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TRUST AGREEMENT
BETWEEN
THE CIT GROUP SECURITIZATION CORPORATION II
SELLER
AND
THE BANK OF NEW YORK (DELAWARE)
OWNER TRUSTEE
DATED AS OF February 1, 1996
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE.........................1
SECTION 1.1 Definitions..................................................1
ARTICLE II ORGANIZATION......................................................1
SECTION 2.1 Name........................................................1
SECTION 2.2 Office......................................................1
SECTION 2.3 Purposes and Powers.........................................1
SECTION 2.4 Appointment of Owner Trustee................................2
SECTION 2.5 Initial Capital Contribution of Owner Trust Estate..........2
SECTION 2.6 Declaration of Trust........................................2
SECTION 2.8 Title to Trust Property.....................................4
SECTION 2.9 Situs of Trust..............................................4
SECTION 2.10 Representations and Warranties of the Seller................4
SECTION 2.11 Representations and Warranties of the Holder
of the GP Interest..........................................5
SECTION 2.12 Tax Treatment...............................................6
ARTICLE III THE CERTIFICATES................................................7
SECTION 3.1 Initial Certificate Ownership...............................7
SECTION 3.2 Form of the Certificates....................................7
SECTION 3.3 Execution, Authentication and Delivery......................7
SECTION 3.4 Registration; Registration of Transfer and Exchange
of Certificates.............................................8
SECTION 3.5 Mutilated; Destroyed; Lost or Stolen Certificates...........9
SECTION 3.6 Persons Deemed Certificateholders..........................10
SECTION 3.7 Access to List of Certificateholders' Names
and Addresses..............................................10
SECTION 3.8 Maintenance of Corporate Trust Office......................10
SECTION 3.9 Appointment of Paying Agent................................10
SECTION 3.10 Disposition by the Holder of the GP Interest...............11
SECTION 3.11 Book-Entry Certificates....................................11
SECTION 3.12 Notices to Depository......................................12
SECTION 3.13 Definitive Certificates....................................12
SECTION 3.14 Seller as Certificateholder................................13
ARTICLE IV ACTIONS BY OWNER TRUSTEE........................................14
SECTION 4.1 Prior Notice to Certificateholders with Respect to
Certain Matters............................................14
SECTION 4.2 Action by Certificateholders with Respect to
Certain Matters............................................14
SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy....15
SECTION 4.4 Restrictions on Certificateholders' Power..................15
SECTION 4.5 Majority Control...........................................15
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.......................16
SECTION 5.1 Establishment of Accounts..................................16
SECTION 5.2 Application of Trust Funds.................................16
SECTION 5.3 Method of Payment..........................................17
SECTION 5.4 Accounting and Reports to the Certificateholders.
The Internal Revenue Service and Others....................18
SECTION 5.5 Signature on Returns; Tax Matters Partner..................18
ARTICLE VI THE OWNER TRUSTEE...............................................19
SECTION 6.1 Duties of Owner Trustee....................................19
SECTION 6.2 Rights of Owner Trustee....................................20
SECTION 6.3 Acceptance of Trusts and Duties............................20
SECTION 6.4 Action Upon Instruction by Certificateholders..............22
SECTION 6.5 Furnishing of Documents....................................22
SECTION 6.6 Representations and Warranties of Owner Trustee............22
SECTION 6.7 Reliance; Advice of Counsel................................23
SECTION 6.8 Owner Trustee May Own Certificates and Notes...............24
SECTION 6.9 Compensation and Indemnity.................................24
SECTION 6.10 Replacement of Owner Trustee...............................24
SECTION 6.11 Merger or Consolidation of Owner Trustee...................26
SECTION 6.12 Appointment of Co-Trustee or Separate Trustee..............26
SECTION 6.13 Eligibility Requirements for Owner Trustee.................27
ARTICLE VII TERMINATION OF TRUST AGREEMENT.................................28
SECTION 7.1 Termination of Trust Agreement.............................28
SECTION 7.2 Dissolution upon Bankruptcy of the Holder
of the GP Interest.........................................30
ARTICLE VIII AMENDMENTS......................................................31
SECTION 8.1 Amendments Without Consent of Certificateholders
or Noteholders.............................................31
SECTION 8.2 Amendments With Consent of Certificateholders
and Noteholders............................................31
SECTION 8.3 Form of Amendments.........................................31
ARTICLE IX MISCELLANEOUS.....................................................33
SECTION 9.1 No Legal Title to Owner Trust Estate.......................33
SECTION 9.2 Limitations on Rights of Others............................33
SECTION 9.3 Notices....................................................33
SECTION 9.4 Severability...............................................34
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SECTION 9.5 Counterparts...............................................34
SECTION 9.6 Successors and Assigns.....................................34
SECTION 9.7 No Petition Covenant.......................................34
SECTION 9.8 No Recourse................................................34
SECTION 9.9 Headings...................................................34
SECTION 9.10 Governing Law..............................................34
SECTION 9.11 Certificate Transfer Restrictions..........................35
SECTION 9.12 Indemnification by the Servicer............................35
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TRUST AGREEMENT, dated as of February 1, 1996, between THE CIT GROUP
SECURITIZATION CORPORATION II, a Delaware corporation, as Seller, and The Bank
of New York (Delaware), a Delaware banking corporation, as Owner Trustee.
The Seller and the Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Certain capitalized terms used in this Agreement
shall have the respective meanings assigned to them in the Sale and Servicing
Agreement of even date herewith, among the Seller, the Servicer and the Trust
(the "Sale and Servicing Agreement"). All references herein to "the Agreement"
or "this Agreement" are to the Trust Agreement, and all references herein to
Articles, Sections and subsections are to Articles, Sections and subsections of
this Agreement unless otherwise specified.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name. The Trust created hereby shall be known as "CIT RV Owner
Trust 1996-A" in which name the Owner Trustee may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and ▇▇▇ and be sued on behalf of the Trust.
SECTION 2.2 Office. The office of the Trust shall be in care of the Owner
Trustee at the Corporate Trust Office or at such other address as the Owner
Trustee may designate by written notice to the Certificate Owners and the
Seller.
SECTION 2.3 Purposes and Powers. The purpose of the Trust is to engage in
the following activities:
(i) to issue the Notes pursuant to the Indenture and the Certificates
pursuant to this Agreement, and to sell, transfer or exchange the Notes and
the Certificates;
(ii) with the proceeds of the sale of the Notes and the Certificates
to fund the Capitalized Interest Account and the Pre-Funding Account and to
pay the organizational, start-up and transactional expenses of the Trust
and to pay the balance of the proceeds to the Seller pursuant to the Sale
and Servicing Agreement;
(iii) to acquire, manage and hold the Contracts;
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(iv) to assign, grant, transfer, pledge, mortgage and convey the Trust
Estate pursuant to the terms of the Indenture and to hold, manage and
distribute to the Certificate Owners pursuant to the terms of this
Agreement and the Sale and Servicing Agreement any portion of the Trust
Estate released from the lien of, and remitted to the Trust pursuant to,
the Indenture;
(v) to enter into and perform its obligations and exercise its rights
under the Basic Documents to which it is to be a party;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith;
(vii) to hold and administer the Certificate Distribution Account and
Cash Collateral Account and apply the proceeds thereof as provided in the
Sale and Servicing Agreement;
(viii) to acquire Subsequent Contracts from the Seller from time to
time with funds on deposit in the Pre-Funding Account; and
(ix) subject to compliance with the Basic Documents, to engage in such
other activities as may be required in connection with conservation of the
Owner Trust Estate and the making of distributions to the
Certificateholders and the Noteholders.
The Trust is hereby authorized to engage in the foregoing activities and shall
not engage in any activity other than in connection with the foregoing or other
than as required or authorized by the terms of this Agreement or the Basic
Documents.
SECTION 2.4 Appointment of Owner Trustee. The Seller hereby appoints the
Owner Trustee as trustee of the Trust effective as of the date hereof, to have
all the rights, powers and duties set forth herein.
SECTION 2.5 Initial Capital Contribution of Owner Trust Estate. The Seller
hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee, as
of the date hereof, the sum of $10. The Owner Trustee hereby acknowledges
receipt in trust from the Seller, as of the date hereof, of the foregoing
contribution, which shall constitute the initial Owner Trust Estate and shall be
deposited in the Certificate Distribution Account.
SECTION 2.6 Declaration of Trust. The Owner Trustee hereby declares that it
shall hold the Owner Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificate Owners, subject to
the obligations of the Trust under the Basic Documents. It is the intention of
the parties hereto that the Trust constitute a business trust under the Business
Trust Statute and that this Agreement constitute the governing instrument of
such business trust. It is the intention of the parties hereto that, solely for
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purposes of federal income taxes, state and local income and franchise taxes and
any other taxes imposed upon, measured by, or based upon gross or net income,
the Trust shall be treated as a partnership. The parties agree that, unless
otherwise required by appropriate tax authorities, the Trust shall file or cause
to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as a partnership for such tax
purposes. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and in the Business Trust Statute
with respect to accomplishing the purposes of the Trust.
SECTION 2.7 Transfer of Interest to The CIT GP Corporation II; Liability of
The CIT GP Corporation II.
