shall
have been acquired by or on the behalf of the Trustee; and (viii) the proceeds
of all of the foregoing.
"Trustee" means the Person acting as Trustee hereunder, its successor
in interest, and any successor trustee pursuant to Section 15.11.
"Trustee Officer" means any officer assigned to the Corporate Trust
Office, including any managing director, vice president, any assistant vice
president, any assistant secretary, any assistant treasurer, any trust officer
or any other officer of the Corporate Trust Office of the Trustee customarily
performing functions similar to those performed by persons who at the time shall
be such officers and also means, with respect to a particular corporate trust
matter, any
other officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Trustee's Certificate" means a certificate completed and executed by
the Trustee by a Trustee Officer pursuant to Section 15.2, substantially in the
form of, in the case of an assignment to the Depositor, Exhibit F-1, and in the
case of an assignment to the Servicer, Exhibit F-2.
"UCC" means the Uniform Commercial Code as in effect in the respective
jurisdiction.
"Unsold Contract" means any retail installment contract serviced by
CITSF other than the Receivables.
SECTION 7.2. Usage of Terms. With respect to all terms used herein, the
singular includes the plural and the plural the singular; words importing any
gender include the other gender; references to "writing" include printing,
typing, lithography and other means of reproducing words in a visible form;
references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited hereby; references to Persons include
their permitted successors and assigns; and the term "including" means
"including without limitation."
SECTION 7.3. Cutoff Date and Record Date. All references to the Record
Date prior to the first Record Date in the life of the Trust shall be to the
Cutoff Date.
ARTICLE VIII
SECTION 8.1. Representations and Warranties of Depositor. The Depositor
makes the following representations and warranties as to the Receivables on
which the Trustee relies in accepting the Receivables in trust and executing and
authenticating the Certificates. Such representations and warranties speak as of
the Closing Date, but shall survive the sale, transfer and assignment of the
Receivables to the Trustee.
(i) Characteristics of Receivables. Each Receivable (a) shall
have been originated in the United States by a Dealer for the retail
sale of a Boat in the ordinary course of such Dealer's business, shall
have been fully and properly executed by the parties thereto, shall be
denominated in U.S. dollars, (b) shall have created or shall create a
valid, subsisting and enforceable first priority perfected security
interest in favor of CITSF in the related Boat (other than in the case
of boat motors subject to certificate of title statutes that provide
for perfection of the security interests in such boat motors by the
filing of a UCC-1 financing statement), which security interest has
been assigned to the Depositor and shall be validly assignable by the
Depositor to the Trustee, (c) shall contain customary and enforceable
provisions such that the rights and remedies of the holder thereof
shall be adequate for realization against the collateral of the
benefits of the security, (d) shall provide for level monthly payments
(provided that the payment in the first or last month
in the life of the Receivable may be minimally different from the level
payment) that fully amortize the Amount Financed by maturity and yield
interest at the Annual Percentage Rate, and (e) shall provide for, in
the event that such contract is prepaid, a prepayment that fully pays
the Principal Balance and includes accrued but unpaid interest due
through the date of prepayment in an amount at least equal to the
Annual Percentage Rate.
(ii) Schedule of Receivables. The information set forth in
Schedule A shall be true and correct in all material respects as of the
close of business on the Cutoff Date, and no selection procedures
believed to be adverse to the Certificateholders shall have been
utilized in selecting the Receivables.
(iii) Compliance with Law. Each Receivable and the sale of the
related Boat shall have complied at the time it was originated or made,
and at the date of issuance of the Certificates shall comply, in all
material respects with all requirements of applicable Federal, State,
and local laws and regulations thereunder, including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal
Credit Opportunity Act, the Federal Trade Commission Act, the Fair
Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal
Trade Commission Credit Practices Rule, State unfair and deceptive
trade practice laws, and State adaptations of the National Consumer Act
and of the Uniform Consumer Credit Code, and any other applicable
consumer credit, equal credit opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable shall represent the
genuine, legal, valid and binding payment obligation in writing of the
Obligor, enforceable by the holder thereof in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance and similar laws relating to creditors' rights
generally and subject to general principles of equity.
(v) No Government Obligor. None of the Receivables shall be
due from the United States of America or any State or local government
or from any agency, department or instrumentality of the United States
of America, any State or local government.
(vi) Receivables in Force. No Receivable shall have been
satisfied, subordinated or rescinded, nor shall any Boat have been
released from the security interest granted by the related Receivable
in whole or in part.
(vii) No Waiver. No provision of a Receivable shall have been waived.
(viii) No Defenses. Except for the security interests in favor
of the Depositor and the Trustee, the Receivables are free and clear of
all security interests, liens, charges, and encumbrances and to the
best knowledge of the Depositor no right of rescission, setoff,
counterclaim or defense shall have been asserted or threatened with
respect to any Receivable.
(ix) No Liens. No liens or claims shall have been filed for
work, labor or materials relating to a Boat that shall be liens prior
to, or equal to the security interest in the Boat granted by the
Receivable.
(x) Insurance. The Obligor has obtained physical damage
insurance covering the Boat and the Obligor is required under the terms
of the Receivable to maintain such insurance.
(xi) Title. It is the intention of the Depositor that the sale
and assignment herein contemplated constitute a sale of the Receivables
from the Depositor to the Trust and that the beneficial interest in and
title to the Receivables not be part of the debtor's estate in the
event of the filing of a bankruptcy petition by or against the
Depositor under any bankruptcy law. No Receivable has been sold,
transferred, assigned or pledged by the Depositor to any Person other
than the Trustee. Immediately prior to the sale and assignment herein
contemplated, the Depositor had good and marketable title to each
Receivable free and clear of all Liens, and, immediately upon the sale
and assignment contemplated hereby, the Trustee for the benefit of the
Certificateholders and the Surety Bond Issuer shall have good and
marketable title to each Receivable, free and clear of all Liens,
encumbrances, security interests and rights of others; and the sale and
assignment has been perfected under the UCC.
(xiii) Lawful Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of any jurisdiction
under which the sale, transfer and assignment of such Receivable under
this Agreement or pursuant to transfers of the Certificates shall be
unlawful, void or voidable.
(xiv) Security Interest. Upon the Receivables being conveyed
to the Trust pursuant to Section 2.1(a), the Trust shall have a
perfected security interest under the UCC in the Receivables.
(xv) One Original. There shall be in existence one, and only
one, original executed copy of each Receivable.
(xvi) UCC Characterization. Each Receivable constitutes
"Chattel Paper" under the UCC.
(xvii) Ship Mortgage Act. No Boat related to any Receivable
meets the requirements for documentation under the Ship Mortgage Act.
(xviii) No Default. Except for payment defaults continuing for
a period of less than 60 days as of the Cutoff Date, no default,
breach, violation or event permitting
acceleration under the terms of any Receivable shall have occurred and
neither CITSF nor the Depositor shall have waived any of the foregoing.
SECTION 8.2. Repurchase Upon Breach. The Depositor or the Servicer, as
the case may be, shall inform the other parties and the Trustee promptly, in
writing, upon the discovery of any breach of the Depositor's representations and
warranties pursuant to Section 8.1. Unless the breach shall have been cured by
the second Record Date following the discovery, the Depositor shall repurchase
any Receivable, which as a result of such breach would materially and adversely
affect the interests of the Certificateholders or the Surety Bond Issuer, as of
such Record Date (or, at the Depositor's option, the first Record Date following
the discovery). In consideration of the purchase of the Receivable, the
Depositor shall remit the Purchase Amount in the manner specified in Section
10.4(a) on the Deposit Date. The sole remedy of the Trustee, the Trust or the
Certificateholders with respect to a breach of the Depositor's representations
and warranties pursuant to Section 8.1 shall be to require the Depositor to
repurchase Receivables pursuant to this Section 8.2.
SECTION 8.3. Custody of Receivable Files. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Trustee, on
behalf of the Trust, upon the execution and delivery of this Agreement, hereby
revocably appoints the Servicer, and the Servicer hereby accepts such
appointment, to act as the agent of the Trustee as custodian of the following
documents or instruments which are hereby constructively delivered to the Trust
on behalf of the Trust, with respect to each Receivable:
(i) The original of the Receivable fully executed by the
Obligor.
(ii) The original credit application fully executed by the
Obligor.
(iii) The original certificate of title or such documents that
the Servicer or the Depositor shall keep on file, in accordance with
its customary procedures, evidencing the security interest of CITSF in
the Boat.
(iv) Any and all other documents that the Servicer shall keep
on file, in accordance with its customary procedures, relating to a
Receivable, an Obligor or a Boat.
The Trustee shall have no duty to monitor the performance of the
Servicer and shall have no liability in connection with the Servicer's
performance hereunder.
SECTION 8.4. Duties of Servicer as Custodian. (a) Safekeeping. The
Servicer shall hold the Receivable Files on behalf of the Trust for the use and
benefit of all Certificateholders and the Surety Bond Issuer, and maintain such
accurate and complete accounts, records and computer systems pertaining to each
Receivable File as shall enable the Servicer to comply with this Agreement. In
performing its duties as custodian the Servicer shall act with reasonable care,
using that degree of skill and attention that the Servicer exercises with
respect to the receivable files relating to all comparable receivables that the
Servicer services for itself or others. The Servicer shall conduct, or cause to
be conducted, periodic audits of the Receivable Files held by
it under this Agreement, and of the related accounts, records and computer
systems, in such a manner as would enable the Trustee to verify the accuracy of
the Servicer's record keeping. The Servicer shall promptly report to the Trustee
any failure on its part to hold the Receivable Files and maintain its accounts,
records and computer systems as herein provided and promptly take appropriate
action to remedy any such failure. Nothing herein shall be deemed to require an
initial review or any periodic review by the Trustee of the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer shall maintain
each Receivable File at one of its offices specified in Section 5.1(iv), or at
such other office as shall be specified to the Trustee by written notice not
later than 90 days after any change in location. The Servicer shall make
available to the Trustee or its duly authorized representatives, attorneys or
auditors a list of locations of the Receivable Files, and shall also so make
available the Receivable Files themselves, and the related accounts, records and
computer systems maintained by the Servicer, at such times as the Trustee shall
reasonably instruct.
(c) Release of Documents. Upon instruction from the Trustee, the
Servicer shall release any Receivable File to the Trustee, the Trustee's agent
or the Trustee's designee, as the case may be, at such place or places as the
Trustee may designate, as soon as practicable.
SECTION 8.5. Instructions; Authority to Act. The Servicer shall be
deemed to have received proper instructions with respect to the Receivable Files
upon its receipt of written instructions signed by a Trustee Officer.
SECTION 8.6. Custodian's Indemnification. The Servicer as custodian
shall indemnify the Trustee (which shall include for purposes of this section it
directors, officers, employees and agents) for any and all liabilities,
obligations, losses, compensatory damages, payments, costs or expenses of any
kind whatsoever that may be imposed on, incurred or asserted against the Trustee
as the result of any improper act or omission in any way relating to the
maintenance and custody by the Servicer as custodian of the Receivable Files;
provided, however, that the Servicer shall not be liable for any portion of any
such amount resulting from the willful misfeasance, bad faith or negligence of
the Trustee. This indemnity shall survive the termination of this Agreement and
the resignation and removal of the Trustee.
SECTION 8.7. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cutoff Date and shall
continue in full force and effect until terminated pursuant to this Section 8.7.
If CITSF shall resign as Servicer or if all the rights and obligations of the
Servicer shall have been terminated under Section 14.1, the appointment of the
Servicer as custodian may be terminated by the Surety Bond Issuer, in the same
manner as the Surety Bond Issuer may terminate the rights and obligations of the
Servicer under Section 14.1. The Trustee shall, if required by the Surety Bond
Issuer following the occurrence and during the continuation of an Event of
Default or the Trustee, on behalf of the Trust, may terminate the Servicer's
appointment as custodian, with cause or as required by law at any time upon
written notification to the Servicer. As soon as practicable after any
termination of such appointment, the Servicer shall deliver the Receivable Files
to the Trustee or the Trustee's agent at such place or places as the Trustee may
reasonably designate.
ARTICLE IX
SECTION 9.1. Duties of Servicer. The Servicer shall manage, service,
administer and make collections on the Receivables (other than Purchased
Receivables) with reasonable care, using that degree of skill and attention that
the Servicer exercises with respect to all comparable receivables that it
services for itself or others. The Servicer's duties shall include collection
and posting of all payments, responding to inquiries of Obligors on such
Receivables, investigating delinquencies, sending payment statements to
Obligors, reporting tax information to Obligors, accounting for collections and
furnishing monthly and annual statements to the Trustee with respect to
distributions. The Servicer shall follow its customary standards, policies and
procedures in performing its duties as Servicer. Without limiting the generality
of the foregoing, the Servicer is authorized and empowered by the Trustee to
execute and deliver, on behalf of itself, the Trust, the Certificateholders, or
the Trustee or any of them, any and all instruments of satisfaction or
cancellation, or partial or full release or discharge, and all other comparable
instruments, with respect to such Receivables or to the Boats securing such
Receivables. If the Servicer shall commence a legal proceeding to enforce a
Receivable, the Trustee (in the case of a Receivable other than a Purchased
Receivable) shall thereupon be deemed to have automatically assigned, solely for
the purpose of collection on behalf of the party retaining an interest in such
Receivable, such Receivable to the Servicer. If in any enforcement suit or legal
proceeding it shall be held that the Servicer may not enforce a Receivable on
the ground that it shall not be a real party in interest or a holder entitled to
enforce the Receivable, the Trustee shall, at the Servicer's expense and
direction, take steps to enforce the Receivable, including bringing suit in its
name or the name of the Certificateholders or the Surety Bond Issuer. To enable
the Servicer to carry out its servicing and administrative duties hereunder, the
Trustee hereby irrevocably appoints the Servicer as its attorney-in-fact, such
appointment being coupled with an interest, to execute on its behalf such
documents or instruments as are necessary to accomplish the foregoing.
SECTION 9.2. Collection of Receivables Payments. The Servicer shall
make reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become due and shall
follow such collection procedures as it follows with respect to all comparable
receivables that it services for itself or others. The Servicer may grant
extensions, rebates or adjustments on a Receivable subject to the provisions of
Section 9.6. The Servicer may in its discretion waive any late payment charge or
any other fees that may be collected in the ordinary course of servicing a
Receivable.
SECTION 9.3. Realization Upon Receivables. On behalf of the Trust, the
Servicer shall use its best efforts, consistent with its customary servicing
procedures, to repossess or otherwise convert the ownership of the Boat securing
any Receivable as to which the Servicer shall have determined eventual payment
in full is unlikely. The Servicer shall follow such customary and usual
practices and procedures as it shall deem necessary or advisable in its
servicing of marine receivables, which may include reasonable efforts to realize
upon any recourse to Dealers and selling the Boat at public or private sale. The
foregoing shall be subject to the provision that, in
any case in which the Boat shall have suffered damage, the Servicer shall not
expend funds in connection with the repair or the repossession of such Boat
unless it shall determine in its discretion that such repair and/or repossession
will increase the related Liquidation Proceeds by an amount greater than the
amount of such expenses.
SECTION 9.4. Physical Damage Insurance. The Servicer, in accordance
with its customary servicing procedures, shall require that each Obligor shall
have obtained physical damage insurance covering the related Boat as of the date
of execution of the related Receivable.
SECTION 9.5. Maintenance of Security Interests in Boats. The Servicer
shall, in accordance with its customary servicing procedures, take such steps as
are necessary to maintain perfection of CITSF's security interest created by
each Receivable in the related Boat. The Trustee, on behalf of the Trust, hereby
authorizes the Servicer to take such steps as are necessary to perfect such
security interest on behalf of the Trust in the event of the relocation of a
Boat or for any other reason.
SECTION 9.6. Covenants of Servicer. The Servicer shall make within the
required time periods under the UCC all filings necessary in any jurisdiction to
give the Trustee a first priority perfected ownership interest in the
Receivables. The Servicer shall not release the Boat securing each Receivable
from the security interest granted by such Receivable in whole or in part except
in the event of payment in full by the Obligor thereunder. The Servicer shall
not impair the rights of the Certificateholders in any Receivable. The Servicer
shall make reasonable efforts to collect all payments called for under the terms
and provisions of the Receivables as and when the same shall become due and
shall follow such collection procedures as it follows with respect to all
comparable marine receivables that it services for itself and others. The
Servicer shall not sell, pledge, transfer, deliver or otherwise dispose of any
Receivable, except as provided in this Agreement. The Servicer will not increase
or decrease the number or amount of any Scheduled Payment, or the Principal
Balance of a Receivable (except with respect to a prepayment of a Scheduled
Payment that does not result in a deferral of any other Scheduled Payment) or
the APR of a Receivable, or extend, rewrite or otherwise modify the payment
terms of a Receivable; provided, however, that the Servicer may extend a
Receivable for credit related reasons that would be acceptable to the Servicer
with respect to comparable marine receivables that it services for itself and
others and in accordance with its customary standards, policies and procedures
if the cumulative extensions with respect to any Receivable shall not cause the
term of such Receivable to extend beyond the last day of the Collection Period
which is related to the Final Scheduled Distribution Date; provided, further,
that such extensions will not be made if, in the reasonable opinion of the
Servicer, the extensions would modify the terms of such Receivable in such a
manner as to constitute a cancellation of such Receivable and the creation of a
new receivable for federal income tax purposes. In the event that the Servicer
fails to comply with the provisions of the preceding sentence or with respect to
the second proviso of the preceding sentence, notwithstanding having acted
according to its reasonable opinion, or if there is a final determination that
the Servicer has modified the terms of a Receivable in such a manner as to
constitute a cancellation of such Receivable and the creation of a new
Receivable for federal income tax purposes, the Servicer shall be required to
purchase the Receivable or Receivables
affected thereby, for the Purchase Amount, in the manner specified in Section
9.7 as of the first day of the Collection Period following the Collection Period
in which such failure occurs.
SECTION 9.7. Purchase of Receivables Upon Breach. The Servicer or the
Trustee shall inform the other party promptly, in writing, upon the discovery
(or, in the case of the Trustee, receipt of written notice by a Trust Officer)
of any breach pursuant to Section 9.6 or Section 9.15. Notice of any breach
pursuant to Section 9.6 or Section 9.15 may be given to the Servicer and the
Trustee by the Surety Bond Issuer. Unless the breach shall have been cured by
the second Record Date following such discovery (or, at the Servicer's election,
the first following Record Date), the Servicer shall purchase any Receivable (or
in the case of any representation and warranty set forth in clause (xiv) of
Section 9.15, the Servicer shall purchase Receivables such that, after giving
effect to such purchase, such representation and warranty would be complied
with), which as a result of such breach would materially and adversely affect
the interests of the Certificateholders or the Surety Bond Issuer, as of such
Record Date. In consideration of the purchase of such Receivable, the Servicer
shall remit the Purchase Amount in the manner specified in Section 10.4 on the
Deposit Date. The sole remedy of the Trustee, the Trust or the
Certificateholders with respect to a breach pursuant to Section 9.6 or Section
9.15 shall be to require the Servicer to repurchase Receivables pursuant to this
Section 9.7.
SECTION 9.8. Servicing Fee. The Servicing Fee for a Collection Period
shall equal the product of one twelfth times the Servicing Fee Rate times the
Initial Pool Balance, in the case of the initial Collection Period, and
thereafter, the Pool Balance as of the last day of the prior Collection Period
(except that in the case of a successor Servicer, the Servicing Fee shall equal
such amount as is arranged in accordance with Section 14.2). The Servicer shall
also be entitled to all late payment and extension fees, prepayment charges and
other administrative fees or similar charges allowed by applicable law with
respect to Receivables, collected (from whatever source) on the Receivables;
provided, however, such late payment and other fees shall not form a part of the
Servicing Fee and the Servicer shall be entitled to such fees as and when
collected.
SECTION 9.9. Servicer's Certificate. On or before 10:00 a.m. New York
time on the Determination Date, the Servicer shall deliver to the Trustee and
the Surety Bond Provider a Servicer's Certificate, containing all information
necessary to make the transfers and distributions pursuant to Section 10.5 for
the Collection Period immediately preceding the date of such Servicer's
Certificate. If on any Deposit Date there is a default by the Depositor or the
Servicer in respect of any Purchase Amounts to be deposited into the Collection
Account pursuant to Section 10.4, the Servicer shall recalculate all of the
amounts described in the Servicer's Certificate to reflect such default and
deliver to the Trustee a revised Servicer's Certificate reflecting such
recalculations on such Deposit Date.
SECTION 9.10. Annual Statement as to Compliance; Notice of Default. (a)
The Servicer shall deliver to the Trustee and the Surety Bond Issuer, on or
before March 31 of each year, beginning March 31, ____, an Officer's
Certificate, dated as of December 31 of the preceding year, stating that (i) a
review of the activities of the Servicer during the preceding 12-month period
(or such shorter period from the date of initial issuance of the Certificates to
December 31 of such year) and of its performance under this Agreement has 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 year (or such shorter period, as the case may be), 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. A copy of
such certificate and the report referred to in Section 9.11 may be obtained by
any Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Office.
(b) The Servicer shall deliver to the Trustee and the Surety Bond
Issuer promptly after having obtained knowledge thereof, but in no event later
than 5 Business Days thereafter, written notice in an Officer's Certificate of
any event which with the giving of notice or lapse of time, or both, would
become an Event of Default under clause (i) or (ii) of Section 14.1. The
Depositor shall deliver to the Trustee and the Surety Bond Issuer promptly after
having obtained knowledge thereof, but in no event later than 5 Business Days
thereafter, written notice in an Officer's Certificate of any event which with
the giving of notice or lapse of time, or both, would become an Event of Default
under clause (ii) of Section 14.1.
SECTION 9.11. Annual Independent Certified Public Accountant's Report.
The Servicer shall cause a firm of independent certified public accountants (who
may also render other services to the Servicer and the Depositor) to deliver to
the Trustee on or before March 31 of each year commencing March 31, ____, a
report to the effect that such firm has conducted an examination, substantially
in compliance with attestation standards established by the American Institute
of Certified Public Accountants, of certain documents and records relating to
the servicing procedures under this Agreement and that, on the basis of such
examination, such firm is of the opinion that such servicing was conducted in
compliance with the sections of this Agreement with which independent public
accountants generally possess adequate professional knowledge and which are
reasonably subject to positive assurance by them, except for such exceptions as
they believe to be immaterial and such other exceptions as shall be set forth in
such report. In the event such firm requires Trustee to agree to the procedures
performed by such firm, Servicer shall direct Trustee in writing to so agree; it
being understood and agreed that Trustee will deliver such letter of agreement
in conclusive reliance upon the direction of Servicer, and Trustee makes no
independent inquiry or investigation as to, and shall have no obligation or
liability in respect of, the sufficiency, validity or correctness of such
procedures.
SECTION 9.12. Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to the Certificateholders access to the
Receivables Files in such cases where the Certificateholder shall be required by
applicable statutes or regulations to review such documentation. Access shall be
afforded without charge, but only upon reasonable request and during the normal
business hours at the respective offices of the Servicer. Nothing in this
Section 9.12 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 9.12.
SECTION 9.13. Servicer Expenses. The Servicer shall be required to pay
all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of
independent accountants, taxes imposed on the Servicer and expenses incurred in
connection with distributions and reports to Certificateholders.
SECTION 9.14. Appointment of Sub-servicer. The Servicer may at any time
appoint a sub-servicer to perform all or any portion of its obligations as
Servicer hereunder; provided however, that the Servicer shall remain obligated
and be liable to the Trustee and the Certificateholders for the servicing and
administering of the Receivables in accordance with the provisions hereof
without diminution of such obligation and liability by virtue of the appointment
of such sub-servicer and to the same extent and under the same terms and
conditions as if the Servicer alone were servicing and administering the
Receivables. The fees and expenses of the sub-servicer shall be as agreed
between the Servicer and its sub-servicer from time to time and neither the
Trust, the Trustee nor the Certificateholders shall have any responsibility
therefor.
SECTION 9.15. Representations and Warranties of Servicer with respect
to the Receivables. The Servicer does hereby make the following representations
and warranties on which the Trustee on behalf of the Trust, relies in accepting
the Receivables pursuant to this Agreement and executing and authenticating the
Certificates. Such representations and warranties speak as of the Closing Date,
but shall survive the sale, transfer and assignment of the Receivables to the
Trustee on behalf of the Trust and any termination of the Servicer pursuant to
Section 14.1.
(i) Characteristics of Receivables. Each Receivable (a) shall
be denominated in U.S. dollars, (b) shall have an original maturity of
not more than 180 months, (c) as of the Cutoff Date, shall have a
remaining maturity of not more than 180 months, (d) shall contain
customary and enforceable provisions such that the rights and remedies
of the holder thereof shall be adequate for realization against the
collateral of the benefits of the security, (e) shall be kept at the
offices of CITSF at [address], (f) shall be adequate for realization
against the collateral of the benefits of the security, (g) shall
provide for level monthly payments (provided that the payment in the
first or last month in the life of the Receivable may be minimally
different from the level payment) that fully amortize the Amount
Financed by maturity and yield interest at the Annual Percentage Rate,
and (h) shall provide for , in the event that such contract is prepaid,
a prepayment that fully pays the Principal Balance and includes accrued
but unpaid interest due through the date of prepayment in an amount at
least equal to the Annual Percentage Rate.
(ii) Schedule of Receivables. The information set forth in
Schedule B shall be true and correct in all material respects as of the
close of business on the Cutoff Date, and no selection procedures
believed to be adverse to the Certificateholders shall have been
utilized in selecting the Receivables.
(iii) No Government Obligor. None of the Receivables shall be
due from the United States of America or any State or local government
or from any agency, department or instrumentality of the United States
of America, any State or local government.
(iv) Receivables in Force. No Receivable shall have been
satisfied, subordinated or rescinded, nor shall any Boat have been
released from the security interests granted by the related Receivable
in whole or in part.
(v) No Waiver. No provision of a Receivable shall have been
waived.
(vi) No Defenses. Immediately following the conveyance of the
Receivables to the Trust, except for the security interests in favor of
the Depositor and the Trustee, the Receivables are free and clear of
all security interests, liens, charges, and encumbrances and to the
best knowledge of the Servicer no right of rescission, setoff,
counterclaim or defense shall have been asserted or threatened with
respect to any Receivable.
(vii) No Liens. No liens or claims shall have been filed for
work, labor or materials relating to a Boat that shall be liens prior
to, or equal to the security interest in the Boat granted by the
Receivable.
(viii) Insurance. The Obligor has obtained physical damage
insurance covering the Boat and the Obligor is required under the terms
of the Receivable to maintain such insurance.
(ix) Lawful Assignment. No Receivable shall have been
originated in, or shall be subject to the laws of any jurisdiction
under which the sale, transfer and assignment of such Receivable
pursuant to transfers of the Certificates shall be unlawful, void or
voidable.
(x) Security Interest. Upon the Receivables being conveyed to
the Trust, the Trust shall have a perfected security interest under the
UCC in the Receivables.
(xi) Ship Mortgage Act. No Boat related to any Receivable
shall be required to be documented under the Ship Mortgage.
(xii) Compliance with Law. Each Receivable complies in all
material respects with all requirements of applicable Federal, State,
and local laws and regulations thereunder, including, without
limitation, usury laws, the Federal Truth-in-Lending Act, the Equal
Credit Opportunity Act, the Federal Trade Commission Act, the Fair
Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal
Trade Commission Credit Practices Rule, State unfair and deceptive
trade practice laws, and State adaptations of the National Consumer Act
and of the Uniform Consumer Credit Code, and any other applicable
consumer credit, equal credit opportunity and disclosure laws.
(xiii) Title. Immediately upon the sale and assignment of the
Receivables to the Trust, the Trustee for the benefit of the
Certificateholders and the Surety Bond Issuer shall have good and
marketable title to each Receivable, free and clear of all Liens,
encumbrances, security interests and rights of others; and the sale and
assignment has been perfected under the UCC.
(xiv) As of the Cutoff Date, not more than (a) approximately
____% of the number of Receivables, constituting approximately ____% of
the Initial Pool Balance are related to Boats which have been
repossessed by the Servicer, (b) approximately ____% of the number of
Receivables, constituting approximately ____% of the Initial Pool
Balance are 30 to 59 days delinquent, (c) approximately ____% of the
number of Receivables, constituting approximately ____% of the Initial
Pool Balance are related to Boats which are 60 to 89 days delinquent
and (d) approximately ____% of the number of Receivables, constituting
approximately ____% of the Initial Pool Balance are related to Boats
which are 90 or more days delinquent.
(xv) Each Receivable creates a first priority perfected
security interest in the Boat financed thereby in favor of CITSF(other
than in the case of boat motors subject to certificate of title
statutes that provide for perfection of the security interests in such
boat motors by the filing of a UCC-1 financing statement).
(xvi) To the best of the Servicer's knowledge, no Liens or
claims are pending or threatened with respect to a Boat which may be or
become prior to or equal with the Lien of the related Receivable.
ARTICLE X
SECTION 10.1. Accounts. (a) The Servicer shall establish and maintain
the Collection Account and the Certificate Account in the name of the Trustee
for the benefit of the Certificateholders and, to the extent herein provided,
for the benefit of the Surety Bond Issuer. The Collection Account shall be a
segregated, non-interest-bearing trust account initially established with the
Trustee and maintained with the Trustee so long as (i) the deposits of the
Trustee have the Required Deposit Rating or (ii) the Collection Account is
maintained as a fully segregated trust account. All amounts held in the
Collection Account (other than Purchase Amounts) shall be invested in Permitted
Investments by the Trustee, at the written direction of the Servicer, in each
case such investments maturing not later than the Deposit Date following the
Collection Period in which such amounts are so invested. Purchase Amounts
deposited on a Deposit Date shall not be invested. Such written direction shall
certify that any such investment is authorized by this Section 14.1 and complies
with the requirements of Permitted Investments as set forth in Schedule C. The
Certificate Account shall be a segregated, non-interest-bearing trust account
initially established with the Trustee and maintained with the Trustee for so
long as (x) the deposits of the Trustee have the Required Deposit Rating or (y)
the Certificate Account is maintained as a fully segregated trust account. The
amounts in the Certificate Account shall not be invested. Should the deposits of
the Trustee no longer have the Required Deposit Rating and the Collection
Account or the Certificate Account, as applicable, shall not be maintained as a
fully segregated trust account, then the Servicer shall, with the Trustee's
assistance as necessary, cause the Certificate Account and/or the Collection
Account to be moved, within 60 days after
the occurrence of the later of the loss of the Required Deposit Rating or the
cessation of such accounts being maintained as fully segregated trust accounts,
to a bank or trust company organized under the laws of the United States of any
state thereof, the deposits of which shall have the Required Deposit Rating.
(b) (i) The Depositor shall establish the Reserve Account in
the name of the Collateral Agent which shall be pledged to the Trustee
for the benefit of the Certificateholders and the Surety Bond Issuer.
The Reserve Account shall be a segregated, non-interest-bearing trust
account initially established and maintained with the Trustee for so
long as (x) the deposits of the Trustee have the Required Deposit
Rating or (y) the Reserve Account is maintained as a fully segregated
trust account. The Reserve Account shall not be property of the Trust.
All amounts held in the Reserve Account shall be invested in Permitted
Investments by the Collateral Agent, at the written direction of the
Depositor, in each case such investments maturing not later than the
Deposit Date following the Collection Period in which such amounts are
so invested. Such written direction shall certify that any such
investment is authorized by this Section 10.1 and comply with the
requirements of Permitted Investments as set forth in Schedule C.
Should the deposits of the Collateral Agent no longer have the Required
Deposit Rating or the Reserve Account shall not be maintained as a
fully segregated trust account, then the Depositor shall, with the
Collateral Agent's assistance as necessary, cause the Reserve Account
to be moved, within 60 days after the occurrence of the later of the
loss of the Required Deposit Rating or the cessation of such accounts
being maintained as fully segregated trust accounts, to a bank or trust
company organized under the laws of the United States or any state
thereof, the deposits of which shall have the Required Deposit Rating.
(ii) On the date of the issuance of the Certificates, the
Depositor shall cause the Reserve Account Initial Deposit to be
deposited into the Reserve Account. The Depositor hereby grants to the
Collateral Agent for the benefit of the Certificateholders and the
Surety Bond Issuer a security interest in and to the Reserve Account
and any and all Account Property credited thereto from time to time,
including, but not limited to, Permitted Investments, to secure payment
of the Certificates according to their terms. Amounts held from time to
time in the Reserve Account will continue to be held by the Collateral
Agent for the benefit of the Certificateholders and the Surety Bond
Issuer, but the Reserve Account shall not be an asset of the Trust.
Funds held in the Reserve Account shall be remitted to the Depositor
upon the Depositor's written request upon the termination of the Trust.
By acceptance of their Certificates or interest therein and by
execution and delivery of the Reimbursement Agreement by the Surety
Bond Issuer, the Certificateholders and Certificate Owners and the
Surety Bond Issuer, respectively, shall be deemed to have appointed [ ]
as Collateral Agent. [ ] hereby accepts such appointment as Collateral
Agent.
(iii) With respect to the Account Property in respect of the
Reserve Account, the Collateral Agent agrees that:
A. any Account Property that is held in deposit
accounts shall be held solely in a bank with the Required
Deposit Rating; and each such bank with the Required Deposit
Rating shall be subject to the exclusive custody and control
of the Collateral Agent, and the Collateral Agent shall have
sole signature authority with respect thereto;
B. any Account Property that constitutes Physical
Property shall be delivered to the Collateral Agent in
accordance with paragraph (a) of the definition of "Delivery"
and shall be held, pending maturity or disposition, solely by
the Collateral Agent, or a financial intermediary (as such
term is defined in Section 8-313(4) of the Relevant UCC)
acting solely for the benefit of the Certificateholders;
C. any Account Property that is a book-entry security
held through the Federal Reserve System pursuant to Federal
book-entry regulations shall be delivered to the Collateral
Agent in accordance with paragraph (b) of the definition of
"Delivery" and shall be maintained by the Collateral Agent,
pending maturity or disposition, through continued book-entry
registration of such Account Property as described in such
paragraph; and
D. any Account Property that is an "uncertificated
security" under Article 8 of the Relevant UCC and that is not
governed by clause (C) above shall be delivered to the
Collateral Agent in accordance with paragraph (c) of the
definition of "Delivery" and shall be maintained by the
Collateral Agent, pending maturity or disposition, through
continued registration of the Collateral Agent's (or its
nominee's) ownership of such security.
Effective upon Delivery of any Account Property in the form of
Physical Property, book-entry securities or uncertificated securities,
the Collateral Agent shall be deemed to have purchased such Account
Property for value, in good faith and without notice of any adverse
claim thereto.
(iv) The Depositor and the Servicer agree to take or cause to
be taken such further actions, to execute, deliver and file or cause to
be executed, delivered and filed such further documents and instruments
(including, without limitation, any financing statements under the
Relevant UCC or this Agreement) as may be determined to be necessary,
in order to perfect the interests created by this Section 10.1(b) and
otherwise effectuate the purposes, terms and conditions of this Section
14.1(b).
SECTION 10.2. Collections. The Servicer shall remit to the Collection
Account within two Business Days after receipt thereof all Collections, any
amounts referred to in clauses (ii) and (iv) of the definition of Available
Funds, each as collected during the Collection Period; provided, however, that
so long as CITSF is acting as the Servicer, the Servicer shall be permitted to
make remittances of Collections, any amounts referred to in clause (ii) of the
definition of Available Funds and Liquidation Proceeds to the Collection Account
in next-day
funds or immediately available funds by 12:30 p.m. New York City time on the
Deposit Date immediately following such Collection Period if the specific terms
and conditions set forth below in this Section 10.2 are satisfied and only for
so long as such terms and conditions are satisfied:
(i) the Servicer shall be CITSF or any other Successor
Servicer pursuant to Section 13.3;
(ii) there exists no Event of Default (as described below);
(iii) if the Servicer does not have a short term debt rating
or deposit rating, as applicable, of at least A-1 from S&P and P-1 from
▇▇▇▇▇'▇, a guaranty, letter of credit, surety bond or other similar
instrument is issued covering Collections, any amounts referred to in
clause (ii) of the definition of Available Funds and Liquidation
Proceeds held by CITSF or its successor, which is acceptable to the
Rating Agencies and the Surety Bond Issuer and issued by an entity,
which has a short-term debt or deposit rating, as applicable, of at
least A-1 from S&P and P-1 from ▇▇▇▇▇'▇; and
(iv) the Servicer, the Trustee, the Depositor and the Surety
Bond Issuer shall not have received any notice from S&P or ▇▇▇▇▇'▇ that
failure to deposit such funds more frequently will result in a
reduction or withdrawal of the then current rating on the Certificates
by either S&P or ▇▇▇▇▇'▇.
The Trustee shall not be deemed to have knowledge of any event or
circumstance under clause (ii) above that would require remittance by the
Servicer of Collections and Liquidations Proceeds to the Collection Account two
Business Days after receipt thereof unless the Trustee has received notice of
such event or circumstance from the Depositor, the Servicer or the Surety Bond
Issuer in an Officer's Certificate or from the Holders of Certificates
evidencing not less than 25% of the Certificate Balance.
SECTION 10.3. Application of Collections. As of each Determination
Date, all Collections for the related Collection Period shall be applied first
to late payment and extension fees, second to interest accrued on the
Receivable, third to principal due on the Receivable during the related
Collection Period, fourth to insurance premiums or amounts due on loans to the
Obligors to finance the payment of insurance premiums for collateral protection
insurance purchased by the Servicer, and fifth to administrative charges, if
any. Last, any excess shall be applied to prepay the Principal Balance of the
Receivable.
SECTION 10.4. Additional Deposits. (a) The Servicer and/or the
Depositor shall deposit in the Collection Account the aggregate Purchase Amount
with respect to Purchased Receivables and the Servicer shall deposit therein all
amounts to be paid under Section 8.2, 13.7 and 20.2. All such deposits shall be
made in immediately available funds by 12:30 p.m. New York City Time on the
Deposit Date relating to the Collection Period during which such repurchase,
purchase or other obligation arose. The Trustee shall deposit in the Certificate
Account the aggregate of any amounts received from the Surety Bond Issuer
pursuant to Section 10.5(a)(iii) on the date of receipt thereof.
(b) If the Servicer shall be required pursuant to Section 10.2 to remit
Collections to the Collection Account two Business Days after receipt rather
than on a monthly basis, then, if the Servicer is CITSF or an affiliate thereof
is the servicer it may remit payments collected on Unsold Contracts as well as
payments collected on Receivables and Liquidation Proceeds to the Collection
Account. Upon receipt of an Officer's Certificate of the Servicer identifying
the amount of funds in the Collection Account representing Collections
attributable to Unsold Contracts, the Trustee shall transfer such funds in
accordance with the instructions contained in such Officer's Certificate.
SECTION 10.5. Distributions.
(a) (i) On each Deposit Date, the Trustee shall transfer all
amounts on deposit in the Collection Account to the Certificate
Account, in immediately available funds, less any funds identified in
an Officer's Certificate of the Servicer as proceeds (x) of Unsold
Contracts and (y) of Collections on the Receivables allocable to late
payment and extension fees, and administrative charges, provided,
however, that in the event that the Servicer is required to make
deposits to the Collection Account two Business Days after receipt
pursuant to Section 10.2, the amount of Available Funds transferred
from the Collection Account to the Certificate Account will include
only those funds that were deposited into the Collection Account in the
Collection Period relating to such Distribution Date. The amount of the
transfer from the Collection Account to the Certificate Account shall
be set forth in the Servicer's Certificate for such Distribution Date.
(ii) On each Deposit Date, the Trustee shall transfer from the
Reserve Account to the Certificate Account an amount equal to the
lesser of (x) the amount on deposit in the Reserve Account and (y) an
amount equal to the shortfall, if any, between, (A) Available Funds for
such Collection Period and (B) the sum of (1) the Monthly Interest
Payment and any Carry-Over Monthly Interest, (2) the Servicing Fee and
any Carry-Over Servicing Fee to be distributed to the Servicer pursuant
to Section 10.5(b)(ii) and (3) the Monthly Principal Payment and any
Carry-Over Monthly Principal Payment, each for the related Distribution
Date (collectively "Priority Distributions") (the amount transferred
pursuant to this clause (ii) is the "Reserve Account Withdrawal Amount"
for such Deposit Date).
The Reserve Account Withdrawal Amount shall be set forth in
the Servicer's Certificate with respect to each Distribution Date.
(iii) If on any Determination Date the Servicer has reported
to the Trustee in the Servicer's Certificate that the Servicer has
determined that Available Funds for the related Distribution Date
together with any Reserve Account Withdrawal Amount for such
Distribution Date are insufficient to provide for the Priority
Distribution on such Distribution Date (the amount of such
insufficiency is referred to as the "Surety Drawing Amount" for such
Distribution Date, then, after receipt of such Servicer's Certificate,
the
Trustee shall promptly (and in any event not later than 2:00 p.m. on
the second Business Day prior to the Distribution Date) deliver a
completed demand for payment under the Surety Bond to the Surety Bond
Issuer requesting payment in an amount equal to the Surety Drawing
Amount for such Distribution Date. The Surety Bond Issuer shall pay or
cause to be paid the amount of such demand for payment to the Trustee
for credit to the Certificate Account no later than the later of 11:00
a.m. on the related Deposit Date and the second Business Day after the
Surety Bond Issuer receives a demand for payment.
(b) On each Distribution Date, as set forth in the Servicer's
Certificate for such Distribution Date, the Trustee will make the following
distributions from the Certificate Account in the following order of priority:
(i) to the Certificateholders of record as of the related
Record Date, the Monthly Interest Payment and any Carry-Over Monthly
Interest;
(ii) if the Servicer is not CITSF or an affiliate thereof, to
the Servicer, the Servicing Fee and any Carry-Over Servicing Fee;
(iii) to the Certificateholders of record as of the related
Record Date, the Monthly Principal Payment and any Carry-Over Monthly
Principal;
(iv) if CITSF or an affiliate thereof is the Servicer, to the
Servicer, the Servicing Fee and any Carry-Over Servicing Fee;
(v) to the Surety Bond Issuer, any amounts owing to the Surety
Bond Issuer hereunder and pursuant to the Reimbursement Agreement and
not paid;
(vi) to the Collateral Agent, an amount up to the Specified
Reserve Account Requirement for deposit into the Reserve Account; and
(vii) to the Depositor, any remaining amounts.
(c) On each Distribution Date as set forth in the Servicer's
Certificate for such Distribution Date, the Trustee shall withdraw from the
Reserve Account and distribute to the Depositor an amount equal to the excess,
if any, of the (x) amount on deposit in the Reserve Account over (y) the
Specified Reserve Account Requirement.
Distributions to Certificateholders, except in the case of
distributions under Section 16.1, shall be made by check mailed by the Trustee
to each Certificateholder's respective address of record on the Certificate
Register (or, where a Clearing Agency is the Certificateholder, by delivery of
immediately available funds) and distributions to the Servicer, the Surety Bond
Issuer, the Collateral Agent or the Depositor shall be made by wire transfer of
immediately available funds.
SECTION 10.6. Net Deposits. For so long as the Servicer shall be
entitled pursuant to Section 10.2 to remit Collections on a monthly basis rather
than more frequently, the Servicer may make the remittances pursuant to Sections
14.2 and 14.4 above net of amounts to be distributed to the Servicer pursuant to
Section 10.5(b). Nonetheless, the Servicer shall account for all the above
described remittances and distributions in the Servicer's Certificate as if the
amounts were deposited and/or transferred separately.
SECTION 10.7. Statements to Certificateholders. (a) On each
Distribution Date, the Servicer shall provide to the Trustee the Statement to
Certificateholders, setting forth for the Collection Period relating to such
Distribution Date the following information (stated in the case of items (I),
(ii) and (iii), on the basis of $1,000 initial principal amount) as of such
Distribution Date a copy of which shall be forwarded by the Trustee to each
Certificateholder on such Distribution Date:
(i) The amount of the Certificateholder's distribution which
constitutes the Monthly Principal Payment (including any Carry-Over
Monthly Principal);
(ii) The amount of the Certificateholder's distribution which
constitutes the Monthly Interest Payment (including any Carry-Over
Monthly Interest);
(iii) The Certificateholder's pro rata portion of the
Servicing Fee (including any Carry-Over Servicing Fee);
(iv) The Certificate Balance and the Certificate Factor as of
the close of business on such Distribution Date; and
(v) The Pool Balance as of the last day of the Collection
Period.
(b) Within the prescribed period of time for tax reporting purposes
after the end of each calendar year during the term of this Agreement, the
Trustee shall mail, to each Person who at any time during such calendar year
shall have been a Certificateholder, a statement containing the sum of the
amounts determined in each of clauses (i) and (ii), for such calendar year or,
in the event such Person shall have been a Certificateholder during a portion of
such calendar year, for the applicable portion of such year.
ARTICLE XI
SECTION 11.1. The Certificates. The Certificates shall be issued in
book-entry form in minimum denominations representing $1,000 of initial
principal balance of the Receivables and in integral multiples thereof;
provided, however, that one Certificate may be issued in a denomination that
includes any residual amount and that such Certificate shall be retained by the
Depositor (the "Residual Certificate"). The Certificates shall be executed by
the Trustee on behalf of the Trust solely in its capacity as Trustee by manual
or facsimile signature of a Trustee Officer. 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 such Certificates.
SECTION 11.2. Authentication of Certificates. The Trustee shall cause
the Certificates to be executed on behalf of the Trust, authenticated and
delivered to or upon the written order of the Depositor, signed by the
Depositor's chairman of the board, the president, any vice chairman of the
board, any vice president, the treasurer, any assistant treasurer or the
controller of the Depositor, without further corporate action by the Depositor,
in authorized denominations, pursuant to this Agreement. 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 B executed by the
Trustee 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 11.3. 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 11.7, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Trustee shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee shall be the initial Certificate
Registrar.
(b) Upon surrender for registration of transfer of any Certificate at
the Corporate Trust Office, the Trustee shall execute, 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 Trustee. At the option of a Holder, Certificates
may be exchanged for other Certificates of authorized denominations of a like
aggregate amount upon surrender of the Certificates to be exchanged at the
Corporate Trust Office.
(c) 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 Trustee and the Certificate Registrar duly executed by
the Holder or his attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer and exchange shall be canceled and
subsequently disposed of by the Trustee.
(d) No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Trustee 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 11.4. Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar, or
if the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there
shall be delivered to the Certificate Registrar or the Trustee such security or
indemnity as may be required by them to save each of them harmless, then in the
absence of notice that such Certificate shall have been acquired by a bona fide
purchaser, the Trustee on behalf of the Trust shall execute and the Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and denomination. In connection with the issuance of any new Certificate
under this Section 11.4, the Trustee and the Certificate Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section 11.4 shall Constitute conclusive evidence of ownership
in the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 11.5. Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Trustee or the Certificate
Registrar may treat the Person in whose name any Certificate shall be registered
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 10.5 and for all other purposes whatsoever, and neither the
Trustee nor the Certificate Registrar shall be bound by any notice to the
contrary.
SECTION 11.6. Access to List of Certificateholders Names and Addresses.
At such time as the Certificates exist as Definitive Certificates, the Trustee
shall furnish or cause to be furnished to the Servicer and the Surety Bond
Issuer, within 15 days after receipt by the Trustee of a request therefor from
the Servicer or the Surety Bond Issuer in writing, a list, of the names and
addresses of the Certificateholders as of the most recent Record Date. If three
or more Certificateholders, or one or more Holders of Certificates aggregating
not less than 25% of the Certificate Balance, apply in writing to the Trustee,
and such application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and such application shall be accompanied by a copy of the
communication that such applicants propose to transmit, then the Trustee shall
promptly 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
to hold neither the Servicer nor the Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 11.7. Maintenance of Office or Agency. The 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 Trustee in
respect of the Certificates and this Agreement may be served. The Trustee
initially designates the Corporate Trust Office as specified in this Agreement
as its office for such purposes. The Trustee shall give prompt written notice to
the Servicer and to Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
SECTION 11.8. Book-Entry Certificates. The Certificates, upon original
issuance (except for the Residual Certificate), will be issued in the form of
one or more global Certificates
registered in the name of the nominee of The Depository Trust Company, the
initial Clearing Agency, by or on behalf of the Depositor. The Certificates
delivered to The Depository Trust Company shall initially be registered on the
Certificate Register in the name of CEDE & CO., the nominee of the initial
Clearing Agency, and no Certificate Owner will receive a physical certificate
representing such Certificate Owner's interest in the Certificates, except as
provided in Section 11.10. Unless and until definitive, fully registered
Certificates (the "Definitive Certificates") have been issued to Certificate
Owners pursuant to Section 11.10:
(i) the provisions of this Section 11.8 shall be in full force
and effect;
(ii) the Depositor, the Servicer, the Certificate Registrar
and the Trustee may deal with the Clearing Agency for all purposes
(including the making of distributions on the Certificates) as the
authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 11.8
conflict with any other provisions of this Agreement, the provisions of
this Section 11.8 shall control;
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing
Agency and/or the Clearing Agency Participants. Pursuant to the
Depository Agreement, unless and until Definitive Certificates are
issued pursuant to Section 11.10, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit distributions of principal and interest on the
Certificates to such Clearing Agency Participants; and
(v) 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 Pool Balance the Clearing
Agency will take such actions with respect to specified percentages of
the Pool Balance only at the direction of and on behalf of Clearing
Agency Participants whose holdings include undivided interests that
satisfy such specified percentages. DTC may take conflicting actions
with respect to other undivided interests to the extent that such
actions are taken on behalf of Clearing Agency Participants whose
holdings include such undivided interests.
SECTION 11.9. Notices to Clearing Agency. Whenever notice or other
communication to the Certificateholders is required under this Agreement, other
than to the Holder of the Residual Certificate, unless and until Definitive
Certificates shall have been issued to Certificate Owners pursuant to Section
11.10, the Trustee and the Servicer shall give all such notices and
communications specified herein to be given to Holders of the Certificates to
the Clearing Agency.
SECTION 11.10. Definitive Certificates. If (i) the Depositor advises
the Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities as Depository with respect to the
Certificates and the Trustee or the Depositor is unable to locate a qualified
successor, (ii) the Depositor, at its option, elects to terminate the
book-entry system through the Clearing Agency, or (iii) after the occurrence of
an Event of Default, Certificate owners representing beneficial interests
aggregating not less than 51% of the Certificate Balance advise the Trustee and
the Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of the Certificate Owners, then the Trustee through the
Clearing Agency shall notify all Certificate Owners of the occurrence of any
such event and of the availability through the Clearing Agency of Definitive
Certificates. Upon surrender by the Clearing Agency of the global Certificates
representing the Certificates and instructions for re-registration, the Trustee
shall issue the Definitive Certificates and deliver such Definitive Certificates
in accordance with the instructions of the Clearing Agency. Neither the
Depositor, the Certificate Registrar nor the Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder. The Trustee shall not be liable if
the Trustee or the Depositor is unable to locate a qualified successor Clearing
Agency.
ARTICLE XII
SECTION 12.1. Representations of Depositor. The Depositor makes the
following representations on which the Trustee relies in accepting the
Receivables in trust and executing and authenticating the Certificates.
(i) Organization and Good Standing. The Depositor shall have
been duly organized and shall be 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 shall be currently owned and such business is presently
conducted, and had at all relevant times, and shall have, power,
authority and legal right to acquire and own the Receivables.
(ii) Due Qualification. The Depositor shall be duly qualified
to do business as a foreign corporation in good standing, and shall
have obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of property or the
conduct of its business shall require such qualifications.
(iii) Principal Place of Business. The Depositor's principal
place of business is located in the State of New Jersey.
(iv) Power and Authority. The Depositor shall have the power
and authority to execute and deliver this Agreement and to carry out
its terms; the Depositor shall have full power and authority to sell
and assign the property to be sold and assigned to and deposited with
the Trustee as part of the Trust and shall have duly authorized such
sale and assignment to the Trustee by all necessary corporate action;
and the execution, delivery and performance of this Agreement shall
have been duly authorized by the Depositor by all necessary corporate
action.
(v) Valid Sale; Binding Obligations. This Agreement shall
evidence (A) a valid sale, transfer and assignment of the Receivables,
enforceable against creditors of and purchasers from the Depositor, and
(B) a legal, valid and binding obligation of the Depositor enforceable
in accordance with its terms.
(vi) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
shall not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time
or both) a default under, the articles of incorporation or by-laws of
the Depositor, or any indenture, agreement or other instrument to which
the Depositor is a party or by which it shall be bound; nor 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 this Agreement); nor violate any law or, to the
best of the Depositor's knowledge, any order, rule or regulation
applicable to the Depositor of any court or of any Federal or State
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
(vii) No Proceedings. There are no proceedings or
investigations pending, or to the Depositor's best knowledge,
threatened, before any court, regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the
Depositor or its properties: (A) asserting the invalidity of this
Agreement or the Certificates; (B) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by this Agreement; (C) seeking any determination or ruling
that might materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or enforceability
of, this Agreement or the Certificates; or (D) relating to the
Depositor and which might adversely affect the Federal income tax
attributes of the Certificates.
(viii) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any governmental
body or official required in connection with the execution and delivery
by the Depositor of this Agreement, the Reimbursement Agreement and the
Certificates, the performance by the Depositor of the transactions
contemplated by this Agreement, the Reimbursement Agreement and the
Certificates, and the fulfillment by the Depositor of the terms hereof,
have been obtained; provided, however, that the Depositor makes no
representation or warranty regarding State securities or "blue sky"
laws in connection with the distribution of the Certificates.
SECTION 12.2. Liability of Depositor; Indemnities. The Depositor shall
be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Depositor under this Agreement:
(i) The Depositor shall indemnify, defend and hold harmless
the Trustee (which for purposes of this Section 12.2 shall include its
directors, employees, officers and agents) and the Trust from and
against any taxes that may at any time be asserted against
the Trustee or the Trust with respect to, and as of the date of, the
sale of the Receivables to the Trustee or the issuance and original
sale of the Certificates, including any sales, gross receipts, general
corporation, tangible personal property, privilege or license taxes
(but, in the case of the Trust, not including any taxes asserted with
respect to ownership of the Receivables or Federal or other income
taxes arising out of the transactions contemplated by this Agreement)
and costs and expenses in defending against the same.
(ii) The Depositor shall indemnify, defend and hold harmless
the Trustee (which for purposes of this Section 12.2 shall include its
directors, employees, officers and agents) and the Trust from and
against any loss, liability or expense incurred by reason of (a) the
Depositor's willful misfeasance, bad faith or negligence in the
performance of its duties under this Agreement, or by reason of
reckless disregard of its obligations and duties under this Agreement,
(b) the Depositor's violation of Federal or State securities laws in
connection with the registration of the sale of the Certificates or (c)
any action taken by the Trustee at the direction of the Servicer
pursuant to Section 9.1 or otherwise.
Indemnification under this Section 12.2 shall survive the termination
of this Agreement and the resignation or removal of the Trustee, and shall
include, without limitation, reasonable fees and expenses of counsel and
expenses of litigation. If the Depositor shall have made any indemnity payments
to the Trustee pursuant to this Section 12.2 and the Trustee thereafter shall
collect any of such amounts from others, the Trustee shall repay such amounts to
the Depositor, without interest.
SECTION 12.3. Merger or Consolidation of, or Assumption of the
Obligations of Depositor. Any Person (a) into which the Depositor may be merged
or consolidated, (b) which may result from any merger or consolidation to which
the Depositor shall be a party, or (c) which may succeed to the properties and
assets of the Depositor substantially as a whole, which Person in any of the
foregoing cases executes an agreement of assumption to perform every obligation
of the Depositor under this Agreement and the Reimbursement Agreement, shall be
the successor to the Depositor hereunder without the execution or filing of any
document or any further act by any of the parties to this Agreement; provided,
however, that (i) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 8.1 shall have been breached
and no Event of Default, and no event that, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be continuing,
(ii) the Depositor shall have delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel each stating that such consolidation, merger or
succession and such agreement of assumption comply with this Section 16.3 and
(iii) the Depositor shall have delivered an Opinion of Counsel either (A)
stating that, in the opinion of such counsel, all financing statements and
continuation statements and amendments thereto have been executed and filed that
are necessary fully to preserve and protect the interest of the Trustee in the
Receivables, and reciting the details of such filings, or (B) stating that, in
the opinion of such counsel, no such action shall be necessary to preserve and
protect such interest. The Depositor shall provide notice of any merger,
consolidation or succession pursuant to this Section 12.3 to each Rating Agency
and the Surety Bond Issuer. Notwithstanding anything herein to the contrary, the
Depositor shall not consummate any transaction of a type referred to in clauses
(a), (b) or (c) above unless at such time or prior thereto
the foregoing agreement of assumption shall have been executed and the
conditions described in clauses (i), (ii) and (iii) shall have been satisfied.
SECTION 12.4. Limitation on Liability of Depositor and Others. The
Depositor and any director or officer or employee or agent of the Depositor may
rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action that shall not be incidental to its
obligations under this Agreement, and that in its opinion may involve it in any
expense or liability.
SECTION 12.5. Depositor May Own Certificates. The Depositor and any
Person controlling, controlled by or under common control with, the Depositor
may in its individual or any other capacity become the owner or pledgee of
Certificates with the same rights as it would have if it were not the Depositor
or an affiliate thereof, except as otherwise provided in the definition of
"Certificateholder" specified in Section 7.1. Certificates so owned by or
pledged to the Depositor 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 the Certificates.
SECTION 12.6. Depositor's Interest in Reserve Account; No Transfer. The
Depositor hereby acknowledges that the Reserve Account shall not be a part of
the Trust. The Depositor hereby acknowledges that any amounts on deposit in the
Reserve Account (and any investment earnings thereon) is owned directly by it,
and the Depositor agrees to treat the same as its assets (and earnings) for
federal tax and all other purposes. Funds deposited therein shall be
distributable to the Collection Account, the Surety Bond Issuer and the
Depositor as described in this Agreement and in the Reimbursement Agreement.
ARTICLE XIII
SECTION 13.1. Representations of Servicer. The Servicer makes the
following representations on which the Trustee relies in accepting the
Receivables in trust and executing and authenticating the Certificates. The
representations speak as of the execution and delivery of this Agreement and
shall survive the sale of the Receivables to the Trustee.
(i) Organization and Good Standing. The Servicer shall have
been duly organized and shall be validly existing as a corporation in
good standing under the laws of the State of its incorporation, with
power and authority to own its properties and to conduct its business
as such properties shall be currently owned and such business is
presently conducted, and had at all relevant times, and shall have,
power, authority and legal right to acquire, own, sell and service the
Receivables and to hold the Receivable Files as custodian on behalf of
the Trustee.
(ii) Due Qualification. The Servicer shall be duly qualified
to do business as a foreign corporation in good standing, and shall
have obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or lease of
property or the conduct of its business (including the servicing of the
Receivables as required by this Agreement) shall require such
qualifications.
(iii) Power and Authority. The Servicer shall have the power
and authority to execute and deliver this Agreement and to carry out
its terms; and the executions delivery and performance of this
Agreement shall have been duly authorized by the Servicer by all
necessary corporate action.
(iv) Valid Sale; Binding Obligations. This Agreement shall
constitute a legal, valid and binding obligation of the Servicer
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance and
similar laws relating to creditors' rights generally and subject to
general principals of equity.
(v) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
shall not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time
or both) a default under, the articles of incorporation or by-laws of
the Servicer, or any indenture, agreement or other instrument to which
the Servicer is a party or by which it shall be bound; nor 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 this Agreement); nor violate any law or, any
order, rule or regulation applicable to the Servicer of any court or of
any Federal or State regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over the Servicer or
its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending, or, to the Servicer's knowledge, threatened,
before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Servicer or
its properties: (A) asserting the invalidity of this Agreement or the
Certificates; (B) seeking to prevent the issuance of the Certificates
or the consummation of any of the transactions contemplated by this
Agreement; (C) seeking any determination or ruling that might
materially and adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability of, this Agreement
or the Certificates; or (D) relating to the Servicer and which might
adversely affect the Federal income tax attributes of the Certificates.
(vii) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any governmental
body or official required in connection with the execution and delivery
by the Servicer of this Agreement and the Reimbursement Agreement, the
performance by the Servicer of the transactions contemplated by this
Agreement, the Reimbursement Agreement and the Certificates, and the
fulfillment by the Servicer of the terms hereof, have been obtained;
provided,
however, that the Servicer makes no representation or warranty
regarding State securities or "blue sky" laws in connection with the
distribution of the Certificates.
SECTION 13.2. Liability of Servicer; Indemnities. The Servicer shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement:
(i) The Servicer shall defend, indemnify and hold harmless the
Trustee (which for purposes of this Section 13.2 shall include its
directors, officers, employees and agents), the Trust, the
Certificateholders and the Surety Bond Issuer from and against any and
all costs, expenses, losses, damages, claims and liabilities, arising
out of or resulting from the use, ownership or operation by the
Servicer or any affiliate thereof of a Boat.
(ii) The Servicer shall indemnify, defend and hold harmless
the Trustee, (which for purposes of this Section 13.2 shall include its
directors, officers, employees and agents), the Trust and the Surety
Bond Issuer from and against any taxes that may at any time be asserted
against the Trustee, the Trust or the Surety Bond Issuer with respect
to the transactions contemplated herein or in the Reimbursement
Agreement, including, without limitation, any sales, gross receipts,
general corporation, tangible personal property, privilege or license
taxes (but, in the case of the Trust, not including any taxes asserted
with respect to, and as of the date of, the sale of the Receivables to
the Trust or the issuance and original sale of the Certificates, or
asserted with respect to ownership of the Receivables, or Federal or
other income taxes arising out of distributions on the Certificates)
and costs and expenses in defending against the same.
(iii) The Servicer shall indemnify, defend and hold harmless
the Trustee (which for purposes of this Section 13.2 shall include its
directors, officers, employees and agents), the Trust, and the
Certificateholders 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 the Trustee, the Trust, the Surety Bond Issuer or the
Certificateholders through, the negligence, willful misfeasance or bad
faith of the Servicer in the performance of its duties under this
Agreement or the Reimbursement Agreement or by reason of reckless
disregard of its obligations and duties under this Agreement or the
Reimbursement Agreement.
(iv) The Servicer shall indemnify, defend and hold harmless
the Trustee (which for purposes of this Section 13.2 shall include its
directors, officers, employees and agents), 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, including any action by the Trustee at the direction of the
Servicer taken pursuant to Section 9.1, and the trusts and duties
contained in the Reimbursement Agreement, except to the extent that
such cost, expense, loss, claim, damage or liability: (a) shall be due
to the willful misfeasance, bad faith or negligence (except for errors
in judgment) of the Trustee; (b) relates to any tax other than the
taxes with respect to which either the Depositor or the Servicer shall
be required to indemnify the Trustee; (c) shall
arise from Trustee's breach of any of its representation or warranties
set forth in Section 15.8; (d) shall be one as to which the Depositor
is required to indemnify the Trustee; or (e) shall arise out of or be
incurred in connection with the acceptance or performance by the
Trustee of the duties of successor Servicer hereunder unless such cost,
expense, loss, claim, damage or liability was caused by the act or
omission of the predecessor Servicer.
For purposes of this Section 13.2, in the event of the termination of
the rights and obligations of CITSF(or any successor thereto pursuant to Section
13.3) as Servicer pursuant to Section 18.1, or a resignation by such Servicer
pursuant to this Agreement, such Servicer shall be deemed to be the Servicer
pending appointment of a successor Servicer (other than the Trustee) pursuant to
Section 14.2.
Indemnification under this Section 13.2 shall survive termination of
this Agreement and the resignation or removal of the Trustee and shall include,
without limitation, reasonable fees and expenses of counsel and expenses of
litigation. If the Servicer shall have made any indemnity payments pursuant to
this Section 13.2 and the recipient thereafter collects any of such amounts from
others, the recipient shall promptly repay such amounts to the Servicer, without
interest.
SECTION 13.3. Merger or Consolidation of, or Assumption of the
Obligations of the Servicer. Any Person (a) into which the Servicer may be
merged or consolidated, (b) which may result from any merger or consolidation to
which the Servicer shall be a party, or (c) which may succeed to the properties
and assets of the Servicer substantially as a whole, or any Person, more than
50% of the voting stock of which is, directly or indirectly, owned by The CIT
Group, Inc., which Person in each of the foregoing cases executed an agreement
of assumption to perform every obligation of the Servicer hereunder and under
the Reimbursement Agreement, shall be the successor to the Servicer under this
Agreement without further act on the part of any of the parties to this
Agreement; provided, however, that (i) immediately after giving effect to such
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default shall have happened and be
continuing, (ii) the Servicer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
17.3, and (iii) the Servicer shall have delivered to the Trustee an Opinion of
Counsel either (A) stating that, in the opinion of such counsel, all financing
statements and continuation statements and amendments thereto have been executed
and filed that are necessary fully to preserve and protect the interest of the
Trustee in the Receivables, and reciting the details of such filings, or (B)
stating that, in the opinion of such counsel, no such action shall be necessary
to preserve and protect such interest. The Servicer shall provide notice of any
merger, consolidation or succession pursuant to this Section 13.3 to each Rating
Agency and the Surety Bond Issuer. Notwithstanding anything herein to the
contrary, the Servicer shall not consummate any transaction of a type referred
to in clauses (a), (b) or (c) above unless at or prior thereto the foregoing
agreement of assumption shall have been executed and the conditions described in
clauses (i), (ii) and (iii) shall have been satisfied.
SECTION 13.4. Limitation on Liability of Servicer and Others. (a)
Neither the Servicer nor any of the directors or officers or employees or agents
of the Servicer shall be under any liability to the Trust or the
Certificateholders, except as provided under this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this
Agreement; provided, however, that this provision shall not protect the Servicer
or any such person against any liability that would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless disregard of obligations and duties under this
Agreement. The Servicer and any director or officer or 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 under this
Agreement.
(b) Except as provided in this Agreement, the Servicer shall not be
under any obligation to appear in, prosecute, or defend any legal action that
shall not be incidental to its duties to service the Receivables in accordance
with this Agreement, and that in its opinion may involve it in any expense or
liability; provided, however, that the Servicer may undertake any reasonable
action that it may deem necessary or desirable in respect of this Agreement and
the rights and duties of the parties to this Agreement and the interests of the
Certificateholders under this Agreement.
ARTICLE XIV
SECTION 14.1. Events of Default.
(a) If any one of the following events (each an "Event of Default")
shall occur and be continuing:
(i) Any failure by the Servicer to deliver to the Trustee for
distribution to Certificateholders any proceeds or payment required to
be so delivered under the terms of the Certificates and this Agreement
that shall continue unremedied for a period of three Business Days
after written notice from the Trustee is received by the Servicer as
specified in this Agreement or after discovery of such failure by an
officer of the Servicer; or
(ii) any failure on the part of the Servicer or the Depositor
duly to observe or to perform in any material respect any other
covenants or agreements of the Servicer or the Depositor (as the case
may be) set forth in the Certificates or in this Agreement, which
failure shall (a) materially adversely affects the rights of
Certificateholders as determined by the Holders of Certificates
evidencing not less than a majority of the Certificate Balance and (b)
continue unremedied for a period of 60 days after the date on which
written notice of such failure, requiring the same to be remedied,
shall have been given (1) to the Servicer or the Depositor (as the case
may be), by the Trustee, or (2) to the Servicer or the Depositor (as
the case may be) and to the Trustee by the Surety Bond Issuer; or
(iii) The entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of a conservator, receiver or liquidator for the Servicer
or the Depositor in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities, or similar proceedings, or for
the winding up or liquidation of their respective affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(iv) The consent by the Servicer or the Depositor to the
appointment of a conservator or receiver or liquidator in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities, or similar proceedings of or relating to the Servicer or
the Depositor or relating to substantially all their property; or the
Servicer or the Depositor 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; or
(v) Any representation or warranty by the Servicer in this
Agreement shall prove to have been incorrect in any material respect
when made, which continues to be incorrect in any material respect for
a period of 60 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 Trustee, or to the Servicer and the Trustee by the
Surety Bond Issuer and as a result of which the interests hereunder of
Certificateholders are materially and adversely affected;
then, and in each and every case, so long as an Event of Default shall not have
been remedied, the Surety Bond Issuer, by notice then given in writing to the
Servicer may terminate all the rights and obligations of the Servicer under this
Agreement (a "Servicer Transfer").
(b) In addition to a Servicer Transfer effected pursuant to clause (a)
of this Section 14.1, the Surety Bond Issuer with notice in writing to the
Servicer, may effect a Servicer Transfer upon the occurrence of any of the
following events: (i) the Depositor or the Servicer, as the case may be, shall
fail to pay when due any amount payable by it hereunder or under the
Reimbursement Agreement which failure shall have continued for three (3)
Business Days after receipt of notice thereof by the Depositor or the Servicer,
as the case may be; (ii) the Surety Bond Issuer determines that the performance
of the Servicer is not, in the opinion of the Surety Bond Issuer, in conformity
with the Servicing Standards; or (iii) if, with respect to any Distribution
Date, the average of the Net Credit Loss Ratio for the three preceding calendar
months exceeds ____%.
(c) On or after the receipt by the Servicer of such written notice
which effects a Servicing Transfer, all authority and power of the Servicer
under this Agreement, whether with respect to the Certificates or the
Receivables or otherwise, shall, without further action, pass to and be vested
in the Trustee or such successor Servicer as may be appointed under Section 14.2
pursuant to and under this Section 14.1; and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the
predecessor Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to
complete the transfer and endorsement of the Receivables and related documents,
or otherwise. The predecessor Servicer shall cooperate with the successor
Servicer and the Trustee in effecting the termination of the responsibilities
and rights of the predecessor Servicer under this Agreement, including the
transfer to the successor Servicer for administration by it of all cash amounts
that shall at the time be held by the predecessor Servicer for deposit, or shall
thereafter be received with respect to a Receivable. All reasonable costs and
expenses (including attorneys' fees and disbursements) incurred in connection
with transferring the Receivable Files to the successor Servicer and amending
this Agreement and the Reimbursement Agreement to reflect such succession as
Servicer pursuant to this Section 14.1 shall be paid by the predecessor Servicer
upon presentation of reasonable documentation of such costs and expenses.
SECTION 14.2. Appointment of Successor. (a) Upon the Servicer's receipt
of notice of termination pursuant to Section 14.1 or the Servicer's resignation
in accordance with the terms of this Agreement, the predecessor Servicer shall
continue to perform its functions as Servicer under this Agreement, in the case
of termination, only until the date specified in such termination notice or, if
no such date is specified in a notice of termination, until receipt of such
notice and, in the case of resignation, until the later of (x) the date 45 days
from the delivery to the Trustee of written notice of such resignation (or
written confirmation of such notice of resignation) in accordance with the terms
of this Agreement and (y) the date upon which the predecessor Servicer shall
become unable to act as Servicer, as specified in the notice of resignation and
an accompanying Opinion of Counsel. In the event of the Servicer's resignation
or termination hereunder, a successor Servicer appointed by the Trustee and
consented to by the Surety Bond Issuer in writing which consent shall not be
unreasonably withheld or the Trustee (unless it is unwilling or legally unable
to do so) will succeed to all the responsibilities, duties and liabilities of
the Servicer under this Agreement and will be entitled to similar compensation
arrangements. The successor Servicer shall accept its appointment by a written
assumption in form acceptable to the Trustee and the Surety Bond Issuer.
Notwithstanding the above, the Trustee, if it is unwilling or unable so to act,
shall appoint or petition a court of competent jurisdiction to appoint, an
established institution, having a net worth of at least $50,000,000 and whose
regular business shall include the servicing of marine retail installment sale
contracts, as the successor to the Servicer under this Agreement.
(b) Upon appointment, the successor Servicer shall be the successor in
all respects to the predecessor Servicer and shall be subject to all the
responsibilities, duties and liabilities arising thereafter relating thereto
placed on the predecessor Servicer, and shall be entitled to the Servicing Fee
and other fees payable to the Servicer pursuant to Section 9.8, and all the
rights granted to the predecessor Servicer, by the terms and provisions of this
Agreement. No such appointment shall make the successor Servicer responsible for
any liabilities of the predecessor Servicer incurred prior to such appointment
or for any acts, omissions or misrepresentations of such predecessor Servicer.
(c) In connection with such appointment, the Trustee may, with the
consent of the Surety Bond Issuer, make such arrangements for the compensation
of such successor Servicer out of payments on Receivables as it and such
successor Servicer shall negotiate on an arms-length basis, but in no event
shall the Servicing Fee Rate be greater than ____% per annum.
SECTION 14.3. Notification to Certificateholders. Upon any termination
of, or appointment of a successor to, the Servicer pursuant to this Article XIV,
the Trustee shall give prompt written notice thereof to Certificateholders at
their respective addresses appearing in the Certificate Register and to each
Rating Agency.
SECTION 14.4. Waiver of Past Defaults. So long as no Surety Bond Issuer
Default shall have occurred and be continuing, the Surety Bond Issuer may, on
behalf of all the Holders of Certificates, waive any default by the Servicer in
the performance of its obligations hereunder and its consequences, except a
default in making any required deposits to or payments from the Certificate
Account in accordance with this Agreement. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall impair such Certificateholders' rights or the
Surety Bond Issuer's rights with respect to subsequent defaults.
ARTICLE XV
SECTION 15.1. Duties of Trustee. (a) The Trustee, both prior to the
occurrence of an Event of Default and after an Event of Default shall have been
cured or waived, shall undertake to perform only such duties as are specifically
set forth in this Agreement. If an Event of Default shall have occurred and
shall not have been cured or waived and, the Trustee has received notice of such
Event of Default pursuant to Section 9.10(b), the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and shall use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs; provided,
however, that if the Trustee shall assume the duties of the Servicer pursuant to
Section 14.2, the Trustee in performing such duties shall use the degree of
skill and attention customarily exercised by a servicer with respect to
comparable receivables that it services for itself or others. For purposes of
this Article XV, an Event of Default shall be deemed to have been cured upon the
appointment of a successor Servicer (including the Trustee in such capacity).
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that shall be specifically required to be furnished pursuant to
any provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
(c) The Trustee shall take and maintain custody of the Schedule of
Receivables included as an exhibit to this Agreement and shall retain all
Servicer's Certificates identifying Receivables that become Purchased
Receivables.
(d) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act (other than errors in judgment) or its own bad faith; provided, however,
that:
(i) Prior to the occurrence of an Event of Default (or in the
case of an Event of Default described in clause (i) of Section 14.1,
before the Trustee has received notice of such Event of Default
pursuant to Section 9.10(b)), and after the curing or waiving of all
such Events of Default that may have occurred, the duties and
obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except
for the performance of such duties and obligations as shall be
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and,
in the absence of bad faith or willful misfeasance on the part of the
Trustee, the Trustee may conclusively rely on the truth of the
statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement;
(ii) The Trustee shall not be liable for an error of judgment
made in good faith by a Trustee Officer, unless it shall be proved that
the Trustee shall have been negligent in ascertaining the pertinent
facts;
(iii) The Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken in good faith in
accordance with this Agreement or at the direction of the Holders of
Certificates evidencing not less than 25% of the Certificate Balance
relating to the time, method and place of continuing any proceeding for
any remedy available to the Trustee, or relating to the exercise of any
trust power conferred upon the Trustee, under this Agreement;
(iv) The Trustee shall not be charged with knowledge of any
failure by the Servicer to comply with the obligations of the Servicer
referred to in clauses (i) or (ii) of Section 14.1, or of any failure
by the Depositor to comply with the obligations of the Depositor
referred to in clause (ii) of Section 14.1, or of any incorrect
representation or warranty referred to in clause (v) of Section 14.1,
unless a Trustee Officer assigned to the Corporate Trust Office
receives written notice of such failure or incorrectness from the
Servicer or the Depositor, as the case may be, from the Surety Bond
Issuer or from the Holders of Certificates evidencing not less than 25%
of the Certificate Balance, it being understood that knowledge of the
Servicer or the Servicer as custodian is not attributable to the
Trustee;
(v) Without limiting the generality of this Section 15.1 or
Section 15.4, the Trustee shall have no duty (i) to see to any
recording, filing or depositing of this Agreement or any agreement
referred to therein or any financing statement or continuation
statement evidencing a security interest in the Receivables or the
Boats, or to see to the maintenance if any such recording or filing or
depositing or to any rerecording, refiling or redepositing of any
thereof, (ii) to see to any insurance of the Boats or Obligors or to
effect or maintain any such insurance, (iii) to see to the payment or
discharge of any tax, assessment or other governmental charge or any
Lien or encumbrance of any kind owing with respect to, assessed or
levied against, any part of the Trust, (iv) to confirm or verify the
contents of any reports or certificates of the Servicer delivered to
the Trustee pursuant to this Agreement believed by the Trustee to be
genuine and to have been signed or presented by the proper party or
parties, (v) to inspect the Boats at any time or ascertain or inquire
as to the performance or observance of any of the Depositor's or the
Servicer's representations, warranties or covenants or the Servicer's
duties and obligations as Servicer and as custodian of the Receivable
Files under this Agreement, or (vi) to prepare or make any filings with
the Securities and Exchange Commission with respect to the Trust; and
(vi) The Trustee shall not be deemed to be a fiduciary for the
Surety Bond Issuer in its capacity as such, and the Trustee's sole
responsibility with respect to the Surety Bond Issuer, in its capacity
as such, shall be to perform those duties with respect to the Surety
Bond Issuer as are specifically set forth herein and no implied
covenants shall be read into this Agreement against the Trustee with
respect to the Surety Bond Issuer.
(e) Neither the Trustee nor the Collateral Agent shall be required to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder, and the Trustee shall have no
liability in connection with losses on Permitted Investments made pursuant to
this Agreement or in the exercise of any of its rights or powers, and none of
the provisions contained in this Agreement shall in any event require the
Trustee to perform, or be responsible for the manner of performance of, any of
the obligations of the Servicer under this Agreement except during such time, if
any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Servicer in accordance with the terms of
this Agreement.
(f) Notwithstanding anything to the contrary contained herein, the
Collateral Agent shall have the same rights, indemnities and protections
afforded the Trustee.
SECTION 15.2 Trustee's Certificate. On or as soon as practicable after
each Distribution Date on which Receivables shall be assigned to the Depositor
or the Servicer, as applicable, pursuant to Section 15.3, the Trustee shall
execute a Trustee's Certificate, based on the information contained in the
Servicer's Certificate for the related Collection Period, amounts deposited to
the Certificate Account and notices received pursuant to this Agreement,
identifying the Receivables repurchased by the Depositor pursuant to Section
12.2, purchased by the Servicer pursuant to Section 9.7 or 20.2 during such
Collection Period, and shall deliver such Trustee's Certificate, accompanied by
a copy of the Servicer's Certificate for such Collection Period to the Depositor
or the Servicer, as the case may be. The Trustee's Certificate submitted with
respect to such Distribution Date shall operate, as of such Distribution Date,
as an assignment, without recourse, representation or warranty, to the Depositor
or the Servicer, as the case may be, of all the Trustee's right, title and
interest in and to such repurchased Receivable, and all security and documents
relating thereto, such assignment being an assignment outright and not for
security.
SECTION 15.3. Trustee's Assignment of Purchased Receivables. With
respect to all Receivables repurchased by the Depositor pursuant to Section 12.2
or purchased by the Servicer pursuant to Section 9.7 or 20.2, the Trustee shall
by a Trustee's Certificate assign, without recourse, representation or warranty,
to the Depositor or the Servicer (as the case may be) all the
Trustee's right, title and interest in and to such Receivables, and all security
interests and documents relating thereto.
SECTION 15.4. Certain Matters Affecting Trustee. Except as otherwise
provided in Section 15.1:
(i) The Trustee may rely conclusively and shall be protected
in acting or refraining from acting upon any resolution, Officer's
Certificate, Servicer's Certificate, certificate of auditors, or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond, or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties.
(ii) The Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
under this Agreement in good faith and in accordance with such advice
or Opinion of Counsel.
(iii) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or in
relation to this Agreement, at the request, order or direction of any
of the Certificateholders pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred therein or thereby.
(iv) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement.
(v) Prior to the occurrence of an Event of Default (or in the
case of an Event of Default described in clause (i) of Section 14.1,
before the Trustee has received notice of such Event of Default
pursuant to Section 9.10(b)), and after the curing or waiving of all
Events of Default that may have occurred, the Trustee shall not be
bound to make any investigation into the facts of matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, or other paper or
document, unless requested in writing so to do by the Surety Bond
Issuer or by Holders of Certificates evidencing not less than 25% of
the Certificate Balance; provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation shall
be, in the opinion of the Trustee, not assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may
require indemnity satisfactory to it against such cost, expense or
liability as a condition to so proceeding. The expense of every such
examination shall be paid by the Servicer or, if paid by the Trustee,
shall be reimbursed by the Servicer upon demand. Nothing in this clause
(v) shall affect the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the
Obligors.
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties under this Agreement either directly or
by or through agents or attorneys or a custodian. The Trustee shall not
be responsible for any misconduct or negligence of any such agent or
custodian appointed with due care by it hereunder or of the Servicer in
its capacity as Servicer or custodian.
(vii) Subsequent to the sale of the Receivables by the
Depositor to the Trustee, on behalf of the Trust, the Trustee shall
have no duty of independent inquiry, except as may be required by
Section 15.1, and the Trustee may rely upon the representations and
warranties and covenants of the Depositor and the Servicer contained in
this Agreement with respect to the Receivables and the Receivable
Files.
SECTION 15.5. Trustee Not Liable for Certificates or Receivables. (a)
The recitals contained herein and in the Certificates (other than the
certificate of authentication on the Certificates) shall be taken as the
statements of the Depositor or the Servicer, as the case may be, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee shall make no
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than the certificate of authentication on the Certificates),
or of any Receivable or related document.
(b) The Trustee shall at no time have any responsibility or liability
for or with respect to the legality, validity and enforceability of any security
interest in any Boat or any Receivable, or the perfection and priority of such a
security interest or the maintenance of any such perfection and priority, or for
or with respect to the efficacy of the Trust or its ability to generate the
payments to be distributed to Certificateholders under this Agreement,
including, without limitation: the existence, condition, location and ownership
of any Boat; the review of any Receivable File; the existence and enforceability
of any physical damage insurance thereon; the existence and contents of any
Receivable or Receivable File or any computer or other record thereof; the
validity of the assignment of any Receivable to the Trust or of any intervening
assignment; the completeness of any Receivable or Receivable File; the
performance or enforcement of any Receivable; the compliance by the Depositor or
the Servicer with any warranty or representation made under this Agreement or in
any related document and the accuracy of any such warranty or representation
prior to the Trustee's receipt of notice or other discovery of any noncompliance
therewith or any breach thereof; any investment of monies by the Servicer or any
loss resulting therefrom; the acts or omissions of the Depositor, the Servicer
or any Obligor; any action of the Servicer taken in the name of the Trustee; or
any action by the Trustee taken at the instruction of the Servicer; provided,
however, that the foregoing shall not relieve the Trustee of its obligation to
perform its duties under this Agreement.
(c) Except with respect to a claim based on the failure of the Trustee
to perform its duties under this Agreement or based on the Trustee's negligence
or willful misconduct, no recourse shall be had for any claim based on any
provision of this Agreement, the Certificates or any Receivable or assignment
thereof against the Trustee in its individual capacity, the Trustee shall not
have any personal obligation, liability or duty whatsoever to any
Certificateholder or
any other Person with respect to any such claim, and any such claim shall be
asserted solely against the Trust or any indemnitor who shall furnish indemnity
as provided in this Agreement.
(d) The Trustee shall not be accountable for the use or application by
the Depositor of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Servicer in
respect of the Receivables.
(e) Any obligation of the Trustee to give any notice or statement to
any rating agency hereunder shall constitute only a best efforts obligation and
such notice or statement shall be so provided only as a matter of courtesy and
accommodation, the Trustee having no liability to any rating agency or any other
Person for any failure to so provide such notice or statement. The Depositor
hereby certifies to the Trustee that each Rating Agency is rating the
Certificates and that each Rating Agency's address is as set forth in Section
21.5. The Trustee may rely on the accuracy of such certification until it
receives from the Depositor an Officer's Certificate superseding such
certification.
SECTION 15.6. Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
and may deal with the Depositor and the Servicer in banking transactions with
the same rights as it would have if it were not Trustee.
SECTION 15.7. Trustee's Fees and Expenses. (a) The Servicer shall pay
to the Trustee, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
and in the execution of the trusts created by this Agreement, and in the
exercise and performance of any of the Trustee's powers and duties under this
Agreement. The Servicer shall pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ) incurred or made by the Trustee in
accordance with any provisions of this Agreement except any such expense,
disbursement or advance as may be attributable to its willful misfeasance,
negligence or bad faith.
(b) The Depositor shall indemnify the Trustee (which for purposes of
this subsection (b) shall include its directors, officers, employees and agents)
for, and shall hold it harmless against, any loss, liability or expense incurred
without willful misfeasance, negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this Agreement and the
Trust and the trusts created by the Reimbursement Agreement, including the costs
and expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties under this
Agreement or the Reimbursement Agreement. Additionally, the Depositor, pursuant
to Section 12.2, and the Servicer, pursuant to Section 13 .2, shall indemnify
the Trustee with respect to certain matters, and Certificateholders, pursuant to
Section 15.4, shall upon the circumstances therein set forth, indemnify the
Trustee under certain circumstances. In the event that the Depositor fails to
pay the amounts it is obligated to pay to the Trustee pursuant to this Section
15.7(b), the Trustee shall be entitled to receive such amounts from the
Servicing Fee prior to the payment thereof to the Servicer. The
indemnification provided under this Section 19.7 shall survive termination of
this Agreement and removal or resignation of the Trustee.
SECTION 15.8. Representations and Warranties of Trustee. The Trustee
shall make the following representations and warranties on which the Depositor
and Certificateholders shall rely:
(i) The Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of the State of
New York.
(ii) The Trustee has full corporate power, authority and legal
right to execute, deliver and perform its duties and obligations under
this Agreement, and shall have taken all necessary action to authorize
the execution, delivery and performance by it of this Agreement.
(iii) This Agreement shall have been duly executed and
delivered by the Trustee.
SECTION 15.9. Eligibility Requirements for Trustee. The Trustee under
this Agreement shall at all times: be a banking corporation having an office in
the same State as the location of the Corporate Trust Office as specified in
this Agreement; be organized and doing business under the laws of such State or
the United States of America; be authorized under such laws to exercise
corporate trust powers; have a combined capital and surplus of at least
$50,000,000; and be subject to supervision or examination by Federal or State
authorities.
If the Trustee 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 15.9, 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. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section l9.9, the Trustee shall resign immediately in the
manner and with the effect specified in Section 15.10.
SECTION 15.10. Resignation or Removal of Trustee. (a) The Trustee and
the Collateral Agent may at any time resign and be discharged from the trusts
hereby created by giving not less than 60 days' prior written notice thereof to
the Servicer; provided, however, that any such resignation in either capacity
shall be deemed a resignation as both Trustee and Collateral Agent. Upon
receiving such notice of resignation, the Servicer with the consent of the
Surety Bond Issuer (unless a Surety Bond Issuer Default shall have occurred and
be continuing) shall promptly appoint a successor Trustee and Collateral Agent
by written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and Collateral Agent and one copy to the
successor Trustee and Collateral Agent. If no successor Trustee and Collateral
Agent shall have been so appointed and have accepted appointment within 60 days
after the giving of such notice of resignation, the resigning Trustee and
Collateral Agent may petition any court of competent jurisdiction for the
appointment of a successor Trustee and Collateral Agent.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 15.9 and shall fail to resign after written
request there for by the Servicer, or if at any time the Trustee shall be
legally unable to act, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Servicer may remove the Trustee and Collateral Agent. If it shall remove the
Trustee and Collateral Agent under the authority of the immediately preceding
sentence, the Servicer shall promptly appoint a successor trustee and collateral
agent acceptable to the Surety Bond Issuer by written instrument, in duplicate,
one copy of which instrument shall be delivered to the Trustee and Collateral
Agent so removed and one copy to the successor Trustee and Collateral Agent.
(c) Any resignation or removal of the Trustee and Collateral Agent and
appointment of a successor Trustee and Collateral Agent pursuant to any of the
provisions of this Section 15.10 shall not become effective until acceptance of
appointment by the successor Trustee pursuant and Collateral Agent pursuant to
Section 15.11 and payment of all fees and expenses owed to the outgoing Trustee
and Collateral Agent. The Servicer shall provide notice of such resignation or
removal of the Trustee to each Rating Agency.
SECTION 15.11. Successor Trustee and Collateral Agent. (a) Any
successor Trustee or Collateral Agent appointed pursuant to Section 15.10 be
approved as both Trustee and Collateral Agent and shall execute, acknowledge and
deliver to the Servicer and to its predecessor Trustee and Collateral Agent an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Trustee and Collateral Agent shall
become effective and such successor Trustee and Collateral Agent, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor under this Agreement, with
like effect as if originally named as Trustee and Collateral Agent. The
predecessor Trustee and Collateral Agent shall deliver to the successor Trustee
and Collateral Agent all documents, statements and monies held by it under this
Agreement; and the Servicer and the predecessor Trustee and Collateral Agent
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Trustee and Collateral Agent all such rights, powers, duties and
obligations.
(b) No successor Trustee and Collateral Agent shall accept appointment
as provided in this Section 15.11, unless at the time of such acceptance such
successor Trustee shall be eligible pursuant to Section 15.9.
(c) Upon acceptance of appointment by a successor Trustee and
Collateral Agent pursuant to this Section 15.11, the Servicer shall mail notice
of the successor of such Trustee and Collateral Agent under this Agreement to
all Holders of Certificates at their addresses as shown in the Certificate
Register. If the Servicer shall fail to mail such notice within 10 days after
acceptance of appointment by the successor Trustee and Collateral Agent, the
successor Trustee and Collateral Agent shall cause such notice to be mailed at
the expense of the Servicer.
SECTION 15.12. Merger or Consolidation of Trustee. Any corporation into
which the 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 Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be eligible pursuant to Section 15.9, without the execution or
filing of any instrument or any further act on the part of any of the parties
hereto; anything herein to the contrary notwithstanding.
SECTION 15.13. 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 requirements of any jurisdiction in which any part
of the Trust or any Boat may at the time be located, the Servicer and the
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust, and to vent in such Person, in such capacity
and for the benefit of the Certificateholders, such title to the Trust, or any
part thereof, and, subject to the other provisions of this Section 15.13, such
powers, duties, obligations, rights and trusts as the Servicer and the 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,
or in the case an Event of Default shall have occurred and be continuing, the
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 15.9 and no notice of a
successor trustee pursuant to Section 15.11 and no notice to Certificateholders
of the appointment of any co-trustee or separate trustee shall be required
pursuant to Section 15.11.
(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 Trustee shall be conferred upon and exercised or
performed by the 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 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 (whether as
Trustee under this Agreement or as successor to the Servicer under this
Agreement), the 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 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 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 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 XV. 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 Trusts 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 Trustee. Each
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer.
(d) Any separate trustee or co-trustee may at any time appoint the
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 become incapable of acting, resign or be removed, all its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee. Notwithstanding anything to the contrary in this Agreement,
the appointment of any separate trustee or co-trustee shall not relieve the
Trustee of its obligations and duties hereunder.
ARTICLE XVI
SECTION 16.1. Termination of the Trust. (a) The respective obligations
and responsibilities of the Depositor, the Servicer, the Trustee and the Trust
created hereby shall terminate upon (i) the payment in full or other liquidation
of the last Receivable and the disposition of any amounts received upon
liquidation of any remaining Receivables, including Defaulted Receivables, (ii)
the payment to the Certificateholders of all amounts required to be paid to them
pursuant to this Agreement and the payment to the Surety Bond Issuer of all
amounts required to be paid to it pursuant to this Agreement and the
Reimbursement Agreement and disposition of all property held by the Trust or
(iii) the purchase as of the last day of any Collection Period by the Servicer
at its option, pursuant to Section 16.2, of the corpus of the Trust; provided,
however, that in no event shall the trust created by this Agreement continue
beyond the expiration of 21 years from the date hereof. The Servicer shall
promptly notify the Trustee of any prospective termination pursuant to this
Section 16.1.
(b) Notice of any termination, specifying the Distribution Date upon
which the Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation, shall be given promptly by
the Trustee by letter to Certificateholders mailed not earlier than the 15th day
and not later than the 25th day of the month next preceding the specified
Distribution Date stating (A) the Distribution Date upon which final payment of
the Certificates shall be made upon presentation and surrender of the
Certificates at the office of the Trustee therein designated, (B) the amount of
any such final
payment, and (C) if applicable, 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 Trustee
therein specified. The Trustee shall give such notice to the Certificate
Registrar (if other than the Trustee) at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed to Certificateholders amounts
distributable on such Distribution Date pursuant to Section 10.5.
(c) In the event that all the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above-mentioned written notice, the 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 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. Any funds remaining in the Trust after exhaustion of
such remedies shall be distributed by the Trustee upon written direction of the
Servicer delivered to the Trustee to the United Way of Metropolitan Dallas.
As soon as practicable after the Distribution Date specified for the
final distribution or upon such other date upon which all amounts to be paid to
Certificateholders pursuant to this Agreement have been paid, the Trustee shall
deliver a letter to the Surety Bond Issuer in substantially the form of Exhibit
C to the Surety Bond.
SECTION 16.2. Optional Purchase of All Receivables. On the last day of
any Collection Period as of which the Pool Balance shall decline to __% or less
of the Original Pool Balance, the Servicer shall have the option to purchase the
corpus of the Trust. To exercise such option, the Servicer shall deposit
pursuant to Section 10.4 in the Collection Account an amount equal to the
aggregate Purchase Amount for the Receivables, as of the beginning of the
Collection Period related to such Record Date plus the appraised value of any
other property held by the Trust less the amount of all Collections, any amounts
referred to in clause (ii) of the definition of Available Funds, and Liquidation
Proceeds received by the Servicer during such Collection Period, and shall
succeed to all interests in and to the Trust; provided, however, that without
the consent of the Surety Bond Issuer the Servicer may not make any such
purchase if, after giving effect to such purchase and the distributions on the
related Distribution Date there would be outstanding amounts under the
Reimbursement Agreement and this Agreement, which have not been paid to the
Surety Bond Issuer.
ARTICLE XVII
SECTION 17.1. Amendment. (a) This Agreement may be amended by the
Depositor, the Servicer and the Trustee, without the consent of the
Certificateholders or the Surety Bond Issuer, to cure any ambiguity, to correct
or supplement any provisions in this Agreement, or to add any
other provisions with respect to matters or questions arising under this
Agreement that shall not be inconsistent with the provisions of this Agreement;
provided, however, that such action will not, in the opinion of counsel
satisfactory to the Trustee, materially and adversely affect the interest of any
Certificateholder or the Surety Bond Issuer.
(b) This Agreement may also be amended by the Depositor, the Servicer
and the Trustee, with the consent of the Surety Bond Issuer and the Holders of
Certificates (which consent of any Holder of a Certificate given pursuant to
this Section 17.1 or pursuant to any other provision of this Agreement shall be
conclusive and binding on such Holder and on all future Holders of such
Certificate and of any Certificate issued upon the transfer thereof or in
exchange thereof or in lieu thereof whether or not notation of such consent is
made upon the Certificate) evidencing not less than 51% of the Certificate
Balance as of the most recent Record Date, 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 the Surety Bond Issuer; provided, however, that no such
amendment may (i) increase or reduce in any manner the amount of, or accelerate
or delay the timing of, Collections of payments on Receivables or distributions
that are required to be made on any Certificate, or (ii) reduce the aforesaid
percentage required to consent to any such amendment, in each case without the
consent of the holders of all Certificates then outstanding.
(c) Prior to the execution of any such amendment or consent, the
Servicer shall furnish written notification of the substance of such amendment
or consent to each Rating Agency. Promptly after the execution of any such
amendment or consent, the Trustee shall forward such written notification
provided to the Trustee by the Servicer of the substance of such amendment or
consent to each Certificateholder.
(d) It shall not be necessary for the consent of Certificateholders
pursuant to this Section 17.1 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 shall be
subject to such reasonable requirements as the Trustee may prescribe, including
the establishment of record dates pursuant to the Depository Agreement.
(e) Prior to the execution of any amendment to this Agreement, the
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 and the Opinion of Counsel referred to in Section 17.2(h)(i)(1). The
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Trustees own rights, duties or immunities under this Agreement or
otherwise.
(f) The provisions combined in clauses (a) and (b) of this Section 17.1
shall not apply to an amendment to the definition of "Specified Reserve Account
Requirement."
SECTION 17.2. Protection of Title to Trust. (a) The Depositor shall
execute and file such financing statements and cause to be executed and filed
such continuation statements, all in such
manner and in such places as may be required by law fully to preserve, maintain
and protect the interest of the Certificateholders and the Trustee in the
Receivables and in the proceeds thereof. The Depositor shall deliver (or cause
to be delivered) to the Trustee file-stamped copies of, or filing receipts for,
any document filed as provided above, as soon as available following such
filing.
(b) Neither the Depositor nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed by the Depositor in
accordance with paragraph (a) above seriously misleading within the meaning of
Section 9-402(7) of the UCC, unless it shall have given the Trustee at least 30
days' prior written notice thereof and shall have promptly filed appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) The Depositor and the Servicer shall give the Trustee at least 30
days' prior written notice of any relocation of its principal executive office
if, as a result of such relocation, the applicable provisions of the UCC would
require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement, and shall promptly
file any such amendment. The Servicer shall at all times maintain each office
from which it shall service Receivables, and its principal executive office,
within the United States of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, 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
Receivable and the amounts from time to time deposited in the Collection Account
in respect of such Receivable. (e) The Servicer shall maintain its computer
systems so that, from and after the time of sale under this Agreement of the
Receivables to the Trustee, the Servicer's master computer records (including
any back-up archives) that refer to a Receivable shall indicate clearly with
reference to the particular grantor trust that such Receivable is owned by the
Trustee. Indication of the Trustee's ownership of a Receivable, on behalf of the
Trust, shall be deleted from or modified on the Servicer's computer systems
when, and only when, the Receivable shall have been paid in full or repurchased.
(e) If at any time the Depositor or the Servicer shall propose to sell,
grant a security interest in, or otherwise transfer any interest in marine
receivables to any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or print-outs (including any restored from back-up
archives) that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been sold and is owned by the
Trustee.
(f) The Servicer shall permit the Trustee and its agents at any time
during normal business hours to inspect, audit and make copies of and abstracts
from the Servicer's records regarding any Receivable.
(g) Upon request, the Servicer shall furnish to the Trustee, within
five Business Days, a list of all Receivables (by contract number and name of
Obligor) then held as part of the Trust, together with a reconciliation of such
list to the Schedule of Receivables and to each of the Servicer's Certificates
furnished before such request indicating removal of Receivables from the Trust.
(h) The Servicer shall deliver to the Trustee:
(1) promptly after the execution and delivery of this
Agreement and of each amendment thereto, an Opinion of Counsel either
(a) stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the interest of the
Trustee in the Receivables, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are given,
or (b) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest; and
(2) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three months
after the Cutoff Date, an Opinion of Counsel, dated as of a date during
such 90-day period, either (a) stating that, in the opinion of such
counsel, all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect the
interest of the Trustee, on behalf of the Trust, in the Receivables,
and reciting the details of such filings or referring to prior Opinions
of Counsel in which such details are given, or (b) stating that, in the
opinion of such counsel, no such action shall be necessary to preserve
and protect such interest.
Each Opinion of Counsel referred to in clause (h)(l) or (h)(2) above
shall specify any action necessary (as of the date of such opinion) to be taken
in the following year to preserve and protect such interest.
(i) The Depositor shall, to the extent required by applicable law,
cause the 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, as amended, within the time periods specified in such sections, and
shall prepare and make all filings required by such Act with respect to the
Trust.
(j) For the purpose of facilitating the execution of this Agreement 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 all of which counterparts shall constitute but one and the same instrument.
SECTION 17.3. Limitation on Rights of Certificateholders. (a) The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder'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.
(b) No Certificateholder shall have any right to vote (except as
provided in Section 17.1 or 18.4) 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 in this Agreement set forth or contained in the
terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person by
reason of any action taken pursuant to any provision of this Agreement.
(c) No Certificateholder 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,
unless such Holder previously shall have given to the Trustee a written notice
of default and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of Certificates evidencing not less than 25% of the Certificate
Balance shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee under this Agreement and
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby,
and the Trustee, for 30 days after its receipt of such and offer of indemnity,
shall have neglected or refused to institute any such action, suit or proceeding
and during such 30-day period no direction inconsistent with such written
request has been given to the Trustee pursuant to this Section 17.3 or Section
14.4; no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or them selves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the Holders of any
other of the Certificates, 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 Certificateholders. For the protection and
enforcement of the provisions of this Section 17.3, each Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 17.4. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
SECTION 17.5. Notices. All demands, notices and communications under
this Agreement shall be in writing, personally delivered or mailed by certified
mail, return receipt requested, or by overnight courier or telecopied (with the
original followed by mail within 24 hours) and shall be deemed to have been duly
given upon receipt (a) in the case of the Depositor, at the following address:
The CIT Group Securitization Corporation II, [address], or at such other address
as shall be designated by the Depositor in a written notice to the Trustee, (b)
in the case of the Servicer, at the following address: The CIT Group / Sales
Financing, Inc., [address], or at such other address as shall be designated by
the Servicer in a written notice to the Trustee, (c) in the case of the Trustee,
at the Corporate Trust Office, and (d) in the case of the Surety Bond
Issuer, at [address]. Any notice required or permitted to be mailed 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 shall
receive such notice. All communications and copies of all notices and reports
from the Trustee or the Servicer shall be mailed to each Rating Agency at the
following addresses:
▇▇▇▇▇'▇ Investors Services, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇ ▇▇▇▇▇)
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ABS Monitoring Department
Standard & Poor's Ratings Services
▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇)
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Asset-Backed Surveillance Group
SECTION 17.6. Severability of Provisions. If any 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 17.7. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 16.3 and 17.3 and as provided
in the provisions of this Agreement concerning the resignation of the Servicer,
this Agreement may not be assigned by the Depositor or the Servicer without the
prior written consent of the Trustee, the Holders of Certificates evidencing not
less than 66% of the Certificate Balance and the Surety Bond Issuer, provided
that the consent of Surety Bond Issuer shall not be unreasonably withheld.
SECTION 17.8. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Trust.
The interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever, and, upon
authentication thereof by the Trustee pursuant to Section 11.2 or 15.3,
Certificates shall be deemed fully paid.
SECTION 17.9. No Petition. Neither the Trustee nor the Servicer will
not institute against, or join any other Person in instituting against, the
Depositor or the Trust any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding, or other proceeding under any federal or state
bankruptcy or similar law, until __________, ____.
IN WITNESS WHEREOF, the Depositor, the Servicer, the Trustee and the
Collateral Agent have caused this Agreement to be duly executed by their
respective officers as of the day and year first above written.
THE CIT GROUP SECURITIZATION CORPORATION II,
as Depositor
By:
Name:
Title:
THE CIT GROUP / SALES FINANCING, INC.,
as Servicer
By:
Name:
Title:
[ ],
as Trustee and as Collateral Agent
By:
Name:
Title:
SCHEDULE A
Schedule of Receivables
EXHIBIT A
[FORM OF SURETY BOND]
EXHIBIT B:
FORM OF CERTIFICATE
Front
CIT MARINE TRUST ____-_
CIT MARINE TRUST ____-_
[____]% MARINE RECEIVABLE-BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of retail installment sale
contracts secured by new and used boats, boat motors and boat trailers,
and sold or caused to be sold to the Trust by The CIT Group
Securitization Corporation II.
(This Certificate does not represent an interest in or
obligation of The CIT Group / Sales Financing, Inc., The CIT Group
Securitization Corporation II or any affiliate thereof, except to the
extent described below.)
NUMBER CUSIP
FINAL SCHEDULED DISTRIBUTION DATE: $
THIS CERTIFIES THAT is the registered owner of a $__________ dollars
nonassessable, fully-paid, fractional undivided interest in the CIT Marine Trust
____-_ (the "Trust") formed by The CIT Group Securitization Corporation II, a
Delaware corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement dated as of __________, ____ (the "Agreement")
among the Depositor, The CIT Group / Sales Financing Inc., as Servicer, and [ ],
as Trustee (the "Trustee") and as Collateral Agent (the "Collateral Agent"), 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 Agreement. This Certificate is one of the
duly authorized Certificates designated as "CIT Marine Trust ____-_ [____]%
Marine Receivable-Backed Certificates" (herein called the "Certificates"). This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement, as amended from time to time,
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 retail
installment sale contracts (the "Receivables") secured by new and
used boats, boat motors and boat trailers ("Boats"), all payments (other than
late fees and certain other amounts) received thereunder, in the case of Simple
Interest Receivables, and due thereunder, in the case of Precomputed Receivables
after __________, ____, the interest of the Depositor in the security interests
in the Boats, such amounts as may be held from time to time in certain trust
accounts, the Surety Bond, any property that shall have secured a Receivable and
that shall have been acquired by the Trustee, the Purchase Agreement, proceeds
from claims on physical damage, credit life and disability insurance policies
covering Boats, or the Obligors as the case may be, the interests of the
Depositor in any proceeds from recourse to Dealers on the Receivables, and the
proceeds of all of the foregoing.
Under the Agreement, there will be distributed on the 15th day of each
month or, if such 15th day is not a Business Day, the next Business Day (the
"Distribution Date"), commencing on __________, ____, to the person in whose
name this Certificate is registered at the close of business on the Business Day
prior to such Distribution Date (the "Record Date"), such Certificateholder's
fractional undivided interest in the Monthly Interest Payment, any Carry-Over
Monthly Interest, the Monthly Principal Payment and any Carry-Over Monthly
Principal, all as more specifically set forth in the Agreement. On the Final
Scheduled Distribution Date, each Certificateholder shall be entitled to receive
an amount equal to the Monthly Interest Payment and an amount necessary to
reduce the Certificate Balance to zero.
Distributions on this Certificate will be made by the Trustee by check or money
order mailed to the Person entitled thereto without the presentation or
surrender of this Certificate or the making of any notation hereon. Except as
otherwise provided in the Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Trustee of
the pendency of such distribution and only upon presentation and surrender of
this Certificate at the office or agency maintained for that purpose by the
Trustee in the Borough of Manhattan, The City of New York.
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 this Certificate is presented by an authorized representative of The
Depository Trust Company to the Trustee or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of CEDE & CO. or such other name as requested by an authorized
representative of The Depository Trust Company and any payment is made to CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, CEDE & CO., has an
interest herein.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Trustee, by manual or facsimile
signature, this Certificate shall not entitle the holder hereof to any benefit
under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Certificate to be duly executed.
DATED: CIT MARINE TRUST ____-_
By: [ ],
as Trustee
By:
Name:
Title:
Authenticated:
[ ],
as Trustee
By:
Name:
Title:
Reverse
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the Servicer, the Trustee or any affiliate of any of them. The
Certificates are limited in right of payment as more specifically set forth in
the Agreement. A copy of the Agreement may be examined during normal business
hours at the principal office of the Depositor, and at such other places, if
any, designated by the Depositor, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Agreement at any
time by the Depositor and the Trustee with the consent of the Surety Bond Issuer
and without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Trustee in its capacity as Certificate
Registrar, or by any successor Certificate Registrar, in the Borough of
Manhattan, The City of New York, accompanied by a written instrument of transfer
in form satisfactory to the Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new certificates of authorized denominations evidencing
the same aggregate interest in the Trust will be issued to the designated
transferee. The Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples hereof. As
provided in the 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. No service charge will be made for any such registration
of transfer or exchange, but the Trustee may require payment of a sum sufficient
to cover any tax or governmental charges payable in connection therewith.
The Trustee, the Certificate Registrar and any agent of the Trustee or
the Certificate Registrar may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Trustee, the
Certificate Registrar, nor any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the 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 Agreement and the
disposition of all property held as part of the Trust. The Servicer may at its
option purchase the corpus of the Trust at a price specified in the Agreement,
and such purchase of the Receivables and other property of the Trust will effect
early retirement of the Certificates; however, such right of purchase is
exercisable only as of the last day of a Collection Period as of which the Pool
Balance is equal to or less than __% of the Original Pool Balance.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
(Please print or typewrite name and address, including postal zip code,
and taxpayer I.D. or Social Security Number of assignee)
the within certificate, and all rights thereunder, hereby irrevocably
constituting and appointing Attorney to transfer said Certificate on the books o
f the Certificate Registrar, with full power of substitution in the premises.
Dated: * Signature Guaranteed:
By:
Name:
Title:
* 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 of the New York Stock Exchange or a commercial
bank or trust company.
EXHIBIT C
[FORM OF DEPOSITORY AGREEMENT]
EXHIBIT D
THE CIT GROUP / SALES FINANCING, INC.
MONTHLY SERVICER REPORT
CURRENT DATE: __________
I. Monthly Principal Payment:
(A) Principal received from Obligors:
(1) Total principal collected $
(2) Percent relating to Unsold Contracts $
(3) Principal owed to Trust $
(B) Purchased Receivables $
(C) Liquidation Proceeds $
II. Principal to Investors:
(A) Principal Balance at beginning of month $
(B) Certificate Factor at beginning of month $
(C) Principal Balance at end of month $
(D) Monthly principal due investors $
(E) Carry-Over Monthly Principal $
III. Monthly Interest Payment:
(A) Principal Balance at beginning of month $
(B) Pass-Through Rate % $
(C) Monthly Interest Payment $
(D) Carry-Over Monthly Interest $
IV. Draw on Reserve Account and Surety Bond:
(A) Total Available Funds equals:
(1) Principal received from Obligors (or Dealers and
insurers on non-Defaulted Receivables), plus $
(2) Interest received from Obligors, plus $
(3) Cash received from Depositor/Servicer on
Purchased Receivables, plus $
(4) Liquidation Proceeds, plus $
(5) Interest on Collection Account $
(6) Total Available Funds $
(B) Total Distributions equal:
(1) Monthly Interest Payment and any carry-over
Monthly Interest Payment $
(2) Monthly Servicing Fee and any carry-over,
plus Monthly Servicing Fee
(if CITSF is not the Servicer), plus $
(3) Monthly Principal Payment and any carry-over
Monthly Principal Payment $
(4) Total Distributions $
(C) Total Surplus/(Deficiency) (IV(A)-IV(B)) $
(D) Reserve Account balance $
(E) Reserve Account withdrawal $
(F) Surety Bond demand $
V. Monthly Servicing Fee and any carry-over Monthly Servicing Fee
(if CITSF is the Servicer) $
VI. Reconciliation of Reserve Account:
(A) Beginning Reserve Account balance $
(B) Interest on Reserve Account $
(C) Amounts paid to Reserve Account under
the Pooling and Servicing Agreement $
(D) Reserve Account withdrawal $
(E) Reserve Account prior to release of excess $
(F) Required Reserve Account balance:
(1) As percent of Principal Balance $
(2) Minimum Reserve Account balance $
(3) Required amount $
(G) Release of excess $
(H) Ending Reserve Account balance $
VII. Delinquency/Charge-off Experience:
(A) Principal Balance at end of month $
(B) Number of Units $
(C) Delinquency $ #
30-59 Days $
60-89 Days $
90+ Days $
TOTAL $
(D) As % of EOM Outstanding
(E) Receivables charged-of during month$
(F) Recoveries of Receivables previously charged-off $
(G) Net loss during month $
(H) Annualized monthly net loss rate $
EXHIBIT E
THE CIT GROUP / SALES FINANCING, INC.
CERTIFICATEHOLDER STATEMENT
A-C (Per $1,000 Initial Balance):
(A) The amount of the Certificateholder's distribution
which constitutes the Monthly Principal Payment
(including any Carry-Over Monthly Principal) $
(B) The amount of the Certificateholder's distribution which constitutes
the Monthly Interest Payment
(including any Carry-Over Monthly Interest) $
(C) The Certificateholder's pro rata portion of the
Servicing Fee(including any Carry-Over Monthly Servicing Fee) $
(D) Certificate Balance as of Record Date $
(E) Certificate Factor as of Record Date $
EXHIBIT F-1
Trustee's Certificate
pursuant to Section 15.3 of the Pooling and Servicing Agreement
[ ], as trustee (the "Trustee") of the CIT Marine Trust ____-_ created
pursuant to the Pooling and Servicing Agreement (the "Agreement") dated as of
__________, ____, among The CIT Group Securitization Corporation II, as
Depositor (the "Depositor"), The CIT Group / Sales Financing, Inc., as Servicer,
and the Trustee, does hereby sell, transfer, assign and otherwise convey to the
Depositor, without recourse, representation or warranty, all the Trustee's
right, title and interest in and to all the Receivables (as defined in the
Agreement) identified in the attached Servicer's Certificate as "Purchased
Receivables," which are to be repurchased by the Depositor pursuant to Section
8.2 of the Agreement and all security and documents relating thereto.
IN WITNESS WHEREOF I have hereunto set my hand this ____ day of ____.
Name:
Title:
EXHIBIT F-2
Trustee's Certificate
pursuant to Section 15.3 of the Pooling and Servicing-Agreement
[ ], as trustee (the "Trustee") of the CIT Marine Trust ____-_ created
pursuant to the Pooling and Servicing Agreement (the "Agreement") dated as of
__________, ____, among The CIT Group Securitization Corporation II, as
Depositor, The CIT Group / Sales Financing, Inc., as Servicer (the "Servicer"),
and the Trustee, does hereby sell, transfer, assign and otherwise convey to the
Servicer, without recourse, representation or warranty, all the Trustee's right,
title and interest in and to all the Receivables (as defined in the Agreement)
identified in the attached Servicer's Certificate as "Purchased Receivables,"
which are to be purchased by the Servicer pursuant to Section 9.7 or Section
16.2 of the Agreement, and all security and documents relating thereto.
IN WITNESS WHEREOF I have hereunto set my hand this ____ day of ____.
Name:
Title:
