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ADMINISTRATION AGREEMENT
among
CIT EQUIPMENT COLLATERAL 2001-1,
as Issuer,
CIT FINANCIAL USA, INC.,
as Administrator
NCT FUNDING COMPANY, L.L.C.,
as Trust Depositor,
and
THE CHASE MANHATTAN BANK
as Indenture Trustee
Dated as of February 1, 2001
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TABLE OF CONTENTS
Page
----
Section 1. Duties of the Administrator......................................1
Section 2. Records..........................................................7
Section 3. Compensation.....................................................7
Section 4. Additional Information to be Furnished to the Issuer.............7
Section 5. Independence of the Administrator................................7
Section 6. No Joint Venture.................................................7
Section 7. Other Activities of Administrator................................8
Section 8. Term of Agreement; Resignation and Removal of Administrator......8
Section 9. Action upon Termination, Resignation or Removal..................8
Section 10. Notices..........................................................9
Section 11. Amendments......................................................10
Section 12. Successors and Assigns..........................................10
Section 13. Governing Law...................................................11
Section 14. Headings........................................................11
Section 15. Counterparts....................................................11
Section 16. Severability....................................................11
Section 17. Not Applicable to CFUSA in Other Capacities.....................11
Section 18. Limitation of Liability of Owner Trustee and Indenture Trustee..11
Section 19. Third-party Beneficiary.........................................12
Section 20. Survivability...................................................13
EXHIBIT A LIMITED POWER OF ATTORNEY
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This Administration Agreement, dated as of February 1, 2001 (this
"Agreement"), is among CIT Equipment Collateral 2001-1 (the "Issuer"), CIT
Financial USA, Inc. (together with its successors and assigns, "CFUSA" and in
its capacity as administrator the "Administrator"), NCT Funding Company, L.L.C.
(together with its successors and assigns, the "Trust Depositor"), and The Chase
Manhattan Bank, not in its individual capacity but solely as Indenture Trustee
(together with its successors and assigns, the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer is issuing 5.0325% Class A-1 Receivable-Backed
Notes, Series 2001-1, 5.02% Class A-2 Receivable-Backed Notes, Series 2001-1,
5.23% Class A-3 Receivable-Backed Notes, Series 2001-1, Floating Rate Class A-4
Receivable-Backed Notes, Series 2001-1, 5.31% Class B Receivable-Backed Notes,
Series 2001-1, 5.53% Class C Receivable-Backed Notes, Series 2001-1, and 6.11%
Class D Receivable-Backed Notes, Series 2001-1 (collectively, the "Notes")
pursuant to the Indenture, dated as of the date hereof (the "Indenture"),
between the Issuer and the Indenture Trustee (capitalized terms used herein that
are not otherwise defined shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement as defined in the Indenture);
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes and of certain beneficial ownership interests of
the Issuer, including (i) the Pooling and Servicing Agreement, (ii) the
Indenture and (iii) the other Transaction Documents to which the Issuer is a
party;
WHEREAS, pursuant to the Transaction Documents, the Issuer and the
Owner Trustee are required to perform certain duties in connection with (i) the
Notes and the Collateral therefor pledged pursuant to the Indenture and (ii) the
beneficial ownership interest in the Issuer evidenced by the Equity Certificate
(the registered holder of such interest being referred to herein as the
"Owner");
WHEREAS, the Issuer desires to have the Administrator perform certain
of the duties of the Issuer and the Owner Trustee referred to in the preceding
clause and to provide such additional services consistent with the terms of this
Agreement and the Transaction Documents as the Issuer and the Owner Trustee may
from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Duties of the Administrator.
(a) Duties with respect to the Transaction Documents.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under
the Transaction Documents. In addition, the Administrator shall consult
with the Owner Trustee regarding the duties of the Issuer or the Owner
Trustee under the Transaction Documents. The Administrator shall
monitor the performance of the Issuer and shall advise the Owner
Trustee when action is necessary to comply with the respective duties
of the Issuer and the Owner Trustee under the Transaction Documents.
The Administrator shall prepare for execution by the Issuer or shall
cause the preparation by other appropriate persons of, all such
documents, reports, filings, instruments, certificates and opinions
that it shall be the duty of the Issuer or the Owner Trustee to
prepare, file or deliver pursuant to the Transaction Documents. In
furtherance of the foregoing, the Administrator shall take all
appropriate action that the Issuer or the Owner Trustee is required to
take pursuant to the Indenture including, without limitation, such of
the foregoing as are required with respect to the following matters
under the Indenture (references are to Sections of the Indenture):
(A) the duty to cause the Note Register to be kept
and to give the Indenture Trustee notice of any appointment of
a new Note Registrar and the location, or change in location,
of the Note Register (Section 2.04);
(B) the notification of Noteholders of the final
principal payment on their Notes (Section 2.07(b)) or indicate
on the Servicer Report that the Principal Amount is 0;
(C) the preparation of or obtaining of the documents
and instruments required for execution and authentication of
the Notes and delivery of the same to the Indenture Trustee
(Section 2.02);
(D) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents
required for the release of Collateral (Section 2.12);
(E) the maintenance of an office in New York, New
York, or the appointment of the Indenture Trustee as its agent
therefor, for registration of transfer or exchange of Notes
(Section 3.02);
(F) the duty to cause newly appointed Paying Agents,
if any, to deliver to the Indenture Trustee the instrument
specified in the Indenture regarding funds held in trust
(Section 3.03);
(G) the direction to the Indenture Trustee to deposit
monies with Paying Agents, if any, other than the Indenture
Trustee (Section 3.03);
(H) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which
such qualification is or shall be necessary to protect the
validity and enforceability of the Indenture, the Notes, the
Collateral and each other instrument and agreement included in
the Collateral (Section 3.04);
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(I) the preparation of all supplements and amendments
to the Indenture and all financing statements, continuation
statements, instruments of further assurance and other
instruments and the taking of such other action as is
necessary or advisable to protect the Collateral other than as
prepared by the Servicer (Section 3.05);
(J) the delivery of certain statements as to
compliance with the Indenture (Sections 3.09);
(K) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has
contracted to perform its duties under the Indenture (Section
3.07(b));
(L) the notification of the Indenture Trustee and
each Rating Agency of a Servicer Default under the Pooling and
Servicing Agreement;
(M) the preparation and obtaining of documents and
instruments required for the release of the Issuer from its
obligations under the Indenture (Section 3.10(b));
(N) the monitoring of the Issuer's obligations as to
the satisfaction and discharge of the Indenture and the
preparation of an Officer's Certificate and the obtaining of
the Opinion of Counsel and the Independent Certificate
relating thereto (Section 4.01);
(O) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Collateral
in a commercially reasonable manner if an Event of Default
shall have occurred and be continuing (Section 5.04);
(P) the preparation and delivery of notice to
Noteholders of the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee (Section 6.08);
(Q) the preparation of any written instruments
required to confirm more fully the authority of any co-trustee
or separate trustee and any written instruments necessary in
connection with the resignation or removal of the Indenture
Trustee or any co-trustee or separate trustee (Sections 6.08
and 6.10);
(R) the furnishing of the Indenture Trustee with the
names and addresses of Noteholders during any period when the
Indenture Trustee is not the Note Registrar (Section 7.01);
(S) the filing of reports required by the Commission
or under the TIA (Section 7.03);
(T) the opening of one or more accounts in the
Indenture Trustee's name, the preparation and delivery of
Issuer Orders, Officer's Certificates and Opinions of Counsel
and all other actions necessary with respect to investment and
reinvestment of funds in the Trust Accounts (Sections 8.02 and
8.03);
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(U) the preparation of an Issuer Request and
Officer's Certificate and the obtaining of an Opinion of
Counsel and Independent Certificates, if necessary, for the
release of the Collateral (Sections 8.04 and 8.05);
(V) the preparation of Issuer Orders and the
obtaining of Opinions of Counsel with respect to the execution
of supplemental indentures and the mailing to the Noteholders
of notices with respect to such supplemental indentures
(Sections 9.01, 9.02 and 9.03);
(W) the execution and delivery of new Notes
conforming to any supplemental indenture (Section 9.06);
(X) the duty to notify Noteholders of redemption of
the Notes or to cause the Indenture Trustee to provide such
notification (Section 10.02);
(Y) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent Certificates
with respect to any requests by the Issuer to the Indenture
Trustee to take any action under the Indenture (Section
11.01(a));
(Z) the preparation and delivery of Officer's
Certificates and the obtaining of Independent Certificates, if
necessary, for the release of property from the lien of the
Indenture (Section 11.01(b));
(AA) the notification of the Rating Agencies, of any
merger or consolidation involving the Issuer, the Servicer,
the Owner Trustee or the Indenture Trustee and upon the
failure of the Issuer, the Owner Trustee or the Indenture
Trustee to provide notification;
(BB) the preparation and delivery to Noteholders and
the Indenture Trustee of any agreements with respect to
alternate payment and notice provisions (Section 11.06); and
(CC) the recording of the Indenture, if applicable
(Section 11.14).
(ii) The Administrator will:
(A) except as otherwise expressly provided
in the Indenture or the Pooling and Servicing
Agreement, pay the Indenture Trustee's fees and
reimburse the Indenture Trustee upon its request for
all reasonable expenses, disbursements and advances
incurred or made by the Indenture Trustee in
accordance with any provision of the Transaction
Documents (including the reasonable compensation,
expenses and disbursements of its agents and
counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or
bad faith;
(B) indemnify the Indenture Trustee and its
officers, directors, employees or agents for, and
hold them harmless against, any loss, liability or
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expense incurred without negligence or bad faith on
their part, arising out of or in connection with the
acceptance or administration of the transactions
contemplated by the Indenture, the Pooling and
Servicing Agreement, this Agreement and the other
Transaction Documents, including the reasonable costs
and expenses of defending themselves against any
claim or liability in connection with the exercise or
performance of any of their powers or duties under
the Indenture; and
(C) indemnify the Owner Trustee (including
in its individual capacity) and its officers,
directors, employees or agents for, and hold them
harmless against, any loss, liability or expense
incurred without negligence or bad faith on their
part, arising out of or in connection with the
acceptance or administration of the transactions
contemplated by the Trust Agreement and this
Agreement, including the reasonable costs and
expenses of defending themselves against any claim or
liability in connection with the exercise or
performance of any of their powers or duties under
the Trust Agreement (and including without
limitation, an indemnity as described above with
respect to the Trust Depositor's obligations in favor
of the Owner Trustee under Section 8.02 of the Trust
Agreement).
(b) Additional Duties.
(i) In addition to the duties set forth in Section
1(a)(i), the Administrator shall perform such calculations and
shall prepare or shall cause the preparation by other
appropriate persons of, and shall execute on behalf of the
Issuer or the Owner Trustee, all such documents, reports,
filings, instruments, certificates and opinions that the
Issuer or the Owner Trustee are required to prepare, file or
deliver pursuant to the Transaction Documents or Section 5.03,
6.01 or 6.02 of the Trust Agreement, and at the request of the
Owner Trustee shall take all appropriate action that the
Issuer or the Owner Trustee are required to take pursuant to
the Transaction Documents. In furtherance thereof, the Owner
Trustee shall, on behalf of itself and of the Issuer, execute
and deliver to the Administrator and to each successor
Administrator appointed pursuant to the terms hereof, one or
more powers of attorney substantially in the form of Exhibit A
hereto, appointing the Administrator the attorney-in-fact of
the Owner Trustee and the Issuer for the purpose of executing
on behalf of the Owner Trustee and the Issuer all such
documents, reports, filings, instruments, certificates and
opinions. Subject to Section 5, and in accordance with the
directions of the Issuer, the Administrator shall administer,
perform or supervise the performance of such other activities
in connection with the Collateral (including the Transaction
Documents) as are not covered by any of the foregoing
provisions and as are expressly requested by the Issuer and
are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or
the Transaction Documents to the contrary, the Administrator
shall be responsible for promptly notifying the Owner Trustee
in the event that any withholding tax is imposed on the
Trust's payments (or allocations of income) to the Owner as
contemplated in Section 5.04 of the Trust Agreement. Any such
notice shall specify the amount of any withholding tax
required to be withheld by the Owner Trustee pursuant to such
provision.
(iii) Notwithstanding anything in this Agreement or
the Transaction Documents to the contrary, the Administrator
shall be responsible for performance of the duties of the
Owner Trustee and the Trust set forth in Section 5.07 of the
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Trust Agreement with respect to, among other things,
accounting and reports to the Equity Certificateholder;
provided, however, that the Owner Trustee shall retain
responsibility for the distribution of information forms in
its possession as requested by the Owner or the Administrator
and which are necessary to enable the Trust to prepare its
federal and state income tax returns in its possession as
requested by the Owner or the Administrator.
(iv) The Administrator shall satisfy its obligations
with respect to clauses (ii) and (iii) above by retaining, at
the expense of the Trust payable by the Administrator, a firm
of independent public accountants (the "Accountants")
acceptable to the Owner Trustee, which shall perform the
obligations of the Administrator thereunder.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.02 of the Trust
Agreement required to be performed in connection with the
resignation or removal of the Owner Trustee, and any other
duties expressly required to be performed by the Administrator
under the Trust Agreement.
(vi) The Administrator shall not direct the Owner
Trustee to take or to refrain from taking any action if such
action or inaction: (A) would be contrary to any obligation of
the Trust or the Owner Trustee under this Agreement or any of
the other Transaction Documents, (B) to the actual knowledge
of a Responsible Officer of the Owner Trustee, would result in
the Trust's becoming taxable as a corporation for federal or
state income tax purposes or (C) would be contrary to the
purpose of the Trust.
(vii) Upon acceptance of appointment by a successor
Owner Trustee pursuant to the Trust Agreement, the
Administrator shall mail notice thereof to the Equity
Certificateholder, the Indenture Trustee, the Noteholders and
each Rating Agency.
(viii) In carrying out the foregoing duties or any of
its other obligations under this Agreement, the Administrator
may enter into transactions or otherwise deal with any of its
Affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer than
would be available from unaffiliated parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a
reasonable time before the taking of such action, the
Administrator shall have notified the Owner Trustee of the
proposed action and the Owner Trustee shall not have withheld
consent or provided an alternative direction. For the purpose
of the preceding sentence, "non-ministerial matters" shall
include, without limitation:
(A) the amendment of or any supplement to
the Indenture;
(B) the initiation of any claim or lawsuit
by the Issuer and the compromise of any action, claim
or lawsuit brought by or against the Issuer (other
than in connection with the collection of the
Contracts);
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(C) the amendment, change or modification of
any other Transaction Documents;
(D) the appointment of successor Note
Registrars, successor Paying Agents and successor
Indenture Trustees pursuant to the Indenture or the
appointment of successor Administrators or a
successor Servicer, or the consent to the assignment
by the Note Registrar, Paying Agent or Indenture
Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and
shall not, (A) make any payments to the Noteholders under the
Transaction Documents, (B) sell the Collateral pursuant to
Section 5.04(d) of the Indenture, (C) take any other action
that the Issuer directs the Administrator not to take on its
behalf or (D) take any other action which may be construed as
having the effect of varying the terms of the investment of
the Noteholders or the Equity Certificateholder.
Section 2. Records. The Administrator shall maintain appropriate books
of account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer and the
Owner Trustee at any time during normal business hours.
Section 3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to a monthly fee
which shall be solely an obligation of the Servicer as contemplated in Section
5.19 of the Pooling and Servicing Agreement and which shall be in an amount as
shall be agreeable to the Trust Depositor and the Administrator.
Section 4. Additional Information to be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
Section 5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
Section 6. No Joint Venture. Nothing contained in this Agreement (i)
shall constitute the Administrator and either of the Issuer or the Owner Trustee
as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
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Section 7. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other business or,
in its sole discretion, from acting in a similar capacity as an administrator
for any other Person or entity even though such person or entity may engage in
business activities similar to those of the Issuer, the Owner Trustee or the
Indenture Trustee.
Section 8. Term of Agreement; Resignation and Removal of Administrator.
This Agreement shall continue in force until the termination of the Trust
Agreement, upon which event this Agreement shall automatically terminate.
(a) Subject to Section 8(d) and Section 8(e), the
Administrator may resign its duties hereunder by providing the Issuer
with at least sixty (60) days' prior written notice.
(b) Subject to Section 8(d) and Section 8(e), the Issuer may
remove the Administrator without cause by providing the Administrator
with at least sixty (60) days' prior written notice.
(c) Subject to Section 8(d) and Section 8(e), at the sole
option of the Issuer, the Administrator may be removed immediately upon
written notice of termination from the Issuer to the Administrator if
any of the following events shall occur:
(i) the Administrator shall default in the
performance of any of its duties under this Agreement and,
after notice of such default, shall not cure such default
within ten (10) days (or, if such default cannot be cured in
such time, shall not give within ten (10) days such assurance
of cure as shall be reasonably satisfactory to the Issuer); or
(ii) an Insolvency Event shall occur with respect to
the Administrator.
The Administrator agrees that if any of the events specified in clause
(ii) above shall occur, it shall give written notice thereof to the Issuer and
the Indenture Trustee within seven (7) days after the occurrence of such event.
(d) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator
shall have been appointed by the Issuer and (ii) such successor
Administrator shall have agreed in writing to be bound by the terms of
this Agreement in the same manner as the Administrator is bound
hereunder.
(e) The appointment of any successor Administrator shall be
effective only after the satisfaction of the Rating Agency Condition
with respect to the proposed appointment.
(f) Subject to Section 8(d) and 8(e), the Administrator
acknowledges that upon the appointment of a Successor Servicer pursuant
to the Pooling and Servicing Agreement, the Administrator shall
immediately resign (subject to Section 8(d) hereof).
Section 9. Action upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of this Agreement pursuant to Section 8
8
or the resignation or removal of the Administrator pursuant to Section 8(a), (b)
or (c) respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 8 deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
(a), (b) or (c), respectively, the Administrator shall cooperate with the Issuer
and take all reasonable steps requested to assist the Issuer in making an
orderly transfer of the duties of the Administrator.
Section 10. Notices. All notices, demands, certificates, requests and
communications hereunder ("notices") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or (d) on the date transmitted by
legible telecopier transmission with a confirmation of receipt, in all cases
addressed to the recipient as follows:
(i) If to the Administrator:
CIT Financial USA, Inc.
000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Treasury - Securitization
Fax No.: (000) 000-0000
Tel. No.: (000) 000-0000
(ii) If to the Trust Depositor:
NCT Funding Company, L.L.C.
000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasury - Securitization
Fax No.: (000) 000-0000
Tel. No.: (000) 000-0000
(iii) If to the Indenture Trustee:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Institutional Trust Services
CITEC 2001-1
Fax No.: (000) 000-0000/8302
Tel. No.: (000) 000-0000
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(iv) If to the Issuer or the Owner Trustee:
CIT Equipment Collateral 2001-1
c/o Allfirst Financial Center National Association
000 Xxxxxxxx Xxxx XX 000-000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration CITEC
2001-1
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
Section 11. Amendments. This Agreement may be amended from time to time
by a written amendment duly executed and delivered by the parties hereto, with
the written consent of the Owner Trustee but without the consent of the
Noteholders and the Equity Certificateholder, 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 Equity Certificateholder; provided that such amendment will not, in the
Opinion of Counsel satisfactory to the Indenture Trustee, materially and
adversely affect the interest of any Noteholder or the Equity Certificateholder.
This Agreement may also be amended by the parties hereto with the written
consent of the Owner Trustee and the Required Holders 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 Noteholders or the
Equity Certificateholder; provided, however, that no such amendment may (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on the Contracts or distributions that are
required to be made for the benefit of the Noteholders or the Equity
Certificateholder or (ii) reduce the aforesaid percentage of the Noteholders and
the Equity Certificateholder which are required to consent to any such
amendment, without the consent of the Noteholders of all outstanding Notes and
the Equity Certificate. Notwithstanding the foregoing, the Administrator may not
amend this Agreement without the permission of the Trust Depositor, which
permission shall not be unreasonably withheld. Promptly after the execution of
any amendment to this Agreement, the Administrator shall furnish written
notification of the substance of such amendment, together with a copy thereof,
to each Rating Agency.
Section 12. Successors and Assigns. This Agreement may not be assigned
by the Administrator unless such assignment is previously consented to in
writing by the Issuer, the Indenture Trustee and the Owner Trustee and subject
to the satisfaction of the Rating Agency Condition in respect thereof. An
assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the assignee hereunder in the same manner as the Administrator is
bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned
by the Administrator without the consent of the Issuer or the Owner Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of all or substantially all assets) to the Administrator; provided
that such successor organization executes and delivers to the Issuer, the Owner
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Trustee and the Indenture Trustee an agreement, in form and substance reasonably
satisfactory to the Owner Trustee and the Indenture Trustee, in which such
corporation or other organization agrees to be bound hereunder by the terms of
said assignment in the same manner as the Administrator is bound hereunder.
Subject to the foregoing, this Agreement shall bind any successors or assigns of
the parties hereto.
Section 13. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 14. Headings. The section and subsection headings hereof have
been inserted for convenience of reference only and shall not be construed to
affect the meaning, construction or effect of this Agreement.
Section 15. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same agreement.
Section 16. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 17. Not Applicable to CFUSA in Other Capacities. Nothing in
this Agreement shall affect any obligation CFUSA may have in any other capacity.
Section 18. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Allfirst Financial Center National
Association, not in its individual capacity but solely in its capacity as Owner
Trustee of the Issuer and in no event shall Allfirst Financial Center National
Association in its individual capacity or any beneficial owner of the Issuer
have any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by The Chase Manhattan Bank not in its
individual capacity but solely as Indenture Trustee and in no event shall The
Chase Manhattan Bank have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer. For all purposes
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of this Agreement, in the performance of any duties or obligations of the
Indenture Trustee hereunder, The Chase Manhattan Bank shall be subject to, and
entitled to the benefits of, the terms and provisions of the Indenture.
Section 19. Third-party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
12
Section 20. Survivability. The obligations of the Administrator
described in Section 1(a)(ii) hereof shall survive termination of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
CIT EQUIPMENT COLLATERAL 2001-1
By: ALLFIRST FINANCIAL CENTER
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Owner
Trustee
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Printed Name: Xxxxx X. Xxxxxxxx
Title: Sr. Vice President
NCT FUNDING COMPANY, L.L.C.
as Trust Depositor
By: /s/ Xxxxxxx Xxxxxxxx
--------------------
Printed Name: Xxxxxxx Xxxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK
not in its individual capacity but solely as
Indenture Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------
Printed Name: Xxxxx X. Xxxxxx
Title: Vice President
CIT FINANCIAL USA, INC., as Administrator
By: /s/ Xxxxxxx Xxxxxxxx
--------------------
Printed Name: Xxxxxxx Xxxxxxxx
Title: Vice President
13
EXHIBIT A
LIMITED POWER OF ATTORNEY
State of New York )
) SS.
County of )
KNOW ALL PERSONS BY THESE PRESENTS, that Allfirst Financial Center
National Association, not in its individual capacity but solely as owner trustee
(the "Owner Trustee") of CIT Equipment Collateral 2001-1, a Delaware business
trust (the "Trust"), by and through its duly elected and authorized officer
named below, on behalf of itself and on behalf of the Trust as Issuer under the
Administration Agreement, dated as of February 1, 2001 (the "Administration
Agreement"), among the Trust, NCT Funding Company, L.L.C., The Chase Manhattan
Bank, as Indenture Trustee, and CIT Financial USA, Inc., as Administrator, does
hereby nominate, constitute and appoint CIT Financial USA, Inc., a Delaware
corporation, each of its officers from time to time and each of its employees
authorized by it from time to time to act hereunder, jointly and each of them
severally, together or acting alone, its true and lawful attorney-in-fact, for
the Owner Trustee and the Issuer in their name, place and xxxxx, in the sole
discretion of such attorney-in-fact, to perform such calculations and prepare or
cause the preparation by other appropriate persons of, and to execute on behalf
of the Issuer or the Owner Trustee, all such documents, reports, filings,
instruments, certificates and opinions that the Issuer or the Owner Trustee is
required to prepare, file or deliver pursuant to the Administration Agreement,
and to take any and all other action, as such attorney-in-fact may deem
necessary or desirable in accordance with the directions of the Owner Trustee or
the Issuer and in connection with its duties as Administrator or successor
Administrator under the Administration Agreement. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Administration Agreement.
The Issuer and the Owner Trustee hereby ratify and confirm the
execution, delivery and performance (whether before or after the date hereof) of
the above-mentioned documents, reports, filings, instruments, certificates and
opinions, by the attorney-in-fact and all that the attorney-in-fact shall
lawfully do or cause to be done by virtue hereof.
The Issuer and the Owner Trustee hereby agree that no person or other
entity dealing with the attorney-in-fact shall be bound to inquire into such
attorney-in-fact's power and authority hereunder and any such person or entity
shall be fully protected in relying on such power of authority.
This Limited Power of Attorney may not be assigned without the prior
written consent of the Issuer and the Owner Trustee. It is effective immediately
and will continue until it is revoked.
This Limited Power of Attorney shall be governed and construed in
accordance with the laws of the State of New York without reference to
principles of conflicts of law.
Executed as of this 1st day of February, 2001.
ALLFIRST FINANCIAL CENTER
NATIONAL ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By:
Printed Name:
Title:
CIT EQUIPMENT COLLATERAL 2001-1
By: ALLFIRST FINANCIAL CENTER
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Owner
Trustee
By:
Printed Name:
Title:
2
CERTIFICATE OF ACKNOWLEDGMENT OF
NOTARY PUBLIC
State of New York )
) SS.
County of )
On February ___, 2001 before me,
--------------------------------------------------------------------------------
[insert date] [Here insert name and title of notary]
personally appeared
--------------------------------------------------------------------------------
o personally known to me, or
o proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ties), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature -------------------------------------- [SEAL]
3