(a) On the Closing Date, the Seller shall and does hereby transfer and
assign its entire interest in the Trust to The CIT GP Corporation II and The CIT
GP Corporation II shall otherwise in addition purchase at least a 1% interest in
the Trust (the "GP Interest"). The holder of the GP Interest (which initially
shall be The CIT GP Corporation II) shall pay organizational expenses of the
Trust as they may arise or shall, upon the request of the Owner Trustee,
promptly reimburse the Owner Trustee for any such expenses paid by the Owner
Trustee. The holder of the GP Interest shall be liable directly to and shall
indemnify the injured party for all losses, claims, damages, liabilities and
expenses of the Trust (including Expenses, to the extent not paid out of the
Owner Trust Estate) to the extent that the holder of the GP Interest would be
liable if the Trust were a partnership under the Delaware Revised Uniform
Limited Partnership Act in which the holder of the GP Interest were a general
partner; provided, however, that the holder of the GP Interest shall not be
liable for (i) any losses incurred by a Certificateholder or a Certificate Owner
in its capacity as an investor in the Certificates or by a Noteholder or Note
Owner in its capacity as an investor in the Notes, (ii) any losses, claims,
damages, liabilities and expenses arising out of the imposition by any taxing
authority of any federal, state or local income or franchise taxes, or any other
taxes imposed on or measured by gross or net income, gross or net receipts,
capital, net worth and similar items (including any interest, penalties or
additions with respect thereto) upon the Certificateholders, the Certificate
Owners, the Noteholders, the Note Owners, the Owner Trustee or the Indenture
Trustee (including any liabilities, costs or expenses with respect thereto) with
respect to the Contracts not specifically indemnified or represented to
hereunder or (iii) any obligations or liabilities of the Trust or the Owner
Trustee under, in connection with or pursuant to the Cash Collateral Agreement.
In addition, any third party creditors of the Trust (other than in connection
with the obligations described in the preceding sentence for which the holder of
the GP Interest shall not be liable) shall be deemed third party beneficiaries
of this subsection 2.7(a). The obligations of the holder of the GP Interest
under this subsection 2.7(a) shall be evidenced by the Certificates issued
pursuant to Section 3.10, which for purposes of the Business Trust Statute shall
be deemed to be a separate class of Certificates from all other Certificates
issued by the Trust; provided, however, that the rights and obligations
evidenced by all Certificates, regardless of class, shall, except as provided in
this subsection 2.7(a), be identical.
(b) No Certificate Owner, other than to the extent set forth in subsection
2.7(a) with respect to the holder of the GP Interest, shall have any personal
liability for any liability or obligation of the Trust.
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(c) No Certificate Owner, including the holder of the GP Interest, shall
have the right to exercise any control of the Trust other than to the extent of
its percentage ownership of the Certificates as provided herein.
SECTION 2.8 Title to Trust Property. Legal title to all the Owner Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be, for the benefit of the Trust.
SECTION 2.9 Situs of Trust. The Trust shall be located and administered in
the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or the State of
New York. The Trust shall not have any employees in any state other than
Delaware or New York; provided, however, that nothing herein shall restrict or
prohibit the Owner Trustee from having employees within or without the State of
Delaware. Payments shall be received by the Trust only in Delaware or New York,
and payments will be made by the Trust only from Delaware or New York. The
principal office of the Trust shall be the Corporate Trust Office in Delaware.
SECTION 2.10 Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Owner Trustee, as of the Closing Date,
that:
(a) The Seller has been organized and is validly existing as a corporation
in good standing under the laws of the State of Delaware, with power and
authority to own its properties and conduct its business as such properties are
presently owned and such business is presently conducted and had at all relevant
times, and now has, power, authority and legal right to acquire and own the
Contracts.
(b) The Seller is duly qualified to do business as a foreign corporation in
good standing, and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the conduct of its
business requires such qualifications.
(c) The Seller has the power and authority to execute and deliver this
Agreement and to carry out its terms, the Seller has full power and authority to
sell and assign the property to be sold and assigned to and deposited with, as
part of, the Trust and the Seller has duly authorized such sale and assignment
to the Trust by all necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the Seller by all
necessary corporate action.
(d) The consummation of the transactions contemplated by this Agreement and
the fulfillment of the terms of this Agreement do not conflict with, result in
any breach of any of the terms and provisions of or constitute (with or without
notice or lapse of time) a default under its certificate of incorporation or
by-laws of the Seller, or any indenture, agreement or other instrument to which
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the Seller is a party or by which it is bound, or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than pursuant to or as
contemplated by the Basic Documents), or violate any law or, to the best of its
knowledge, any order, rule or regulation applicable to the Seller of any court
or of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or any of its
properties.
SECTION 2.11 Representations and Warranties of the Holder of the GP
Interest. The CIT GP Corporation II, as intended holder of the GP Interest,
hereby represents and warrants to the Owner Trustee, as of the Closing Date,
that:
(a) It has been duly organized and is validly existing as a corporation in
good standing under the laws of the State of Illinois, with power and authority
to own its properties and to conduct its business as such properties are
presently owned and such business is presently conducted.
(b) It is duly qualified to do business as a foreign corporation in good
standing, and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the conduct of its
business requires such qualifications.
(c) It has the power and authority to execute and deliver this Agreement
and to carry out its terms and the execution, delivery and performance of this
Agreement has been duly authorized by all necessary corporate action.
(d) The consummation of the transactions contemplated by this Agreement and
the fulfillment of the terms of this Agreement do not conflict with, result in
any breach of any of the terms and provisions of or constitute (with or without
notice or lapse of time) a default under its certificate of incorporation or
by-laws, or any indenture, agreement or other instrument to which it is a party
or by which it is bound, or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than pursuant to or as contemplated by the
Basic Documents), or violate any law or, to the best of its knowledge, any
order, rule or regulation applicable to the Seller of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the it or any of its properties.
(e) It has been duly capitalized by the delivery of a demand note (the
"Demand Note") from The CIT Group Holdings, Inc. ("CIT"), which Demand Note has
not been canceled, waived or terminated. The proceeds of such Demand Note have
not been used and will not be used to pay (i) any of the expenses of the holder
of the GP Interest in connection with the transfer contemplated by the Basic
Documents or (ii) the purchase price for such Certificates purchased pursuant to
Section 2.7. Such Demand Note is enforceable against CIT, subject to its terms,
and subject to the applicable bankruptcy, insolvency, moratorium, fraudulent
conveyance, reorganization and similar laws now or hereafter in effect relating
to creditors' rights generally and subject to the general principles of equity
(whether applied in a proceeding at law or in equity).
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SECTION 2.12 Tax Treatment. Net income of the Trust for any month as
determined for Federal income tax purposes (and each item of income, gain, loss,
credit and deduction entering into the computation thereof) shall be allocated
as determined by the Servicer as follows:
(a) to the extent of available net income, among the
Certificateholders as of the first Record Date following the end of such
month, in proportion to their ownership of principal amount of Certificates
on such date, an amount of net income up to the sum of (i) the amount of
monthly interest at the Pass-Through Rate to which the Certificateholders
are entitled to for the related Due Period, (ii) interest on the excess, if
any, of the amount of interest and principal due to the Certificateholders
for the preceding Distribution Date over the amount in respect of interest
at the Pass-Through Rate that is actually deposited in the Certificate
Distribution Account on such preceding Distribution Date, to the extent
permitted by law, at the Pass-Through Rate from such preceding Distribution
Date through the current Distribution Date, and (iii) the portion of the
market discount, if any, on the Contracts accrued during such month that is
allocable to the excess of the initial aggregate principal amount, if any,
of the Certificates over their initial aggregate issue price; and
(b) to the holder of the GP Interest, to the extent of any remaining
net income.
If the net income of the Trust for any month is insufficient for the allocations
described in clause (a) above, subsequent net income shall first be allocated to
make up such shortfall before being allocated as provided in clause (b). Net
losses of the Trust, if any, for any month as determined for Federal income tax
purposes (and each item of income, gain, loss, credit and deduction entering
into the computation thereof) shall be allocated to the holder of the GP
Interest to the extent the holder of the GP Interest is reasonably expected, as
determined by the Servicer, to bear the economic burden of such net losses, then
net losses shall be allocated among the Certificateholders as of the first
Record Date following the end of such month in proportion to their ownership of
principal amount of Certificates on such Record Date until the principal balance
of the Certificates is reduced to zero. The holder of the GP Interest is
authorized to modify the allocations in this paragraph if necessary or
appropriate, in its sole discretion, for the allocations to fairly reflect the
economic income, gain or loss to the holder of the GP Interest, the
Certificateholders, or as otherwise required by the Code.
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ARTICLE III
THE CERTIFICATES
SECTION 3.1 Initial Certificate Ownership. Upon the formation of the Trust
by the contribution by the Seller pursuant to Section 2.5 and until the issuance
of the Certificates, the Seller shall be the sole beneficiary of the Trust.
SECTION 3.2 Form of the Certificates.
(a) The Certificates shall be substantially in the form set forth in
Exhibit A and shall be issued in minimum denominations of $20,000 and in
integral multiples of $1,000 in excess thereof; provided, however, that (a)
Certificates may be issued to the holder of the GP Interest pursuant to Section
2.7 in such denominations as to represent at least 1% of the initial Certificate
Balance and (b) one Certificate may be issued in a denomination other than an
integral multiple of $1,000. The Certificates shall be executed on behalf of the
Trust by manual or facsimile signature of a Responsible Officer of the Owner
Trustee. Certificates bearing the manual or facsimile signatures of individuals
who were, at the time when such signatures shall have been affixed, authorized
to sign on behalf of the Trust, shall be valid and binding obligations of the
Trust, notwithstanding that such individuals or any of them shall have ceased to
be so authorized prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of authentication and delivery of such
Certificates.
(b) The Definitive Certificates (as hereinafter defined) shall be
typewritten, printed, lithographed or engraved or produced by any combination of
these methods (with or without steel engraved borders) all as determined by the
officers executing such Certificates, as evidenced by their execution of such
Certificates.
(c) The terms of the Certificates set forth in Exhibit A shall form part of
this Agreement.
SECTION 3.3 Execution, Authentication and Delivery. Concurrently with the
sale of the Initial Contracts to the Trust pursuant to the Sale and Servicing
Agreement, the Owner Trustee shall cause the Certificates in an aggregate
principal amount equal to the initial Certificate Balance to be executed on
behalf of the Trust, authenticated and delivered to or upon the written order of
the Seller, signed by its chairman of the board, its president or any vice
president, without further corporate action by the Seller, in authorized
denominations. No Certificate shall entitle its holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Owner Trustee, or by the Owner Trustee's
authenticating agent, by manual signature. Such authentication shall constitute
conclusive evidence that such Certificate shall have been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication. The Bank of New York is hereby appointed as the Owner Trustee's
authenticating agent.
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SECTION 3.4 Registration; Registration of Transfer and Exchange of
Certificates.
(a) The Certificate Registrar shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 3.8, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Owner Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as provided herein; provided, however, that no
Certificate may be subdivided upon transfer or exchange such that the
denomination of any resulting Certificate is less than $20,000. The Bank of New
York shall be the initial Certificate Registrar. Upon any resignation of a
Certificate Registrar, the Owner Trustee shall promptly appoint a successor or,
if it elects not to make such an appointment, assume the duties of Certificate
Registrar.
(b) Upon surrender for registration or transfer of any Certificate at the
office or agency maintained pursuant to Section 3.8, the Owner Trustee shall
execute on behalf of the Trust, authenticate and deliver (or shall cause its
authenticating agent to authenticate and deliver), in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate amount dated the date of authentication by the
Owner Trustee or any authenticating agent.
(c) At the option of a Holder of Certificates, Certificates may be
exchanged for other Certificates of authorized denominations of a like aggregate
principal amount upon surrender of the Certificates to be exchanged at the
Corporate Trust Office maintained pursuant to Section 3.8. Whenever any
Certificates are so surrendered for exchange, the Owner Trustee shall execute on
behalf of the Trust, authenticate and deliver (or shall cause its authenticating
agent to authenticate and deliver) one or more Certificates dated the date of
authentication by the Owner Trustee or any authenticating agent. Such
Certificates shall be delivered to the Holder making the exchange.
(d) Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the Holder or his attorney duly authorized in writing with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Certificate
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Exchange Act. Each Certificate surrendered for registration of transfer or
exchange shall be canceled and subsequently destroyed by the Owner Trustee or
Certificate Registrar in accordance with its customary practice.
(e) No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
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SECTION 3.5 Mutilated; Destroyed; Lost or Stolen Certificates.
(a) If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Certificate Registrar, the Owner Trustee and the Trust such security or
indemnity as may be required by them to hold each of them harmless, then, in the
absence of notice to the Certificate Registrar or the Owner Trustee that such
Certificate has been acquired by a bona fide purchaser, the Owner Trustee shall
execute on behalf of the Trust and the Owner Trustee shall authenticate and
deliver (or shall cause its authenticating agent to authenticate and deliver),
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a replacement Certificate of a like aggregate principal amount;
provided, however, that if any such destroyed, lost or stolen Certificate, but
not a mutilated Certificate, shall have become or within seven days shall be due
and payable, then instead of issuing a replacement Certificate the Owner Trustee
may pay such destroyed, lost or stolen Certificate when so due or payable.
(b) If, after the delivery of a replacement Certificate or payment in
respect of a destroyed, lost or stolen Certificate pursuant to subsection
3.5(a), a bona fide purchaser of the original Certificate in lieu of which such
replacement Certificate was issued presents for payment such original
Certificate, the Owner Trustee shall be entitled to recover such replacement
Certificate (or such payment) from the Person to whom it was delivered or any
Person taking such replacement Certificate from such Person to whom such
replacement Certificate was delivered or any assignee of such Person, except a
bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Owner Trustee in connection therewith.
(c) In connection with the issuance of any replacement Certificate under
this Section 3.5, the Owner Trustee may require the payment by the Holder of
such Certificate of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Owner Trustee and the Certificate
Registrar) connected therewith.
(d) Any duplicate Certificate issued pursuant to this Section 3.5 in
replacement of any mutilated, destroyed, lost or stolen Certificate shall
constitute an original additional contractual obligation of the Trust, whether
or not the mutilated, destroyed, lost or stolen Certificate shall be found at
any time or be enforced by anyone, and shall be entitled to all the benefits of
this Agreement equally and proportionately with any and all other Certificates
duly issued hereunder.
(e) The provisions of this Section 3.5 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates.
SECTION 3.6 Persons Deemed Certificateholders. Prior to due presentation of
a Certificate for registration of transfer, the Owner Trustee or the Certificate
Registrar may treat the Person in whose name any Certificate shall be registered
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in the Certificate Register as the Certificateholder of such Certificate for the
purpose of receiving distributions pursuant to Article V and for all other
purposes whatsoever, and neither the Owner Trustee nor the Certificate Registrar
shall be affected by any notice to the contrary.
SECTION 3.7 Access to List of Certificateholders' Names and Addresses. The
Owner Trustee shall furnish or cause to be furnished to the Servicer, the Seller
and the holder of the GP Interest, within 15 days after receipt by the Owner
Trustee of a request therefor from the Servicer, the Seller or the holder of the
GP Interest in writing, a list, in such form as the Servicer, the Seller or the
holder of the GP Interest may reasonably require, of the names and addresses of
the Certificateholders as of the most recent Record Date. If three or more
Holders of Certificates or one or more Holder of Certificates evidencing not
less than 25% of the Certificate Balance apply in writing to the Owner Trustee,
and such application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Owner Trustee
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Certificateholders. Each Holder, by receiving and holding a Certificate, shall
be deemed to have agreed not to hold the Seller, the holder of the GP Interest
or the Owner Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
SECTION 3.8 Maintenance of Corporate Trust Office. The Owner Trustee shall
maintain in the Borough of Manhattan, the City of New York, an office or offices
or agency or agencies where Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Owner Trustee
in respect of the Certificates and the Basic Documents may be served. The Owner
Trustee initially designates the offices of The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its principal office for such
purposes. The Owner Trustee shall give prompt written notice to the Seller and
to the Certificateholders of any change in the location of the Certificate
Register or any such office or agency.
SECTION 3.9 Appointment of Paying Agent. The Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution Account
pursuant to Section 5.2 and make withdrawals from the Cash Collateral Account of
amounts to be deposited in the Certificate Distribution Account and amounts, if
any, to be paid to the holder of the GP Interest, in each case pursuant to the
Sale and Servicing Agreement and amounts to be paid to the Cash Collateral
Depositor pursuant to the Cash Collateral Agreement, and the Paying Agent shall
report the amounts of such distributions and withdrawals to the Owner Trustee
and the Servicer. Any Paying Agent shall have the revocable power to withdraw
funds from the Certificate Distribution Account and/or the Cash Collateral
Account for the purpose of making the distributions referred to above. The Owner
Trustee may revoke such power and remove the Paying Agent if the Owner Trustee
determines in its sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect. The Paying
Agent shall initially be The Bank of New York, and any co-paying agent chosen by
the Owner Trustee, and acceptable to the Servicer. The Paying Agent shall be
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permitted to resign as Paying Agent upon 30 days' written notice to the Owner
Trustee. If The Bank of New York shall no longer be the Paying Agent, the Owner
Trustee shall appoint a successor to act as Paying Agent (which shall be an
Eligible Institution). The Owner Trustee shall cause such successor Paying Agent
or any additional Paying Agent appointed by the Owner Trustee to execute and
deliver to the Owner Trustee an instrument in which such successor Paying Agent
or additional Paying Agent shall agree with the Owner Trustee that as Paying
Agent, such successor Paying Agent or additional Paying Agent shall hold all
sums, if any, held by it for payment to the Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be paid
to such Certificateholders. The Paying Agent shall return all unclaimed funds to
the Owner Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Owner Trustee. The provisions of
Sections 6.3, 6.6, 6.7 and 6.9 shall apply to the Owner Trustee also in its role
as Paying Agent (if the Owner Trustee shall also act as Paying Agent), for so
long as the Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
SECTION 3.10 Disposition by the Holder of the GP Interest. On and after the
Closing Date, the holder of the GP Interest shall retain beneficial and record
ownership of Certificates representing at least 1% of the Certificate Balance.
Any attempted transfer of any Certificate that would reduce such interest of the
holder of the GP Interest below 1% of the Certificate Balance shall be void. The
Owner Trustee shall cause any Certificate issued to the Seller to contain a
legend to such effect.
SECTION 3.11 Book-Entry Certificates. The Certificates, upon original
issuance, shall be issued in the form of a typewritten Certificate or
Certificates representing Book-Entry Certificates, to be delivered to The
Depository Trust Company, the initial Depository by or on behalf of the Trust;
provided, however, that one Definitive Certificate may be issued to The CIT GP
Corporation II, as holder of the GP Interest pursuant to Section 2.7. Such
Certificate or Certificates (other than the Definitive Certificate issued to The
CIT GP Corporation II) shall initially be registered on the Certificate Register
in the name of Cede & Co., the nominee of the initial Depository and no
Certificate Owner shall receive a definitive Certificate representing such
Certificate Owner's interest in such Certificate, except as provided in Section
3.13. Unless and until definitive fully registered Certificates (the "Definitive
Certificates") shall have been issued to Certificate Owners pursuant to Section
3.13:
(a) the provisions of this Section 3.11 shall be in full force and effect;
(b) the Certificate Registrar and the Owner Trustee shall be entitled to
deal with the Depository for all purposes of this Agreement (including the
payment of principal of and interest on the Certificates and the giving of
instructions or directions hereunder) as the sole Holder of the Certificate, and
shall have no obligation to the Certificate Owners;
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(c) to the extent that the provisions of this Section 3.11 conflict with
any other provisions of this Agreement, the provisions of this Section 3.11
shall control;
(d) the rights of the Certificate Owners shall be exercised only through
the Depository and shall be limited to those established by law and agreements
between such Certificate Owners and the Depository and/or the Depository
Participants. Pursuant to the Certificate Depository Agreement unless and until
Definitive Certificates are issued pursuant to Section 3.13, the initial
Depository will make book-entry transfers among the Depository Participants and
receive and transmit payments of principal of and interest on the Certificates
to such Depository Participants;
(e) whenever this Agreement requires or permits actions to be taken based
upon instructions or directions of Holders of Certificates evidencing a
specified percentage of the Certificate Balance, the Depository shall be deemed
to represent such percentage only to the extent that it has received
instructions to such effect from Certificate Owners and/or Depository
Participants owning or representing, respectively, such required percentage of
Certificates and has delivered such instructions to the Owner Trustee.
SECTION 3.12 Notices to Depository. Whenever a notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 3.13, the Owner Trustee shall give all such notices and
communications specified herein to be given to Certificateholders to the
Depository and shall have no further obligation to the Certificate Owners,
except to the holder of the GP Interest.
SECTION 3.13 Definitive Certificates. If (i) the Servicer advises the Owner
Trustee in writing that the Depository is no longer willing or able to properly
discharge its responsibilities with respect to the Certificates, and the
Servicer is unable to locate a qualified successor, (ii) the Servicer at its
option advises the Owner Trustee in writing that it elects to terminate the
book-entry system through the Depository, or (iii) after the occurrence of an
Event of Default or an Event of Termination, Certificate Owners representing
beneficial interests aggregating at least a majority of the Certificate Balance
advise the Depository in writing that the continuation of a book-entry system
through the Depository is no longer in the best interest of the Certificate
Owners, then the Depository shall notify all Certificate Owners and the Owner
Trustee of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Owner Trustee of the typewritten Certificate or Certificates
representing the Book-Entry Certificates by the Depository, accompanied by
registration instructions, the Owner Trustee shall execute and authenticate the
Definitive Certificates in accordance with the instructions of the Depository.
Neither the Certificate Registrar nor the Owner Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, the Owner Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders.
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SECTION 3.14 Seller as Certificateholder. The Seller in its individual or
any other capacity may become the owner or pledgee of Certificates and may
otherwise deal with the Owner Trustee or its Affiliates as if it were not the
Seller.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.1 Prior Notice to Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not take action with respect to the following
matters, unless (i) the Owner Trustee shall have notified the Certificateholders
in writing of the proposed action at least 30 days before the taking of such
action, and (ii) the Certificateholders shall not have notified the Owner
Trustee in writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust (except
claims or lawsuit brought in connection with the collection of payments due on
the Contracts) and the compromise of any material action, claim or lawsuit
brought by or against the Trust (except with respect to the aforementioned
claims or lawsuits for collection of payments due on the Contracts);
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Business Trust
Statute);
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholders;
(e) the amendment, change or modification of the Sale and Servicing
Agreement, except to cure any ambiguity or defect or to amend or supplement any
provision in a manner that would not materially adversely affect the interests
of the Certificateholders or in circumstances in which the Sale and Servicing
Agreement expressly provides that the consent of the Certificateholders is not
required; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement of a
successor Certificate Registrar, or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable.
SECTION 4.2 Action by Certificateholders with Respect to Certain Matters.
The Owner Trustee shall not have the power, except upon the written direction of
a majority of the Certificateholders, to (a) remove the Servicer under the Sale
and Servicing Agreement pursuant to Section 9.01 thereof, (b) appoint a
successor Servicer pursuant to Section 9.02 of the Sale and Servicing Agreement,
or (c) except as expressly provided in the Basic Documents, sell the Contracts
or any interest therein after the termination of the Indenture.
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SECTION 4.3 Action by Certificateholders with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Holders of Certificates (including the holder of the GP Interest) and the
delivery to the Owner Trustee by each such Certificateholder of a certificate
certifying that such Certificateholder reasonably believes that the Trust is
insolvent.
SECTION 4.4 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the Basic
Documents or would be contrary to Section 2.3, nor shall the Owner Trustee be
obligated to follow any such direction, if given.
SECTION 4.5 Majority Control. Except as expressly provided herein, any
action that may be taken or consent that may be given or withheld by the
Certificateholders under this Agreement may be taken, given or withheld by the
Holders of Certificates evidencing not less than a majority of the Certificate
Balance. Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by Holders of Certificates evidencing not less than a majority of the
Certificate Balance at the time of the delivery of such notice.
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Establishment of Accounts.
(a) On or prior to the Closing Date, the Trust shall cause the Servicer to
establish and maintain, in the name of the Indenture Trustee or the Owner
Trustee, as appropriate, for the benefit of the Noteholders and
Certificateholders (and, in the case of the Cash Collateral Account, for the
benefit of the Certificateholders and the Cash Collateral Depositor) the
accounts as provided in Section 5.01 of the Sale and Servicing Agreement.
(b) The Owner Trustee shall possess all right, title and interest in and to
all funds on deposit from time to time in the Certificate Distribution Account
and the Cash Collateral Account and in all proceeds thereof. Except as otherwise
provided herein or in the Sale and Servicing Agreement, the Certificate
Distribution Account and the Cash Collateral Account shall be under the sole
dominion and control of the Owner Trustee for the benefit of the
Certificateholders and, in the case of the Cash Collateral Account, for the
benefit of the Certificateholders and the Cash Collateral Depositor, as their
respective interests may appear. If, at any time, the Certificate Distribution
Account or the Cash Collateral Account ceases to be held at an Eligible
Institution, the Owner Trustee (or the Servicer on behalf of the Owner Trustee,
if the Certificate Distribution Account or the Cash Collateral Account is not
then held by the Owner Trustee or an Affiliate thereof) shall within 10 Business
Days (or such longer period, not to exceed 30 calendar days, as to which each
Rating Agency may consent) establish a new Certificate Distribution Account or
Cash Collateral Account at an Eligible Institution and shall transfer any cash
and/or any investments to such new Certificate Distribution Account or Cash
Collateral Account, as the case may be.
SECTION 5.2 Application of Trust Funds.
(a) On each Distribution Date, the Owner Trustee shall (i) transfer or
cause the transfer of amounts on deposit in the Cash Collateral Account to the
Certificate Distribution Account pursuant to Section 5.06 of the Sale and
Servicing Agreement, (ii) transfer and distribute, or cause to be transferred
and distributed, amounts on deposit in the Cash Collateral Account to the holder
of the GP Interest and the Cash Collateral Depositor, respectively, pursuant to
Section 5.06 of the Sale and Servicing Agreement and the applicable provisions
of the Cash Collateral Agreement, respectively, on or prior to such Distribution
Date, and (iii) distribute to the Certificateholders, on a pro rata basis,
amounts deposited in the Certificate Distribution Account pursuant to the Sale
and Servicing Agreement on or prior to such Distribution Date first in respect
of interest and then in respect of principal.
(b) On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement provided to the Owner Trustee by the Servicer
pursuant to Section 5.08 of the Sale and Servicing Agreement on such
Distribution Date setting forth, among other things, the amount of the
distribution allocable to principal and to interest, the Certificate Balance
after giving effect to such distribution, the amount of funds on deposit in the
Pre-Funding Account during the Funding Period, the number and aggregate
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principal balance of Subsequent Contracts purchased by the Trust on the related
Distribution Date during the Funding Period and the Servicer Payment with
respect to such Distribution Date or Monthly Period, as applicable.
(c) If any withholding tax is imposed on the Trust's payment (or
allocations of income) to a Certificateholder, such tax shall reduce the amount
otherwise distributable to the Certificateholder in accordance with this Section
5.2. The Owner Trustee is hereby authorized and directed to retain from amounts
otherwise distributable to the Certificateholders sufficient funds for the
payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Owner Trustee from contesting any such tax in appropriate
proceedings and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Owner Trustee may in its sole discretion withhold such
amounts in accordance with this subsection 5.2(c). If a Certificateholder wishes
to apply for a refund of any such withholding tax, the Owner Trustee shall
reasonably cooperate with such Certificateholder in making such claim so long as
such Certificateholder agrees to reimburse the Owner Trustee for any
out-of-pocket expenses incurred.
(d) If the Indenture Trustee holds escheated funds for payment to the Trust
pursuant to Section 3.3(e) of the Indenture, the Owner Trustee shall, upon
notice from the Indenture Trustee that such funds exist, submit on behalf of the
Trust an Issuer Order to the Indenture Trustee pursuant to Section 3.3(e) of the
Indenture instructing the Indenture Trustee to pay such funds to or at the order
of the Seller.
SECTION 5.3 Method of Payment. Subject to subsection 7.1(c), distributions
required to be made to Certificateholders on any Distribution Date shall be made
to each Certificateholder of record on the immediately preceding Record Date
either by wire transfer, in immediately available funds, to the account of such
Holder at a bank or other entity having appropriate facilities therefor, if (i)
such Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions at least five Business Days prior to such
Record Date and such Holder's Certificates in the aggregate evidence a
denomination of not less than $1,000,000 or (ii) such Certificateholder is the
holder of the GP Interest, or an Affiliate thereof, or, if not, by check mailed
to such Certificateholder at the address of such holder appearing in the
Certificate Register; provided, however, that, unless Definitive Certificates
have been issued pursuant to Section 3.13, with respect to Certificates
registered on the Record Date in the name of the nominee of the Depository
(initially, such nominee to be Cede & Co.), distributions will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Notwithstanding the foregoing, the final distribution in respect of the
Certificates (whether on the Certificate Final Distribution Date or otherwise)
will be payable only upon presentation and surrender of such Certificate at the
office or agency maintained for that purpose by the Owner Trustee pursuant to
Section 3.8.
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SECTION 5.4 Accounting and Reports to the Certificateholders. The Internal
Revenue Service and Others. The Owner Trustee shall (a) maintain (or cause to be
maintained) the books of the Trust on a calendar year basis on the accrual
method of accounting, (b) deliver to each Certificateholder, as may be required
by the Code and applicable Treasury Regulations or otherwise, such information
as may be required to enable each Certificateholder to prepare its federal and
state income tax returns, (c) file such tax returns relating to the Trust and
make such elections as may from time to time be required or appropriate under
any applicable state or federal statute or rule or regulation thereunder so as
to maintain the Trust's characterization as a partnership for federal income tax
purposes, (d) cause such tax returns to be signed in the manner required by law
and (e) collect or cause to be collected any withholding tax as described in and
in accordance with subsection 5.2(c) with respect to income or distributions to
Certificateholders.
SECTION 5.5 Signature on Returns; Tax Matters Partner. The Owner Trustee
shall sign on behalf of the Trust any and all tax returns of the Trust, unless
applicable law requires a Certificateholder to sign such documents, in which
case such documents shall be signed by the holder of the GP Interest. To the
extent one may be required, the holder of the GP Interest shall be the "tax
matters partner" of the Trust pursuant to the Code.
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ARTICLE VI
THE OWNER TRUSTEE
SECTION 6.1 Duties of Owner Trustee.
(a) The Owner Trustee undertakes to perform such duties, and only such
duties, as are specifically set forth in this Agreement and the other Basic
Documents to which the Trust is a party, including the administration of the
Trust in the interest of the Certificateholders, subject to the Basic Documents
and in accordance with the provisions of this Agreement and the Basic Documents
to which the Trust is a party. No implied covenants or obligations shall be read
into this Agreement.
The Owner Trustee is authorized from time to time to take such action as
the Servicer directs in writing with respect to the Basic Documents and shall,
upon the written direction of the Servicer, execute and deliver any amendments
to this Agreement or any of the Basic Documents.
(b) Notwithstanding the foregoing, the Owner Trustee shall be deemed to
have discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Servicer has agreed in the Sale and Servicing
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Basic Document, and the Owner Trustee shall not be liable
for the default or failure of the Servicer to carry out its obligations under
the Sale and Servicing Agreement.
(c) In the absence of bad faith on its part, the Owner Trustee may
conclusively rely upon certificates or opinions furnished to the Owner Trustee
and conforming to the requirements of this Agreement in determining the truth of
the statements and the correctness of the opinions contained therein; provided,
however, that the Owner Trustee shall have examined such certificates or
opinions so as to determine compliance of the same with the requirements of this
Agreement.
(d) The Owner Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this subsection 6.1(d) shall not limit the effect of subsection
6.1(a) or (b);
(ii) the Owner Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that the
Owner Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Owner Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 4.1, 4.2 or 6.4.
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(e) Subject to Sections 5.1 and 5.2, monies received by the Owner Trustee
hereunder need not be segregated in any manner except to the extent required by
law or the Sale and Servicing Agreement and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
(f) The Owner Trustee shall not take any action that (i) is inconsistent
with the purposes of the Trust set forth in Section 2.3 or (ii) would, to the
actual knowledge of a Responsible Officer of the Owner Trustee, result in the
Trust's becoming taxable as a corporation for federal income tax purposes. The
Certificateholders shall not direct the Owner Trustee to take action that would
violate the provisions of this Section 6.1 and any such direction shall be null
and void.
SECTION 6.2 Rights of Owner Trustee. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents and each certificate or
other document attached as an exhibit to or contemplated by the Basic Documents
to which the Trust is to be a party, in such form as the Seller shall approve as
evidenced conclusively by the Owner Trustee's execution thereof. In addition to
the foregoing, the Owner Trustee is authorized, but shall not be obligated, to
take all actions required of the Trust pursuant to the Basic Documents. The
Owner Trustee is further authorized from time to time to take such action as the
Servicer recommends with respect to the Basic Documents.
SECTION 6.3 Acceptance of Trusts and Duties. Except as otherwise provided
in this Article VI, in accepting the trusts hereby created The Bank of New York
(Delaware) acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof. The Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Owner Trust Estate upon the terms of the Basic
Documents and this Agreement. The Owner Trustee shall not be liable or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own negligent action, its own negligent failure to act or its
own willful misconduct or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 6.6 and expressly made by the
Owner Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall at no time have any responsibility or liability
for or with respect to the legality, validity and enforceability of any
Contract, or the perfection and priority of any security interest created by any
Contract in any Financed Vehicle or the maintenance of any such perfection and
priority, or for or with respect to the sufficiency of the Owner Trust Estate or
its ability to generate the payments to be distributed to Certificateholders
under this Agreement or the Noteholders under the Indenture, including, without
limitation: the existence, condition and ownership of any Financed Vehicle; the
existence and enforceability of any insurance thereon; the existence and
contents of any Contract on any computer or other record thereof; the validity
20
of the assignment of any Contract to the Trust or of any intervening assignment;
the completeness of any Contract; the performance or enforcement of any
Contract; the compliance by the Seller or the Servicer with any warranty or
representation made under any Basic Document or in any related document or the
accuracy of any such warranty or representation or any action of the Servicer,
the Trustee or the Servicer or any subservicer taken in the name of the Owner
Trustee.
(b) the Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of the Servicer
or any Certificateholder;
(c) no provision of this Agreement or any Basic Document shall require the
Owner Trustee to expend or risk funds or otherwise incur any financial liability
in the performance of any of its rights or powers hereunder or under any Basic
Document, if the Owner Trustee shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes or the Certificate Balance of and
interest on the Certificates;
(e) the Owner Trustee shall not be responsible for or in respect of and
makes no representation as to the validity or sufficiency of any provision of
this Agreement or for the due execution hereof by the Seller or for the form,
character, genuineness, sufficiency, value or validity of any of the Owner Trust
Estate or for or in respect of the validity or sufficiency of the Basic
Documents, the Notes, the Certificates (other than the certificate of
authentication on the Certificates) or of any Contracts or any related
documents, and the Owner Trustee shall in no event assume or incur any
liability, duty or obligation to any Noteholder, to any Certificateholder or the
Cash Collateral Depositor, other than as expressly provided for herein and in
the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or misconduct of
the Servicer, the Indenture Trustee, the Seller or the Servicer under any of the
Basic Documents or otherwise and the Owner Trustee shall have no obligation or
liability to perform the obligations of the Trust under this Agreement or the
Basic Documents that are required to be performed by the Servicer under the Sale
and Servicing Agreement or the Indenture Trustee under the Indenture; and
(g) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any Basic Document, at the request, order or direction of any of
the Certificateholders, unless such Certificateholders have offered to the Owner
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or thereby. The
right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement or in any Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act.
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SECTION 6.4 Action Upon Instruction by Certificateholders.
(a) Subject to Section 4.4, the Certificateholders may by written
instruction direct the Owner Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the
Certificateholders pursuant to Section 4.5.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be required
to take any action hereunder or under any Basic Document if the Owner Trustee
shall have reasonably determined, or shall have been advised by counsel, that
such action is likely to result in liability on the part of the Owner Trustee or
is contrary to the terms hereof or of any Basic Document or is otherwise
contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
Basic Document, or is unsure as to the application, intent, interpretation or
meaning of any provision of this Agreement or the Basic Documents, the Owner
Trustee shall promptly give notice (in such form as shall be appropriate under
the circumstances) to the Certificateholders requesting instruction as to the
course of action to be adopted, and, to the extent the Owner Trustee acts in
good faith in accordance with any such instruction received, the Owner Trustee
shall not be liable on account of such action to any Person. If the Owner
Trustee shall not have received appropriate instructions within ten days of such
notice (or within such shorter period of time as reasonably may be specified in
such notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action which is consistent,
in its view, with this Agreement or the Basic Documents, and as it shall deem to
be in the best interests of the Certificateholders, and the Owner Trustee shall
have no liability to any Person for any such action or inaction.
SECTION 6.5 Furnishing of Documents. The Owner Trustee shall furnish (a) to
the Certificateholders, promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents and (b) to Noteholders, promptly upon receipt of a
written request therefor, copies of the Purchase Agreement, any Subsequent
Purchase Agreements, the Sale and Servicing Agreement, any Subsequent Transfer
Agreements and this Agreement.
SECTION 6.6 Representations and Warranties of Owner Trustee. The Owner
Trustee hereby represents and warrants to the Seller, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation.
(b) It has full power, authority and legal right to execute, deliver and
perform this Agreement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement.
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(c) The execution, delivery and performance by it of this Agreement (i)
shall not violate any provision of any law or regulation governing the banking
and trust powers of the Owner Trustee or any order, writ, judgment or decree of
any court, arbitrator or governmental authority applicable to the Owner Trustee
or any of its assets, (ii) shall not violate any provision of the corporate
charter or by-laws of the Owner Trustee, or (iii) shall not violate any
provision of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of any lien on any properties
included in the Trust pursuant to the provisions of any mortgage, indenture,
contract, agreement or other undertaking to which it is a party, which
violation, default or lien could reasonably be expected to have a materially
adverse effect on the Owner Trustee's performance or ability to perform its
duties as Owner Trustee under this Agreement or on the transactions contemplated
in this Agreement.
(d) The execution, delivery and performance by the Owner Trustee of this
Agreement shall not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency regulating the
banking and corporate trust activities of banks or trust companies in the
jurisdiction in which the Trust was formed.
(e) This Agreement has been duly executed and delivered by the Owner
Trustee and constitutes the legal, valid and binding agreement of the Owner
Trustee, enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
SECTION 6.7 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper believed by it to be genuine
and believed by it to be signed by the proper party or parties and need not
investigate any fact or matter in any such document. The Owner Trustee may
accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer or other authorized officers of the relevant party, as to such
fact or matter, and such certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the Basic
Documents, the Owner Trustee: (i) may act directly or through its agents,
attorneys, custodians or nominees pursuant to agreements entered into with any
23
of them, and the Owner Trustee shall not be liable for the conduct or misconduct
of such agents, attorneys, custodians or nominees if such agents, attorneys,
custodians or nominees shall have been selected by the Owner Trustee with
reasonable care; and (ii) may consult with counsel, accountants and other
skilled professionals to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the opinion or advice of any such counsel,
accountants or other such Persons and not contrary to this Agreement or any
Basic Document.
SECTION 6.8 Owner Trustee May Own Certificates and Notes. The Owner Trustee
in its individual or any other capacity may become the owner or pledgee of
Certificates or Notes and may deal with the Seller, the Indenture Trustee and
the Servicer in transactions in the same manner as it would have if it were not
the Owner Trustee.
SECTION 6.9 Compensation and Indemnity. The Owner Trustee shall receive as
compensation for its services hereunder such fees as have been separately agreed
upon before the date hereof between the Seller, or any person representing the
Seller, and the Owner Trustee, and the Owner Trustee shall be entitled to be
reimbursed by the Servicer for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, custodians, nominees, representatives, experts and counsel as the Owner
Trustee may employ in connection with the exercise and performance of its rights
and its duties hereunder. If the Seller shall fail to compensate the Owner
Trustee, the Servicer shall pay to the Owner Trustee such compensation. The
Servicer shall indemnify the Owner Trustee and its successors, assigns, agents
and servants in accordance with the provisions of Section 8.02 of the Sale and
Servicing Agreement. The indemnities contained in this Section 6.9 shall survive
the resignation, removal or termination of the Owner Trustee or the termination
of this Agreement. Any amounts paid to the Owner Trustee pursuant to this
Article VI shall be deemed not to be a part of the Owner Trust Estate
immediately after such payment.
SECTION 6.10 Replacement of Owner Trustee.
(a) The Owner Trustee may resign at any time and be discharged from the
trusts hereby created by giving 30 days' prior written notice thereof to the
Servicer, provided that such resignation shall not become effective until a
successor Owner Trustee has been appointed. The Servicer may appoint a successor
Owner Trustee by delivering a written instrument pursuant to Section 6.10(b). If
no successor Owner Trustee shall have been appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee. The Servicer shall remove the Owner
Trustee if:
(i) the Owner Trustee shall cease to be eligible in accordance with
the provisions of Section 6.13 and shall fail to resign after written
request therefor by the Servicer;
(ii) the Owner Trustee shall be adjudged bankrupt or insolvent;
24
(iii) a receiver or other public officer shall be appointed or take
charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation; or
(iv) the Owner Trustee shall otherwise be incapable of acting.
(b) If the Owner Trustee resigns or is removed or if a vacancy exists in
the office of Owner Trustee for any reason the Servicer shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate (one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee) and shall pay all fees owed to the outgoing
Owner Trustee.
(c) Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section 6.10
shall not become effective until a written acceptance of appointment is
delivered by the successor Owner Trustee to the outgoing Owner Trustee and the
Servicer and all fees and expenses due to the outgoing Owner Trustee are paid.
Any successor Owner Trustee appointed pursuant to this Section 6.10 shall be
eligible to act in such capacity in accordance with Section 6.13 and, following
compliance with the preceding sentence, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor under this Agreement,
with like effect as if originally named as Owner Trustee. The Servicer shall
provide notice of such resignation or removal of the Owner Trustee to each of
the Rating Agencies.
(d) The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Agreement. The Servicer and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and obligations.
(e) Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 6.10, the Servicer shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Indenture Trustee, the Noteholders and
the Rating Agencies .
SECTION 6.11 Merger or Consolidation of Owner Trustee. Any corporation into
which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such corporation shall be eligible pursuant to Section 6.13, and without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; provided, however, that the Owner Trustee shall mail notice
of such merger, conversion or consolidation to the Rating Agencies.
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SECTION 6.12 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirement of any jurisdiction in which
any part of the Owner Trust Estate or any Financed Vehicle may at the time be
located, the Servicer and the Owner Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or as separate trustee or trustees, of all or any part of the Owner
Trust Estate, and to vest in such Person, in such capacity, such title to the
Trust, or any part thereof, and, subject to the other provisions of this Section
6.12, such powers, duties, obligations, rights and trusts as the Servicer and
the Owner Trustee may consider necessary or desirable. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request so to do, the Owner Trustee alone shall have the power to make such
appointment. Pursuant to a Co-Trustee Agreement, dated as of February 1, 1996,
between The Bank of New York (Delaware) and The Bank of New York, the Owner
Trustee shall appoint The Bank of New York, as a co-trustee hereunder and such
agreement is hereby incorporated herein by reference. No co-trustee or separate
trustee under this Agreement shall be required to meet the terms of eligibility
as a successor trustee pursuant to Section 6.13 and no notice of the appointment
of any co-trustee or separate trustee shall be required pursuant to Section
6.10.
(b) Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
jointly by the Owner Trustee and such separate trustee or co-trustee (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Servicer and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
26
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
SECTION 6.13 Eligibility Requirements for Owner Trustee. The Owner Trustee
shall at all times: (a) be authorized to exercise corporate trust powers; (b)
have a combined capital and surplus of at least $50,000,000 and be subject to
supervision or examination by federal or state authorities; and (c) have (or
have a parent which has) a long-term unsecured debt rating of at least "BBB" by
Standard & Poor's and have a long-term unsecured debt rating of at least "Baa3"
by ▇▇▇▇▇'▇. If such corporation shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section 6.13, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.13, the Owner Trustee shall
resign immediately in the manner and with the effect specified in Section 6.10.
At all times at least one of the Owner Trustee or the Co-trustee appointed
pursuant hereto shall be a person that satisfies the provisions of Section
3807(a) of the Business Trust Statute (the "Delaware Trustee").
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ARTICLE VII
TERMINATION OF TRUST AGREEMENT
SECTION 7.1 Termination of Trust Agreement.
(a) This Agreement has been entered into in part to induce the Indenture
Trustee and the Certificateholders from time to time to participate in the
transactions contemplated hereby, and each of the Owner Trustee, the holder of
the GP Interest and the Seller agree that the Indenture Trustee (so long as the
Indenture shall not have been terminated in accordance with its terms) and the
Certificateholders from time to time are third party beneficiaries hereof, and
shall be entitled to enforce the terms of this Agreement to the same extent as
if they were signatories hereto, subject, however, to Article IV hereof and to
the applicable provisions of the Indenture. So long as the Indenture shall not
have been terminated in accordance with its terms, this Agreement and the Trust
created hereby are irrevocable by the Owner Trustee and the Seller, unless the
Indenture Trustee and the Certificateholders consent in writing to such
termination. This Agreement (other than Section 6.9) and the Trust shall
terminate and be of no further force or effect on the earlier of: (i) the final
distribution by the Owner Trustee of all monies or other property or proceeds of
the Owner Trust Estate in accordance with the terms of the Indenture, the Sale
and Servicing Agreement (including the exercise by the Servicer of its option to
purchase the Contracts pursuant to Section 11.01 of the Sale and Servicing
Agreement or resulting from the mandatory sale of all Contracts pursuant to
Section 11.02 of the Sale and Servicing Agreement) and Article V, (ii) at the
time provided in Section 7.2 or (iii) twenty-one years less one day after the
death of the last survivor of all of the decedents of the grandparents of ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇ living on the date of the earliest execution of this Agreement by
any party hereto, but if this Agreement and the Trust created hereby shall be or
become authorized under applicable law to be valid for a period commencing on
the twenty-first anniversary of the death of such last survivor (or, without
limiting the generality of the foregoing, if legislation shall become effective
providing for the validity of this Agreement and the Trust created hereby for a
period in gross exceeding the period for which this Agreement and the Trust
created hereby are hereinabove stated to extend and be valid), then this
Agreement and the Trust created hereby shall not terminate under this subsection
(iii), but shall extend to and continue in effect, but only if such
non-termination and extension shall then be valid under applicable law, until
the day proceeding such date as the same shall, under applicable law, cease to
be valid. Upon such termination, all monies or other property or proceeds
constituting part of the Owner Trust Estate shall be distributed in accordance
with the terms of the Agreement. The bankruptcy, liquidation, dissolution, death
or incapacity of any Certificateholder, other than the holder of the GP Interest
as described in Section 7.2, shall not (x) operate to terminate this Agreement
or the Trust, nor (y) entitle such Certificateholder's legal representatives or
heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of all or any part of the Trust or the Owner Trust
Estate nor (z) otherwise affect the rights, obligations and liabilities of the
parties hereto. The bankruptcy, liquidation or dissolution of the Owner Trustee
(or any other beneficiary herewith) will not terminate this Agreement or the
Trust, nor entitle such person's legal representatives or heirs, as appropriate,
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of the Trust or Owner Trust Estate, nor otherwise affect
the rights, obligations and liabilities of the parties hereto. No creditor of
any Certificateholder shall obtain legal title to or exercise legal or equitable
28
remedies with respect to the Owner Trust Estate as a result of such
Certificateholder's holding of the Certificate. No transfer, by operation of law
or otherwise, of any right, title and interest of any Certificateholder in and
to its undivided beneficial interest in the Owner Trust Estate shall operate to
terminate this Agreement or the Trust created hereby.
(b) Except as provided in Section 7.1(a), neither the Seller nor the holder
of the GP Interest nor any Certificateholder shall be entitled to revoke or
terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Distribution
Date upon which the Certificateholders shall surrender their Certificates to the
Paying Agent for payment of the final distribution and cancellation, shall be
given by the Owner Trustee by letter to Certificateholders mailed within five
Business Days of receipt of notice of such termination from the Servicer given
pursuant to Section 11.01 of the Sale and Servicing Agreement, or within five
Business Days of the Owner Trustee receiving notice of such termination from the
Indenture Trustee pursuant to Section 11.02 of the Sale and Servicing Agreement,
stating: (i) the Distribution Date upon or with respect to which final payment
of the Certificates shall be made upon presentation and surrender of the
Certificates at the office of the Paying Agent therein designated; (ii) the
amount of any such final payment; and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the office of the Paying
Agent therein specified. The Owner Trustee shall give such notice to the
Certificate Registrar (if other than the Owner Trustee) and the Paying Agent at
the time such notice is given to Certificateholders. Upon presentation and
surrender of the Certificates, the Paying Agent shall cause to be distributed to
Certificateholders amounts distributable on such Distribution Date pursuant to
Section 5.2.
(d) If all of the Certificateholders shall not surrender their Certificates
for cancellation within six months after the date specified in the above
mentioned written notice, the Owner Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the Certificates shall not have been
surrendered for cancellation, the Owner Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Subject to applicable laws with respect to escheat of
funds, any funds remaining in the Trust after exhaustion of such remedies in the
preceding sentence shall be deemed property of the holder of the GP Interest and
distributed by the Owner Trustee to the holder of the GP Interest.
(e) Upon the winding up of the Trust and its termination, the Owner Trustee
shall cause the Certificate of Trust to be canceled by filing a certificate of
cancellation with the Secretary of State in accordance with the provisions of
Section 3810 of the Business Trust Statute.
SECTION 7.2 Dissolution upon Bankruptcy of the Holder of the GP Interest.
Upon the occurrence of an Insolvency Event with respect to the holder of the GP
29
Interest, this Agreement and the Trust shall be terminated and the Contracts
liquidated in accordance with Section 7.1 unless, within 90 days after such
occurrence, the Owner Trustee shall have received written instructions from (a)
each of the Certificateholders (other than the holder of the GP Interest) and
(b) each of the Noteholders, to the effect that each such party disapproves of
the liquidation of the Contracts and termination of the Trust. Promptly after
the occurrence of any Insolvency Event with respect to the holder of the GP
Interest: (i) the holder of the GP Interest shall give the Indenture Trustee and
the Owner Trustee written notice of such Insolvency Event; (ii) the Owner
Trustee shall, upon the receipt of such written notice from the holder of the GP
Interest, give prompt written notice to the Certificateholders and the Indenture
Trustee of the occurrence of such event and (iii) the Indenture Trustee shall,
upon receipt of written notice of such Insolvency Event from the Owner Trustee
or the holder of the GP Interest, give prompt written notice to the Noteholders
of the occurrence of such event; provided, however, that any failure to give a
notice required by this sentence shall not prevent or delay in any manner a
termination of the Trust pursuant to the first sentence of this Section 7.2. If
no such instructions are received within such 90-day period, the Owner Trustee
shall direct the Indenture Trustee promptly to sell the assets of the Trust
(other than the Designated Accounts and the Cash Collateral Account) in a
commercially reasonable manner and on commercially reasonable terms. The
proceeds of any such sale, disposition or liquidation of the assets of the Trust
shall be treated as collections on the Contracts and deposited in the Collection
Account pursuant to Section 5.02 of the Sale and Servicing Agreement.
30
ARTICLE VIII
AMENDMENTS
SECTION 8.1 Amendments Without Consent of Certificateholders or
Noteholders. This Agreement may be amended by the Seller and the Owner Trustee
without the consent of any of the Noteholders or the Certificateholders (but
with prior written notice to each of the Rating Agencies and in the case of
clauses (iii) and (vi), satisfaction of the Rating Agency Condition), to (i)
correct manifest error or cure any ambiguity, (ii) correct or supplement any
provision in this Agreement that may be inconsistent with any other provision in
this Agreement, (iii) add or amend any provision as requested by Moody's or
Standard & Poor's to maintain or improve the rating of the Notes or
Certificates, (iv) add to the covenants, restrictions or obligations of the
Seller, the holder of the GP Interest, the Owner Trustee or the Indenture
Trustee, (v) evidence and provide for the acceptance of the appointment of a
successor trustee with respect to the Owner Trust Estate and add to or change
any provisions as shall be necessary to facilitate the administration of the
trusts hereunder by more than one trustee pursuant to Article VI and (vi) add,
change or eliminate any other provision of this Agreement provided that an
amendment pursuant to this clause (vi), as evidenced by an Opinion of Counsel,
does not adversely affect in any material respect the interests of the
Noteholders or the Certificateholders.
SECTION 8.2 Amendments With Consent of Certificateholders and Noteholders.
This Agreement may be amended from time to time by the Seller and the Owner
Trustee with the consent of Noteholders whose Notes evidence not less than a
majority of the aggregate outstanding amount of the Notes as of the close of the
preceding Distribution Date and the consent of Certificateholders whose
Certificates evidence not less than a majority of the Certificate Balance as of
the close of the preceding Distribution Date (which consent, whether given
pursuant to this Section 8.2 or pursuant to any other provision of this
Agreement, shall be conclusive and binding on such Person and on all future
Holders of such Notes or Certificates and of any Notes or Certificates issued
upon the transfer thereof or in exchange thereof or in lieu thereof whether or
not notation of such consent is made upon the Notes or Certificates) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement, or of modifying in any manner the rights of
the Noteholders or the Certificateholders; provided, however, that no such
amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Contracts, or
distributions that shall be required to be made on any Note or Certificate, any
Contract Rate, the Pass Through Rate or the Class A Rate or (b) reduce the
aforesaid percentage required to consent to any such amendment, without the
consent of the holders of all Notes and all of the Certificate Balance with
respect to Certificates then outstanding. The Owner Trustee shall furnish notice
to each of the Rating Agencies prior to obtaining consent to any proposed
amendment under this Section 8.2.
SECTION 8.3 Form of Amendments.
(a) Promptly after the execution of any amendment, supplement or consent
pursuant to Section 8.1 or 8.2, the Owner Trustee shall furnish written
notification of the substance of such amendment or consent to each
Certificateholder and the Indenture Trustee.
31
(b) It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Indenture Trustee pursuant to Section 8.2 to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
(c) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(d) Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
32
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 No Legal Title to Owner Trust Estate. The Certificateholders
shall not have legal title to any part of the Owner Trust Estate. The
Certificateholders shall be entitled to receive distributions with respect to
their undivided ownership interest therein only in accordance with Articles V
and VII. No transfer, by operation of law or otherwise, of any right, title, and
interest of the Certificateholders to and in their ownership interest in the
Owner Trust Estate shall operate to terminate this Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to it of
legal title to any part of the Owner Trust Estate.
SECTION 9.2 Limitations on Rights of Others. Except for Section 2.7, the
last sentence of Section 5.2(a) and Section 9.12, the provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Seller, the
Certificateholders, the Servicer and, to the extent expressly provided herein,
the Indenture Trustee and the Noteholders, and nothing in this Agreement,
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Owner Trust Estate or under or
in respect of this Agreement or any covenants, conditions or provisions
contained herein.
SECTION 9.3 Notices.
(a) All demands, notices and communications upon or to the Seller, the
Servicer, the Indenture Trustee, the Owner Trustee or the Rating Agencies under
this Agreement shall be in writing personally delivered, sent by electronic
facsimile (with hard copy to follow via first class mail), provided, however,
receipt of such is acknowledged by return facsimile or otherwise in writing, or
mailed by certified mail-return receipt requested, and shall be deemed to have
been duly given upon receipt (a) in the case of the Seller, at the following
address: ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, (b) in the case of the Servicer,
at the following address: ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, (c) in the case
of the Indenture Trustee, at its Corporate Trust Office, (d) in the case of the
Trust or the Owner Trustee, to the Owner Trustee at its Corporate Trust Office,
with a copy to The Bank of New York at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, (e) in the case of ▇▇▇▇▇'▇ Investors
Service, Inc., to ▇▇▇▇▇'▇ Investors Service, Inc., ABS Monitoring Department, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and (f) in the case of Standard & Poor's
Corporation, to Standard & Poor's Corporation, ▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇), ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Surveillance Department, or at
such other address as shall be designated by such Person in a written notice to
the other parties to this Agreement.
(b) Any notice required or permitted to be given to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
33
SECTION 9.4 Severability. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Certificates or the rights of the holders
thereof.
SECTION 9.5 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
SECTION 9.6 Successors and Assigns. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, the Seller, the Owner
Trustee and each Certificateholder and their respective successors and permitted
assigns, all as herein provided. Any request, notice, direction, consent, waiver
or other instrument or action by a Certificateholder shall bind the successors
and assigns of such Certificateholder.
SECTION 9.7 No Petition Covenant. Notwithstanding any prior termination of
this Agreement, the Trust (or the Owner Trustee on behalf of the Trust), each
Certificateholder or Certificate Owner, the Indenture Trustee and each
Noteholder or Note Owner shall not, prior to the date which is one year and one
day after the termination of this Agreement with respect to the holder of the GP
Interest or the Seller, acquiesce, petition or otherwise invoke or cause the
holder of the GP Interest to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the holder
of the GP Interest or the Seller under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the holder of the
GP Interest or the Seller or any substantial part of its property, or ordering
the winding up or liquidation of the affairs of the holder of the GP Interest or
the Seller.
SECTION 9.8 No Recourse. Each Certificateholder by accepting a Certificate
acknowledges that such Certificateholder's Certificates represent beneficial
interests in the Trust only and do not represent interests in or obligations of
the Seller, the holder of the GP Interest, the Servicer, the Owner Trustee, the
Indenture Trustee or any Affiliate thereof and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Certificates or the Basic Documents.
SECTION 9.9 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 9.10 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
34
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 9.11 Certificate Transfer Restrictions.
The Certificates may not be acquired by or for the account of (i) an
employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to
the provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1)
of the Code or (iii) any entity whose underlying assets include plan assets by
reason of a plan's investment in the entity (each, a "Benefit Plan"). By
accepting and holding a Certificate, the Holder thereof and the Certificate
Owner shall each be deemed to have represented and warranted that it is not a
Benefit Plan and not subject to the foregoing limitation.
SECTION 9.12 Indemnification by the Servicer. The Owner Trustee further
acknowledges and accepts the conditions and limitations with respect to the
Servicer's obligation to indemnify, defend and hold the Owner Trustee harmless
as set forth in Section 8.02 of the Sale and Servicing Agreement.
35
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written
THE BANK OF NEW YORK (DELAWARE),
as Owner Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
THE CIT GROUP SECURITIZATION
CORPORATION II
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Accepted and Agreed
with respect to the
provisions relating to
the intended holder of
the GP Interest:
THE CIT GP CORPORATION II
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
36
EXHIBIT A
NUMBER ______ $ _________________
CUSIP NO. ▇▇▇▇▇▇▇▇▇
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO INTEREST IN THIS CERTIFICATE MAY BE ACQUIRED BY OR FOR THE ACCOUNT OF
(i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA")) THAT IS SUBJECT
TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN DESCRIBED IN SECTION
4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (INCLUDING, WITHOUT
LIMITATION, INDIVIDUAL RETIREMENT ACCOUNTS AND ▇▇▇▇▇ PLANS), OR (iii) ANY ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN
THE ENTITY. BY ACCEPTING AND HOLDING THIS CERTIFICATE, THE HOLDER HEREOF AND THE
CERTIFICATE OWNER SHALL EACH BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT
IS NOT A BENEFIT PLAN.
PURSUANT TO THE TRUST AGREEMENT (AS DEFINED BELOW), THE CIT GP CORPORATION
II ("GP CORP") SHALL RETAIN BENEFICIAL AND RECORD OWNERSHIP OF CERTIFICATES
REPRESENTING AT LEAST 1% OF THE CERTIFICATE BALANCE, AND ANY ATTEMPTED TRANSFER
OF THIS CERTIFICATE THAT REDUCES THE BENEFICIAL AND RECORD INTEREST OF GP CORP
TO BELOW 1% OF THE CERTIFICATE BALANCE SHALL BE VOID.
CIT RV OWNER TRUST 1996-A
5.85% ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of retail installment sale contracts secured
by new and used recreational vehicles and sold to the Trust by The CIT Group
Securitization Corp II (This Certificate does not represent an interest in or
obligation of The CIT Group Securitization Corporation II, The CIT Group/Sales
Financing, Inc. or The CIT Group Holdings, Inc. or any of their respective
affiliates, except to the extent described below.)
THIS CERTIFIES THAT ___________ is the registered owner of a nonassessable,
fully-paid, fractional undivided interest in CIT RV Owner Trust 1996-A (the
"Trust") formed by The CIT Group Securitization Corporation II, a Delaware
corporation.
The Trust was created pursuant to a Trust Agreement, dated as of February
1, 1996 (as amended and supplemented from time to time, the "Trust Agreement"),
between the Seller and The Bank of New York (Delaware), as owner trustee (the
"Owner Trustee"), a summary of certain of the pertinent provisions of which is
set forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in the Trust Agreement.
This Certificate is one of the duly authorized Certificates designated as
5.85% Asset Backed Certificates (the "Certificates"). This Certificate is issued
under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Certificate by virtue of
the acceptance hereof assents and by which such holder is bound. The property of
the Trust includes a pool of simple interest retail installment sale contracts
(the "Contracts") secured by the new and used recreational vehicles financed
thereby (the "Financed Vehicles"), certain monies received under the Initial
Contracts on and after February 1, 1996 (the "Initial Cut-off Date") or under
the Subsequent Contracts as of the related Subsequent Cut-off Date, security
interests in the Initial Financed Vehicles, the Collection Account, the Cash
Collateral Account, the Note Distribution Account, the Certificate Distribution
Account, the Capitalized Interest Account and the Pre-Funding Account, in each
case together with the proceeds thereof (except for investment earnings on the
Cash Collateral Account), the proceeds from claims under certain insurance
policies in respect of individual Initial Financed Vehicles or the related
Obligors and certain rights under the Sale and Servicing Agreement. The rights
of the holders of the Certificates are subordinated to the rights of the holders
of the Notes, as set forth in the Sale and Servicing Agreement.
Under the Trust Agreement, there shall be distributed on the 15th day of
each month or, if such 15th day is not a Business Day, the next Business Day,
commencing on March 15, 1996 (each, a "Distribution Date"), to the person in
whose name this Certificate is registered on the related Record Date (as defined
below), such Certificateholder's fractional undivided interest in the amount of
interest and principal to be distributed to Certificateholders on such
Distribution Date. On each Distribution Date interest on this Certificate shall
be distributed in an amount equal to one-twelfth of the product of the rate per
annum shown above and the outstanding principal amount of this Certificate as of
the preceding Distribution Date after giving effect to all payments of principal
and other reductions in the principal amount of this Certificate to be made on
such Distribution Date (or in the case of the first Distribution Date the
original outstanding principal amount of this Certificate). The "Record Date,"
with respect to any Distribution Date, means the close of business on the day
immediately preceding such Distribution Date, or if Definitive Certificates are
issued, the last day of the month immediately preceding the month in which such
Distribution Date occurs.
A-2
The distributions in respect of principal and interest on this Certificate
are payable in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. All
payments made by the Trust with respect to this Certificate shall be applied
first to interest due and payable on this Certificate as provided above and then
to the unpaid distributions in respect of principal on this Certificate.
The holder of this Certificate acknowledges and agrees that its rights to
receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as and to the extent described in the Sale and
Servicing Agreement and the Indenture.
It is the intent of the Seller, the Servicer and the Certificateholders
that, for purposes of federal income, state and local income and franchise taxes
and any other taxes imposed upon, measured by or based upon gross or net income,
the Trust shall be treated as a partnership. Except as otherwise required by
appropriate taxing authorities, the Seller and the other Certificateholders by
acceptance of a Certificate, agree to treat, and to take no action inconsistent
with the treatment of, the Certificates for such tax purposes as interests in
such partnership.
Each Certificateholder or Certificate Owner, by its acceptance of a
Certificate or, in the case of a Certificate Owner, a beneficial interest in a
Certificate, covenants and agrees that such Certificateholder or Certificate
Owner, as the case may be, shall not, prior to the date which is one year and
one day after the termination of the Trust Agreement, acquiesce, petition or
otherwise invoke or cause the Seller, the Issuer or the holder of the GP
Interest to invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against the Seller, the Issuer or the
holder of the GP Interest under any federal or state bankruptcy, insolvency,
reorganization or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Seller, the
Issuer or the holder of the GP Interest or any substantial part of its property,
or ordering the winding up or liquidation of the affairs of the Seller, the
Issuer or the holder of the GP Interest.
Distributions on this Certificate shall be made as provided in the Trust
Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this certificate or the making of any notation hereon, except
that with respect to Certificates registered on the Record Date in the name of
the nominee of the Depository (initially, such nominee to be Cede & Co.),
payments shall be made by wire transfer in immediately available funds to the
account designated by such nominee. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate shall be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office maintained for such purpose by the Owner Trustee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-3
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee by manual signature, this Certificate
shall not entitle the holder hereof to any benefit under the Trust Agreement or
the Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
A-4
IN WITNESS WHEREOF, the Co-Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Certificate to be duly executed.
CIT RV OWNER TRUST 1996-A
BY: THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Co-Trustee
By:
------------------------
Name:
Title:
Dated:
-----------------------
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
THE BANK OF NEW YORK (DELAWARE)
not in its
capacity but solely
as Co-Trustee
By:
----------------------------
The Bank of New York, as
authenticating agent
A-5
REVERSE OF CERTIFICATE
The Certificates do not represent an obligation of, or an interest in, the
Seller, the Servicer, The CIT Group Holdings, Inc., the holder of the GP
Interest, the Indenture Trustee, the Owner Trustee, the Cash Collateral
Depositor or any affiliates of any of them and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement or the Basic Documents. In
addition, this Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections and
recoveries with respect to the Contracts (and certain other amounts), all as
more specifically set forth herein and in the Trust Agreement and the Sale and
Servicing Agreement. A copy of each of the Sale and Servicing Agreement and the
Trust Agreement may be examined during normal business hours at the principal
office of the Seller, and at such other places, if any, designated by the
Seller, by any Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under the Trust Agreement at any
time by the Seller and the Owner Trustee with the consent of the Holders of the
Notes evidencing not less than a majority of the aggregate outstanding amount of
the Notes as of the close of the preceding Distribution Date and the consent of
Certificateholders whose Certificates evidence not less than a majority of the
Certificate Balance as of the close of the preceding Distribution Date. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such holder and on all future Holders of this Certificate and of any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent is made upon this Certificate. The Trust
Agreement also permits the amendment thereof, in certain circumstances, without
the consent of the Holders of any of the Certificates or the Notes.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee for such purposes, accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing and thereupon one or more new Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Trust Agreement is The Bank of New York.
The Certificates are issuable only as registered Certificates without
coupons in denominations of $20,000 or integral multiples of $1,000 in excess
thereof; provided, however, that one Certificate may be issued in a denomination
other than an integral multiple of $1,000 such that the holder of the GP
Interest may be issued at least 1% of the Certificate Balance (as described in
the Trust Agreement). As provided in the Trust Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same; provided,
A-6
however, that no Certificate may be subdivided such that the denomination
of any resulting Certificate is less than $20,000. No service charge shall be
made for any such registration of transfer or exchange, but the Owner Trustee or
the Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Owner Trustee, the Certificate Registrar or any such agent shall be affected by
any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders of
all amounts required to be paid to them pursuant to the Trust Agreement and the
Sale and Servicing Agreement and the disposition of all property held as part of
the Trust. CITSF may at its option purchase the Contracts at a price specified
in the Sale and Servicing Agreement, and such purchase of the Contracts shall
effect early retirement of the Certificates; provided, however, that such right
of purchase is exercisable on any Distribution Date following any Record Date as
of which the Pool Balance is 10% or less of the Initial Pool Balance. In
addition, within ten days following a Distribution Date as of which the Pool
Balance is 5% or less of the Initial Pool Balance an auction sale of the
remaining Contracts will be conducted (in each case, as described in the Sale
and Servicing Agreement) and such auction shall effect early retirement of the
Certificates.
A-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
---------------------------------------------------------------------- Attorney
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated: *
-------------- ------------------
Signature Guaranteed:
-------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Certificate
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Exchange Act.
A-8
EXHIBIT B
CERTIFICATE OF TRUST OF
CIT RV OWNER TRUST 1996-A
THIS Certificate of Trust of CIT RV Owner Trust 1996-A (the "Trust"), dated
as of February 1, 1996, is being duly executed and filed by , a
-----------------
Delaware banking corporation, as trustee, to form a business trust under the
Delaware Business Trust Act (12 Del. C. 3801 et seq.).
1. Name. The name of the business trust formed hereby is CIT RV
Owner Trust 1996-A.
2. Delaware Trustee. The name and business address of the Trust
resident in the State of Delaware is
------------ -------, ----------, -- -----.
3. This Certificate of Trust shall be effective as of 1996.
----- --,
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust, has
executed this Certificate of Trust as of the date first-above written.
--------------------------------, not in its individual capacity but solely
as Owner Trustee under a Trust Agreement dated as of February 1, 1996
By:
-----------------------------
Name:
Title: