LOAN AGREEMENT
Among
CIT EQUIPMENT COLLATERAL 2000-1,
as the Trust,
THE CHASE MANHATTAN BANK,
as Indenture Trustee,
NCT FUNDING COMPANY, L.L.C.,
as Trust Depositor,
AT&T CAPITAL CORPORATION
in its individual capacity and as Servicer,
THE LENDER PARTIES HERETO, FROM TIME TO TIME,
as Lenders,
and
AT&T CAPITAL CORPORATION,
as Agent
Dated as of April 1, 2000
Relating to
CIT Equipment Collateral 2000-1
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS..................................................................................1
Section 1.01. Defined Terms.........................................................................1
ARTICLE II AMOUNT AND TERMS OF COMMITMENT..............................................................7
Section 2.01. Commitment.............................................................................7
Section 2.02 Payment of the Loans: Loan Account.....................................................7
Section 2.03. Interest Rate and Payment Date........................................................11
Section 2.04. Computation of Interest and Fees......................................................12
Section 2.05. Payments..............................................................................12
Section 2.06. Cash Collateral Account Administration, Direction of Eligible Investments.............12
Section 2.07. Increased Costs.......................................................................13
Section 2.08. Taxes.................................................................................15
Section 2.09. Nonrecourse and Recourse Obligations; Waiver of Setoff, Obligations Absolute..........18
Section 2.10. Indemnification.......................................................................20
ARTICLE III REPRESENTATIONS AND WARRANTIES OF DEPOSITOR AND SERVICER...................................22
Section 3.01. Corporate Existence...................................................................22
Section 3.02. Corporate Authority...................................................................22
Section 3.03. No Consents Required..................................................................23
Section 3.04. No Violation..........................................................................23
Section 3.05. No Proceeding.........................................................................23
Section 3.06. Registration and Prospectus; Other Information........................................24
Section 3.07. Trust Indenture Act; Investment Company Act...........................................24
Section 3.08. No Event of Default or Servicer Termination Event.....................................24
Section 3.09. Representations and Warranties in Transaction Documents and Regarding
Repurchase Event....................................................................24
Section 3.10. Withdrawal From the Cash Collateral Account...........................................25
Section 3.11. Adverse Selection.....................................................................25
ARTICLE IV CONDITIONS PRECEDENT.......................................................................25
Section 4.01. Representations and Warranties........................................................25
Section 4.02. Transaction Agreements................................................................25
Section 4.03. Additional Documents..................................................................25
Section 4.04. Accountant's Letter...................................................................26
Section 4.05. Note Issuance and Holdback Amount.....................................................26
Section 4.06. Secretary's Certificate...............................................................26
Section 4.07. Cash Collateral Account...............................................................26
Section 4.08. Ratings...............................................................................26
Section 4.09. Agent Fees............................................................................26
Section 4.10. Legal Opinions........................................................................26
ARTICLE V COVENANTS.....................................................................................27
Section 5.01. Performance of Agreements.............................................................27
Section 5.02. Amendments to the Pooling Agreement, Purchase and Sale Agreements and the
Indenture...........................................................................27
Section 5.03. Certificates..........................................................................27
Section 5.04. Monthly Status Reports................................................................27
Section 5.05. Default...............................................................................28
Section 5.06. Timely Payments.......................................................................28
Section 5.07. Successor Indenture Trustee...........................................................28
Section 5.08. Inspection............................................................................28
Section 5.09. Periodic Reports of the Accountants...................................................28
Section 5.10. Other Actions.........................................................................28
Section 5.11. Trust Depositor Financial Information; Other Information..............................29
Section 5.12. Lenders' Identities...................................................................29
ARTICLE VI REPRESENTATIONS AND WARRANTIES AND AGREEMENTS OF THE LENDERS................................29
Section 6.01. Representations and Warranties of the Lenders.........................................29
ARTICLE VII [RESERVED].................................................................................30
ARTICLE VIII MISCELLANEOUS.............................................................................30
Section 8.01. Amendments and Waivers................................................................30
Section 8.02. Cash Collateral Account Withdrawal Statement..........................................30
Section 8.03. Servicing Transfer....................................................................30
Section 8.04. Governing Law.........................................................................31
Section 8.05. No Waiver.............................................................................31
Section 8.06. Severability..........................................................................31
Section 8.07. Termination...........................................................................31
Section 8.08. Successors and Assigns; Assignments...................................................32
Section 8.09. Notices...............................................................................34
Section 8.10. Survival of Representations and Warranties............................................34
Section 8.11. Exclusive Benefit.....................................................................34
Section 8.12 Limitation of Remedies................................................................34
Section 8.13. Counterparts..........................................................................34
Section 8.14. Previous Agreements...................................................................35
Section 8.15. Waiver of Jury Trial..................................................................35
Section 8.16. Headings..............................................................................35
Section 8.17. Jurisdiction, Consent to Service of Process...........................................35
Section 8.18. Bankruptcy............................................................................35
Section 8.19. Nonpetition Agreements; Rights in Trust Property......................................35
Section 8.20. Agent.................................................................................36
Section 8.21. Income Tax Characterization...........................................................38
Section 8.22. Indenture Trustee.....................................................................38
Section 8.23. Confidentiality.......................................................................38
ii
EXHIBITS
Exhibit A - Form of [Assignment and Assumption][Participation] Agreement
Exhibit B - Form of Monthly Status Report
Exhibit C - Form of Confidentiality Agreement
iii
This LOAN AGREEMENT, dated as of April 1, 2000 (this "Agreement"), among
CIT EQUIPMENT COLLATERAL 2000-1 (the "Trust"), THE CHASE MANHATTAN BANK, not in
its individual capacity but solely as indenture trustee (the "Indenture
Trustee"), NCT FUNDING COMPANY, L.L.C., a Delaware limited liability company, as
trust depositor (in its capacity as trust depositor, together with its
successors, the "Trust Depositor"), AT&T CAPITAL CORPORATION, in its individual
capacity (in such capacity, "TCC") and as servicer (in such capacity, together
with its successors and assigns, the "Servicer"), the Lender Parties hereto from
time to time as lenders (each individually a "Lender" and, collectively, the
"Lenders") and AT&T CAPITAL CORPORATION, as agent for the Lenders (together with
its successors in such capacity, the "Agent").
WHEREAS, the Trust Depositor, the Servicer, the Trust and Newcourt
Financial USA Inc., a Delaware corporation ("NFUSA") have entered into a Pooling
and Servicing Agreement, dated as of April 1, 2000 (as the same may from time to
time be amended, modified or otherwise supplemented, the "Pooling Agreement"),
for the Trust; and
WHEREAS, the Trust proposes to issue and sell a Series of Receivable-Backed
Notes (the "Notes") divided into eight classes in the manner designated pursuant
to an Indenture, dated April 1, 2000, between the Trust and the Indenture
Trustee (as the same may be further amended, supplemented or otherwise modified
from time to time, the "Indenture"); and
WHEREAS, the Trust proposes to issue a certificate (the "Equity
Certificate") pursuant to an Amended and Restated Trust Agreement, dated as of
April 1, 2000 (the "Trust Agreement"), between the Trust Depositor and the Owner
Trustee; and
WHEREAS, it is a condition to the issuance of such Notes that the Lenders
enter into this Agreement and make the Loans provided for herein;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and other good and valuable consideration, the receipt and adequacy of which are
hereby expressly acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.
(a) Unless otherwise defined herein, all capitalized terms used in this
Agreement shall have the meanings given to them in the Pooling Agreement (as
defined below).
(c) The following terms shall have the following meanings:
"Act" shall mean the Securities Act of 1933, as amended.
"Agreement" shall mean this Loan Agreement as the same may be further
amended, supplemented or otherwise modified from time to time.
"Assignment" has the meaning assigned thereto in Section 8.08(b).
"Assignment Agreement" shall mean an agreement substantially in the form of
Exhibit A hereto.
"Available Funds" shall mean, with respect to each Payment Date, the sum of
(a) the amount distributed by the Servicer or the Indenture Trustee pursuant to
Section 7.05(a)(v) of the Pooling Agreement to be applied in accordance with
this Agreement on such Payment Date, and (b) Investment Earnings with respect to
such Payment Date.
"Cash Collateral Account Surplus" means, as of any Payment Date, the
amount, if any, by which the amount on deposit in the Cash Collateral Account
exceeds the Required Cash Collateral Amount (after giving effect to any
distributions to be made pursuant to Section 8.02 of the Indenture and Section
2.02(c) of this Agreement and any withdrawals pursuant to Section 7.05(d) of the
Pooling Agreement, in each case with respect to such Payment Date).
"Commission" shall mean the Securities and Exchange Commission.
"Commitment" shall mean, as to each Lender, the obligation of such Lender
to fund its portion of the Loan in an amount equal to the amount of its Total
Commitment.
"Confidentiality Agreement" shall mean an agreement substantially in the
form of Exhibit C hereto.
"Dollars" and "$" shall mean the lawful currency of the United States of
America.
"Early Termination Date" shall mean the date, if any, on which the Trust
Depositor shall purchase the corpus of the Trust pursuant to Section 7.08 of the
Pooling Agreement.
"Eligible Investments" shall mean any investment (including deposits with,
or securities issued by, a Lender or the Agent) that is one of the following
types of investments:
(i) direct obligations of, and obligations fully guaranteed by, the
United States of America, the Federal Home Loan Mortgage Corporation (if
then rated Aaa by Moody's), the Federal National Mortgage Association, or
any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America and which are non-callable;
(ii) demand and time deposits in, certificates of deposit of, bankers'
acceptances issued by, or federal funds sold by any depository institution
or trust company (including the Trustees or any Affiliate of the Trustees,
acting in their commercial capacity) incorporated under the laws of the
United States of America or any state thereof or the District of Columbia
(or any domestic branch or agency of a foreign
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bank) and subject to supervision and examination by federal and/or
state authorities, so long as, at the time of such investment or
contractual commitment providing for such investment, the commercial paper
or other short-term debt obligations of such depository institution or
trust company have been rated at least P-1 or higher from Moody's and A-1+
from Standard & Poor's; or any other demand or time deposit or certificate
of deposit which is fully insured by the Federal Deposit Insurance
Corporation and which is rated at least P-1 by Moody's;
(iii) repurchase obligations with respect to any security described in
either clause (i) or (ii) above and entered into with any institution whose
commercial paper is at least rated P-1 from Moody's and at least A-1+ by
Standard & Poor's;
(iv) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or
any State thereof which have a credit rating of at least A2 or P-1 from
Moody's and at least AAA from Standard & Poor's at the time of such
investment (or, with respect to the investment of any amounts on deposit in
the Certificate Distribution Account, such Standard & Poor's rating shall
be at least A);
(v) commercial paper (which may be issued by CIT) having a rating of
at least P-1 from Moody's and at least A-1+ from Standard & Poor's at the
time of such investment;
(vi) money market funds which are rated Aaa by Moody's and at least
AAAm or AAAm-G by Standard & Poor's, including funds which meet such rating
requirements for which the Trustees or an affiliate of the Trustees serves
as an investment advisor, administrator, shareholder servicing agent and/or
custodian or subcustodian, notwithstanding that (i) such Trustee or an
affiliate of such Trustee charges and collects fees and expenses from such
funds for services rendered, (ii) such Trustee charges and collects fees
and expenses for services rendered pursuant to this instrument, and (iii)
services performed for such funds and pursuant to this instrument may
converge at any time. (The Seller and the Servicer specifically authorize
such Trustee or an affiliate of such Trustee to charge and collect all fees
and expenses from such funds for services rendered to such funds, in
addition to any fees and expenses such Trustee may charge and collect for
services rendered pursuant to this instrument); and
(vii) any other investments approved by the Rating Agencies.
No Eligible Investment may have an "r" or comparable symbol affixed to its
rating.
"Governmental Authority" shall mean any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Holdback Amount" shall have the meaning assigned thereto in Section 2.01.
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"Holdback Amount Rate" shall mean, with respect to any Loan Interest
Period, a per annum rate equal to the LIBOR Rate determined for such Loan
Interest Period plus 5.25% per annum.
"Income Taxes" has the meaning assigned thereto in Section 2.08(b).
"Indemnitee" has the meaning assigned thereto in Section 2.10(a).
"Invested Share" has the meaning assigned thereto in Section 2.06.
"Investment Earnings" shall mean, with respect to any Payment Date, all
interest and investment earnings (net of losses and investment expenses) on
Eligible Investments made with funds on deposit in the Cash Collateral Account
and received during the Loan Interest Period immediately preceding such Payment
Date.
"Lending Office" shall mean initially, the office (if any) of a Lender
designated as such, in the case of any Lender listed on the signature pages
hereof, with its signature hereto and, in the case of any assignee, in Schedule
II to the related Assignment Agreement, and thereafter, such other office of
such Lender that shall be making or maintaining its Loan, the address of which
other office shall have been previously provided to the Trust Depositor, the
Servicer and the Agent in writing.
"LIBOR Business Day" means any day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency deposits)
in London and New York.
"LIBOR Rate" shall mean (x) with respect to the initial Loan Interest
Period, 6.375% and (y) with respect to any Loan Interest Period or portion
thereof, the rate per annum shown on page 3750 of the Telerate screen or any
successor page as the composite offered rate for London interbank deposits for a
period of one month, as shown under the heading "USD" as of 11:00 a.m. (London
Time) two LIBOR Business Days prior to the first day of such Loan Interest
Period; provided that in the event no such rate is shown, the LIBOR Rate shall
be the rate per annum (rounded upwards, if necessary, to the nearest 1/16th of
one percent) based on the rates at which Dollar deposits for a period of one
month are displayed on page "LIBOR" of the Reuters Monitor Money Rates Service
or such other page as may replace the LIBOR page on that service for the purpose
of displaying London interbank offered rates of major banks as of 11:00 a.m.
(London time) two LIBOR Business Days prior to the first day of such Loan
Interest Period (it being understood that if at least two such rates appear on
such page, the rate will be the arithmetic mean of such displayed rates);
provided further, that in the event fewer than two such rates are displayed, the
LIBOR Rate shall be the rate per annum equal to the average of the rates at
which deposits in Dollars are offered by the Reference Banks at approximately
11:00 a.m. (London time) two LIBOR Business Days prior to the first day of such
Loan Interest Period to prime banks in the London interbank market for a period
of one month, it being understood that if at least two such quotations are
provided, the rate shall be the arithmetic mean of such provided rates; provided
further that if fewer than two such rates are provided, the rate shall be the
arithmetic mean of the rates quoted by major banks in New York City, selected by
the
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Servicer, approximately 11:00 a.m. (New York City time) on the first day of
such Loan Interest Period to leading European banks for Dollar deposits for a
period of one month. If the LIBOR Rate cannot be determined for a Loan Interest
Period in accordance with the foregoing, the LIBOR Rate for such Loan Interest
Period shall be equal to the LIBOR Rate for the immediately preceding Loan
Interest Period.
"Loan" has the meaning assigned thereto in Section 2.01.
"Loan Interest Period" shall mean (a) with respect to the initial Payment
Date, the period from and including the Closing Date to but excluding the
initial Payment Date and (b) with respect to each subsequent Payment Date, the
period from and including the Payment Date immediately preceding such Payment
Date to but excluding such subsequent Payment Date.
"Loan Rate" shall mean, with respect to any Loan Interest Period, a per
annum rate equal to the LIBOR Rate determined for such Loan Interest Period plus
3.00% per annum.
"NFUSA" shall mean Newcourt Financial USA Inc.
"Officer's Certificate" shall mean a certificate delivered to the Agent and
signed by any authorized officer of the Trust Depositor or TCC, as the case may
be.
"Participant" has the meaning assigned thereto in Section 8.08(f).
"Pooling Agreement" shall mean the Pooling and Servicing Agreement, dated
as of April 1, 2000 by and among the Trust Depositor, the Trust, TCC
(individually and as Servicer) and NFUSA.
"Pro Rata Share" shall mean, as of any date of determination with respect
to each Lender, the percentage equivalent of a fraction the numerator of which
shall be an amount equal to the portion of the unpaid principal amount of the
Loan owing to such Lender at such time (after giving effect to all Assignments
effective on or prior to such date of determination) and the denominator of
which shall be an amount equal to the unpaid principal amount of all of the
Lenders' Loans at such time.
"Prospectus" shall mean the prospectus and prospectus supplement as filed
with the Commission under Rule 424(b) of the Act relating to the Notes.
"Reference Banks" shall mean the principal London offices of three major
banks in the London interbank market selected by the Agent.
"Registration Statement" shall mean the registration statement on Form S-3
(Registration No. 333-74847), as amended from time to time and including
incorporated documents and exhibits, filed by the Trust Depositor with the
Commission pursuant to the Act relating to the Notes to be issued by the Trust.
"Regulatory Change" shall mean, as to any or all of the initial Lenders,
any change occurring after the date of the execution and delivery of this
Agreement (or, in the case of any
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assignee Lender, the effective date of the related Assignment Agreement),
in any (or the adoption after such date of any new):
(i) United States federal or state law or foreign law applicable to
such Lender; or
(ii) regulation, interpretation (whether formal or informal),
directive, guideline or request (whether or not having the force of law)
applicable to such Lender of any court or other judicial authority or any
Governmental Authority charged with the interpretation or administration of
any law referred to in clause (i) or of any fiscal, monetary or other
authority or central bank or other comparable entity having jurisdiction
over such Lender.
"Repayment Amount" shall mean the sum of all amounts payable with respect
to the aggregate principal amount of the Lenders' Loans and interest on such
Loans and all other amounts owing to the Agent (other than under Section
8.20(d)) and the Lenders hereunder.
"Required Cash Collateral Amount" shall have the meaning specified in
Section 1.01 of the Pooling Agreement.
"Required Lenders" means, such Lenders whose Pro Rata Shares in the
aggregate represent at least 51% of the unpaid principal amount of the Loans of
the Lenders.
"Service Transfer" shall mean the occurrence of a Servicer Termination
Event and the appointment of a successor Servicer pursuant to Section 8.03 of
the Pooling Agreement.
"Taxes" has the meaning assigned thereto in Section 2.08(b).
"Termination Date" shall mean the earlier of (i) the date on which the
Indenture is terminated in accordance with its terms or (ii) May 20, 2009.
"Total Commitment" shall mean, with respect to a Lender, the amount set
opposite such Lender's name on the signature pages hereof or on Schedule I to an
Assignment Agreement pursuant to which such Lender acquired an interest
hereunder as its "Total Commitment," as the same may be reduced pursuant to an
Assignment pursuant to which such Lender shall have assigned all or a portion of
such interest.
Section 1.02. Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; and Section, subsection,
Schedule, Attachment and Exhibit
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references are to this Agreement, unless otherwise specified. The words
"including" and "include" shall be deemed to be followed by the words "without
limitation".
ARTICLE II
AMOUNT AND TERMS OF COMMITMENT
Section 2.01. Commitment. Subject to the terms and conditions hereof, each
of the Lenders agree, at the request of and for the benefit of, the Trust
Depositor, to make their respective loans to the Trust (each, a "Loan") on the
Closing Date in a principal amount equal to the amount set forth as each such
Lender's Commitment opposite its name on the signature pages hereof, the
proceeds of which Loans, immediately upon the making of such Loans, shall be
deposited directly into the Cash Collateral Account in accordance herewith. The
aggregate initial balance of the Loans is $9,492,882. It will be a condition to
the obligations of the Lenders to make such Loans that the Trust retain
$32,275,797 from the proceeds of the sale of the Notes pursuant to the Indenture
and as described in the Underwriting Agreement, and deposit such amount into the
Cash Collateral Account on the Closing Date (the "Holdback Amount").
Section 2.02. Payment of the Loans; Loan Account.
(a) Subject to the provisions of Section 2.09 relating to the nonrecourse
nature of the obligation to pay the Repayment Amount, the Loans shall be due and
payable in full on the Termination Date, unless otherwise payable in whole or in
part on such earlier date provided under this Agreement. Subject to Section
2.09, the Indenture Trustee, on behalf of the Trust, agrees to reduce and prepay
the Loans in whole or in part as specified herein from Available Funds and, to
the extent not previously repaid, to repay the Loans in full on the Termination
Date, as provided in Sections 2.02(c), 2.02(d), 2.02(e), 2.02(f) and 2.02(g). No
payments shall be made in respect of the unpaid principal amount of the Holdback
Amount until the Loans are paid in full.
(b) Each Lender is authorized to record (A) the date and amount of its
Total Commitment, (B) the date and amount of each payment and repayment of
principal of its Loan and (C) the interest rate or rates from time to time in
effect with respect to its Loan and the Loan Interest Periods applicable thereto
in the books and records of such Lender and in such manner as is customary for
such Lender. A certificate of an officer of such Lender, prepared in good faith
setting forth in reasonable detail the information so recorded, shall constitute
prima facie evidence of the accuracy of the information so recorded; provided
that the failure to make any such recording shall not in any way affect the
obligations of the Trust Depositor, the Servicer, the Trust, or the Indenture
Trustee hereunder.
(c) On each Payment Date (if such date is not the Termination Date), the
Indenture Trustee at the written direction of the Servicer upon which the
Indenture Trustee may conclusively rely shall distribute Available Funds with
respect to such date to the following Persons or accounts in the order of
priority listed below:
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(i) to the extent not previously paid, an amount equal to all interest
(including interest on previously unpaid interest amounts) due on the
Loans, as calculated in accordance with Sections 2.03 and 2.04, shall be
paid to the Agent for distribution to the Lenders in accordance with their
respective Pro Rata Share;
(ii) [reserved];
(iii) after giving effect to any payment made on such Payment Date
under Section 2.02(d)(i), an amount, not to exceed the unpaid principal
amount of the Loans, equal to the excess, if any, of (x) the aggregate
unpaid principal amount of the Lenders' Loans and the Holdback Amount as of
such date over (y) the amount on deposit in the Cash Collateral Account as
of such date (determined after giving effect to all deposits to and
withdrawals from the Cash Collateral Account with respect to such Payment
Date), shall be paid to the Agent for distribution to the Lenders in
accordance with their respective Pro Rata Share as a prepayment of the
Loans;
(iv) after giving effect to any payment made on such Payment Date
under Sections 2.02(d)(i) and 2.02(c)(iii), from and after the Payment Date
on which the Aggregate Principal Amount of the Notes is less than 10% of
the initial Contract Pool Principal Balance, an amount up to the unpaid
principal amount of the Loans, shall be paid to the Agent for distribution
to the Lenders in accordance with their respective Pro Rata Share as a
prepayment of the Loans;
(v) [reserved];
(vi) [reserved];
(vii) an amount equal to the sum of all fees, expenses and other
amounts due and payable to the Lenders under Sections 2.07, 2.08 and 2.10
shall be paid to the Agent for distribution to the Lenders.
(viii) [reserved];
(ix) to the extent not previously paid, an amount equal to all
interest (including interest on previously unpaid interest amounts) due on
the Holdback Amount, as calculated in accordance with Sections 2.03 and
2.04, shall be paid to the Trust Depositor; and
(x) after giving effect to any payment made on such Payment Date under
Section 2.02(d)(vii), if, on such Payment Date, the Loans have been paid in
full, an amount equal to the excess, if any, of (x) the aggregate unpaid
principal amount of the Holdback Amount as of such date over (y) the amount
on deposit in the Cash Collateral Account as of such date (determined after
giving effect to all deposits to and withdrawals from the Cash Collateral
Account with respect to such Payment Date), shall be paid to the Trust
Depositor.
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(d) On any Payment Date on which there is a Cash Collateral Account Surplus
(if such date is not the Termination Date), the Indenture Trustee, at the
written direction of the Servicer upon which the Indenture Trustee may
conclusively rely, shall pursuant to Section 7.02(b) of the Pooling Agreement
and this Agreement, withdraw from the Cash Collateral Account an amount equal to
the Cash Collateral Account Surplus and apply such amount in the order of
priority listed below:
(i) an amount up to the unpaid principal amount of the Loans, shall be
paid to the Agent for distribution to the Lenders in accordance with their
respective Pro Rata Share as a prepayment of the Loans;
(ii) [reserved];
(iii) after giving effect to any payment made on such Payment Date
under Section 2.02(c), to the extent not previously paid, an amount equal
to all interest (including interest on previously unpaid interest amounts)
due on the Loans, as calculated in accordance with Sections 2.03 and 2.04,
shall be paid to the Agent for distribution to the Lenders in accordance
with their respective Pro Rata Share;
(iv) [reserved];
(v) an amount equal to the sum of all fees, expenses and other amounts
due and payable to the Lenders under Sections 2.07, 2.08 and 2.10 shall be
paid to the Agent for distribution to the Lenders;
(vi) [reserved];
(vii) if, on such Payment Date, the Loans have been paid in full, an
amount up to the unpaid principal amount of the Holdback Amount, shall be
paid to the Trust Depositor as a prepayment of the Holdback Amount; and
(viii) the balance, if any, shall be paid to the Trust Depositor.
(e) On the Termination Date (including any Early Termination Date), all
Available Funds and all amounts on deposit in the Cash Collateral Account on
such date (after giving effect to all withdrawals from the Cash Collateral
Account required to be made on such date with respect to the Notes) shall be
paid by the Indenture Trustee, at the written direction of the Servicer upon
which the Indenture Trustee may conclusively rely, in the order of priority
listed below:
(i) an amount equal to all interest (including interest on previously
unpaid interest amounts) owed to the Lenders shall be paid to the Agent for
distribution to the Lenders in accordance with their respective Pro Rata
Share;
(ii) [reserved];
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(iii) an amount equal to the aggregate unpaid principal amount of the
Loans shall be paid to the Agent for distribution to the Lenders in
accordance with their respective Pro Rata Share;
(iv) [reserved];
(v) an amount equal to all amounts due to increased costs owed to the
Lenders in accordance with Section 2.02(c)(vii) shall be paid to the Agent
for distribution to the Lenders;
(vi) [reserved];
(vii) an amount equal to all unpaid interest owed to the Trust
Depositor and the unpaid balance of the Holdback Amount shall be paid to
the Trust Depositor (assuming for this purpose that any portion of
Available Funds described in clause (a) of the definition thereof is
applied to this clause (vii) only after all other Available Funds and all
amounts available in the Cash Collateral Account have been fully utilized);
and
(viii) the balance, if any, in the Cash Collateral Account shall be
paid to the Equity Certificateholder.
(f) Unless all of the Lenders agree otherwise, in the event that (i) an
Early Termination Date shall have occurred and (ii) each Lender has not been
paid its Pro Rata Share of the Repayment Amount in full on or prior to such
Early Termination Date, the Indenture Trustee, at the written direction of the
Servicer upon which the Indenture Trustee may conclusively rely, shall pay to
the Agent on behalf of the Lenders for application in accordance with
subsections 2.02(e)(i)-(viii) all amounts payable to (x) the Cash Collateral
Account pursuant to Section 7.05(a)(v) of the Pooling Agreement with respect to
such Early Termination Date or (y) the Lenders (for application pursuant to this
Agreement) pursuant to Section 7.05(a)(v) of the Pooling Agreement with respect
to such Early Termination Date. Thereafter, the Notes shall be deemed to remain
outstanding as if such Early Termination Date had not occurred and (i) the Trust
Depositor, the Servicer, the Trust and the Indenture Trustee shall (subject to
Section 5.01) continue to perform all of their obligations, as specified under
the Pooling Agreement, the Indenture and the other Transaction Documents, for
the benefit of the Lenders regardless of the occurrence of such Early
Termination Date and (ii) the Trust Depositor or the Servicer, as the case may
be, shall have the right to receive and the Indenture Trustee shall so remit
based upon the written directions of the Servicer upon which the Indenture
Trustee may conclusively rely all amounts received by the Trust Depositor or the
Servicer which would constitute all amounts that would otherwise be available
for distribution pursuant to Section 7.05 of the Pooling Agreement, to the
extent such amounts would have been payable to the Noteholders, or to the
Servicer as its Servicing Fee, pursuant to the Indenture or the Pooling
Agreement, and the remainder of such amounts (to the extent such amounts would
have been payable to the Cash Collateral Account or to the Lenders (for
application in accordance with the terms of this Agreement) had the Early
Termination Date not occurred) shall be paid to the Agent on behalf of the
Lenders until the earlier of (A) the date the Repayment Amount and all other
amounts payable to each Lender hereunder shall have been paid in full and (B)
the date on which the Notes would have been paid
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in full (assuming such Early Termination Date is disregarded as described
above and after giving effect to any distributions which would be made to the
Cash Collateral Account or the Lenders on such date).
(g) In the event that (i) a withdrawal from the Cash Collateral Account has
been made pursuant to Section 7.05(d) of the Pooling Agreement on the final
Maturity Date or on any Payment Date described in Section 7.05(d)(iii) of the
Pooling Agreement, (ii) the Notes have been paid in full, and (iii) each Lender
has not been paid its Pro Rata Share of the Repayment Amount in full on or prior
to the date of such withdrawal, the Notes shall thereafter be deemed to remain
outstanding as if the final Maturity Date with respect to the Notes or such
Payment Date had not occurred and (x) the Trust Depositor, the Servicer, the
Trust and the Indenture Trustee shall (subject to Section 5.01) continue to
perform all of their obligations, as specified under the Pooling Agreement, the
Indenture and the other Transaction Documents, for the benefit of the Lenders
regardless of the occurrence of such final Maturity Date and (y) the Lenders
shall have the right to receive and the Indenture Trustee shall remit pursuant
to the written instructions of the Servicer upon which the Indenture Trustee may
conclusively rely, in accordance with the provisions of Section 7.05(a) of the
Pooling Agreement, all amounts, up to an amount equal to the Repayment Amount,
received by the Trust Depositor or the Servicer, which amounts would constitute
payments to the Lenders in respect of the Loans, to the extent such amounts
would have been payable to the Noteholders, the Cash Collateral Account or the
Lenders and the remainder of such amounts shall be paid to the Trust Depositor
(to the extent of any unpaid interest owed to the Trust Depositor and the unpaid
balance of the Holdback Amount) or the Equity Certificateholder until the
earlier of (A) the date the Repayment Amount and all other amounts payable to
each Lender hereunder shall have been paid in full or (B) the date on which the
Notes would have been paid in full (assuming such final Maturity Date is
disregarded as described above and after giving effect to any distributions that
would be made to the Cash Collateral Account or the Lenders on such date).
Section 2.03. Interest Rate and Payment Date.
(a) Each Loan shall bear interest during each Loan Interest Period at a
rate per annum equal to the Loan Rate. The Holdback Amount shall bear interest
during each Loan Interest Period at a rate per annum equal to the Holdback
Amount Rate.
(b) Interest on the principal amount of all of the Lenders' Loans and the
Holdback Amount outstanding from time to time shall be payable monthly in
arrears on each Payment Date, as provided in subsections 2.02(c) and (d) and on
the Termination Date as provided in subsection 2.02(e).
(c) Except as otherwise provided herein, if any amount of interest or any
other Repayment Amount shall not be paid on the date that such amount becomes
due and payable hereunder, such overdue amount shall bear interest at a rate per
annum equal to the Loan Rate applicable from time to time plus 1.00% per annum,
in the case of the Loan, or the Holdback Amount Rate applicable from time to
time plus 1.00% per annum, in the case of the Holdback Amount, for each day from
and including the date of such nonpayment to but excluding the date such overdue
amount is paid in full (after, as well as before, judgment).
-11-
Section 2.04. Computation of Interest and Fees.
(a) Interest calculated by reference to the LIBOR Rate shall be calculated
on the basis of a 360-day year for the actual days elapsed. The Agent shall
calculate each LIBOR Rate and shall notify in writing the Servicer and the
Indenture Trustee of each determination of the respective rates applicable from
time to time, in each case as soon as practicable (but in no event later than
five Business Days) after determination of LIBOR for each Loan Interest Period.
(b) Any up-front or ongoing fees and expenses payable to the Agent shall be
paid by the Trust Depositor or the Servicer as agreed to by the parties.
Section 2.05. Payments. All payments to be made hereunder to the Lenders,
whether on account of principal, interest, fees or otherwise, shall be made
without set-off (other than as specified in Section 2.06(c) below) or
counterclaim and prior to 1:00 p.m., New York City time, on the due date thereof
in Dollars and in immediately available funds. All payments to the Lenders shall
be made to the Agent's account specified in Section 8.10(b), and shall be
distributed promptly by the Agent to the parties entitled thereto in the same
type of funds received at their respective addresses pursuant to Section 8.10.
Section 2.06. Cash Collateral Account Administration, Direction of Eligible
Investments.
(a) The Indenture Trustee shall, for the benefit of the Noteholders, the
Lenders and the Trust Depositor, as their interests appear in the Indenture, the
Pooling Agreement and herein, (i) maintain the Cash Collateral Account in
accordance with Sections 7.01 and 7.03 of the Pooling Agreement, (ii) invest
funds on deposit in the Cash Collateral Account in Eligible Investments in
accordance with the written instructions of the Servicer and (iii) otherwise
comply with the provisions of the Indenture and Pooling Agreement as such
provisions relate to the Cash Collateral Account or such Eligible Investments.
Notwithstanding the above, each Lender may give the Servicer written
investment instructions from time to time with respect to Eligible Investments
provided by such Lender which such Lender desires to be acquired with its Pro
Rata Share (as to each Lender, its "Invested Share") of the funds available for
investment in the Cash Collateral Account, provided that (i) such Lender is
rated sufficiently to qualify such investments as Eligible Investments, (ii)
such Lender pays a minimum yield equal to the then applicable LIBOR Rate for the
corresponding Loan Interest Period on such Invested Share, and (iii) such
investments will commence on the beginning of such Loan Interest Period and
mature on the last day of such Loan Interest Period. In the absence of such
instructions from a Lender, the Servicer will direct the investment of such
Lender's Invested Share of such funds in such Eligible Investments as the
Servicer shall deem appropriate in its sole discretion. Funds available for
investment in the Cash Collateral Account in excess of the aggregate of the
Invested Shares of all Lenders will be invested in such Eligible Investments as
the Servicer shall deem appropriate in its sole discretion.
(b) Without limiting any claim which the Trust, the Owner Trustee, the
Indenture Trustee, the Trust Depositor, the Servicer or any other Lender may
have against the
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instructing Lender, in no event shall the Servicer have any responsibility
or liability to the Trust, the Owner Trustee, the Indenture Trustee, the Trust
Depositor, the Servicer or any other Lender or other Person for any direction
given to the Indenture Trustee (or other holder of the Cash Collateral Account)
or other action taken to the extent such direction is given or action is taken
at the written instruction of a Lender as provided in this Section 2.06. The
Indenture Trustee shall not be liable for investment losses on Eligible
Investments selected by the Servicer pursuant to this Section 2.06.
(c) To the extent that a Lender's Invested Share of funds in the Cash
Collateral Account are invested in Eligible Investments issued by such Lender,
(i) such Lender shall retain the Investment Earnings due on such Eligible
Investments, which amounts shall be applied by such Lender to pay, and such
retention shall constitute (to the extent of such retention) a payment and
discharge of, accrued interest on the outstanding portion of the Loan of such
Lender as contemplated by Section 2.02 hereof, and (ii) on any date on which the
principal amount of the Loan from such Lender is to be repaid or prepaid as
provided in this Agreement from funds available therefor from the Cash
Collateral Account, such Lender shall be entitled to retain from any such
Eligible Investment the amount of such repayment or prepayment, which amount
shall be applied by such Lender to repay or prepay, and such retention shall
constitute a payment or prepayment of, such principal amount of such Loan. Each
Lender agrees that any retention under this Section 2.06(c) is merely an
administrative convenience and is not intended to change the amount of funds
that would otherwise be on deposit in the Cash Collateral Account and available
for the benefit of the Noteholders. Accordingly, each Lender agrees that such
retention shall only occur to the extent that funds which are intended to be
distributed to the Lenders in accordance herewith and which are the basis for a
retention, are actually available for such purpose and, if for any reason such
funds are not available, no Lender shall be entitled to retain any amounts with
respect thereto. To the limited extent provided in this subsection 2.06(c), each
Lender shall have a right of off-set against its Invested Share of funds in the
Cash Collateral Account and Investment Earnings thereon; provided that no
exercise of such right of off-set shall constitute a release or satisfaction of
such obligation, except to the extent so retained and applied.
Section 2.07. Increased Costs.
(a) Subject to the provisions of Section 2.09 relating to the nonrecourse
nature of the obligation to pay the Repayment Amount, if any Regulatory Change
after the date hereof (or, in the case of any assignee Lender, after the
effective date of the relevant Assignment Agreement) imposes, modifies or holds
applicable any reserve, deposit, capital adequacy, compulsory loan or similar
requirement against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any other
acquisition of funds by, the Lending Office of such Lender; and the result of
the foregoing is to increase the cost to such Lender due to maintaining its Loan
or issuing Eligible Investments, or to reduce any amount receivable or payment
due hereunder in respect thereof then, and in any such case, after submission by
such Lender to the Owner Trustee, the Indenture Trustee, the Trust Depositor and
the Servicer (with a copy to the Agent) of a written request therefor, the
Servicer shall direct the Indenture Trustee in writing to, and, at such
direction, the Indenture Trustee shall, pay to such Lender, but only from
amounts which are then or thereafter become available pursuant to Section
2.02(c), (d) or (e), any additional amounts necessary to compensate such Lender
for such
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increased cost or reduced amount receivable. Any amounts required to be
paid pursuant to the preceding sentence shall be paid on the first Payment Date
that occurs at least 30 days following demand thereof and interest at the Loan
Rate shall accrue on any amount unpaid after such Payment Date.
(b) Subject to the provisions of Section 2.09 relating to the nonrecourse
nature of the obligation to pay the Repayment Amount, if any Lender shall have
reasonably determined that any Regulatory Change after the date hereof (or, in
the case of any assignee Lender, after the effective date of the relevant
Assignment Agreement) regarding capital adequacy has the effect of reducing the
rate of return on such Lender's capital as a consequence of its Commitment or
its obligations hereunder, under its Loan, to a level below that which such
Lender or such corporation could have achieved but for such Regulatory Change
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then, from time to time, after submission by such Lender to the Owner Trustee,
the Indenture Trustee, the Trust Depositor and the Servicer (with a copy to the
Agent) of a written request therefor, the Servicer shall direct the Indenture
Trustee in writing to, and, at such direction, the Indenture Trustee shall pay
to such Lender, but only from amounts which are then, or thereafter become,
available pursuant to Section 2.02(c), (d) or (e), such additional amount or
amounts as will compensate such Lender for such reduction. Any amounts required
to be paid pursuant to the preceding sentence shall be paid on the first Payment
Date that occurs at least 30 days following demand thereof and interest at the
Loan Rate, shall accrue on any amount unpaid after such Payment Date.
(c) Each Lender agrees that it shall use its best efforts to take any
necessary actions, including, subject to applicable law and only if such change
will not alter, in a way deemed by such Lender to be material, its obligations
under this Agreement, designating a different Lending Office for its Loan, that
will avoid the need for, or reduce the amount of, any increased amounts referred
to in Section 2.07(a) or (b); provided that no such Lender shall be obligated to
take any actions that would, in the reasonable opinion of such Lender, be
unlawful or otherwise disadvantageous to such Lender or would result in any
unreimbursed cost or expense to such Lender which cost and expense would not
have been incurred but for such actions. If any increased amounts referred to in
Section 2.07(a) or (b) shall not be eliminated or reduced by the designation of
a different Lending Office or other actions taken by the affected Lender and
payment thereof hereunder shall not be waived by such Lender within 15 days
after the Trust Depositor shall have given written notice to such Lender and the
Agent of its intent to replace such Lender, the Trust Depositor shall have the
right to (A) request in writing that the Agent assist the Trust Depositor, and
the Agent hereby agrees upon receipt of such request to assist the Trust
Depositor, to obtain a replacement lender for such Lender that is acceptable to
the Trust Depositor or (B) itself seek to replace the Lender hereunder with a
new lender which is reasonably acceptable to the Agent; provided that (i) such
Lender shall not be replaced hereunder with a new lender until such Lender has
been repaid in full all amounts owed to it pursuant to this Agreement and (ii)
if the Lender to be replaced is the Agent, a replacement Agent shall have been
appointed by the remaining Lenders and the Agent to be replaced shall have been
paid all amounts owing to it as Agent pursuant to this Agreement; provided
further, that the Trust Depositor shall provide the Lender to be replaced with
an Officer's Certificate stating that such new lender has advised the Trust
Depositor that it is not then subject to, or has agreed not to
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seek, all or a portion of such increased amounts. Subject to the provisions
of this Section 2.07(c), each affected Lender hereby agrees to assign all of its
rights and obligations to such replacement Lender pursuant to an Assignment
Agreement, subject to payment in full of such affected Lender's Loan, together
with all accrued interest, fees and other amounts due to it hereunder (including
amounts due it under this Section 2.07).
(d) Each Lender claiming increased amounts described in Section 2.07(a) or
(b) will furnish to the Trust Depositor, the Owner Trustee, the Indenture
Trustee and the Servicer an officer's certificate prepared in good faith setting
forth in reasonable detail the basis and amount of each request by such Lender
for any such increased amounts referred to in Section 2.07(a) or (b).
Determinations by a Lender of any increased amounts referred to in Section
2.07(a) or (b) shall be (i) made without regard to any participations in its
Loan sold by such Lender and as if such Lender held for its own account the
amount of the Loan so participated and (ii) prima facie evidence of such
increased costs.
(e) Notwithstanding any provisions of this Agreement, any Lender (other
than a Lender which acquires its assignment directly from the initial Lender)
who has assumed the rights and obligations of another Lender shall not be
entitled to receive any greater payment under Section 2.07(a) or (b) or 2.08(b)
than such other Lender would have been entitled to receive with respect to the
rights and obligations so assigned if such Assignment shall have been made at a
time when the circumstances giving rise to such greater payment were in
existence, unless the Trust Depositor shall have consented in writing to such
Assignment in accordance with Section 8.09(b).
(f) Failure on the part of any Lender to demand compensation for any amount
pursuant to Section 2.07(a) or (b) with respect to any period shall not
constitute a waiver of such Lender's right to demand compensation with respect
to such period; provided, however, that a Lender shall not be required to be
compensated for any such amount relating to any period ending, and of which such
Lender has had knowledge, more than six months prior to the date that such
Lender notifies the Servicer in writing thereof. Each Lender agrees to use its
reasonable efforts to notify the Servicer upon obtaining actual knowledge of any
increased amounts described in Section 2.07(a) or (b) incurred or to be incurred
by such Lender for which such Lender plans on seeking compensation pursuant to
Section 2.07(a) or (b); provided, however, that, subject to the proviso set
forth in the preceding sentence, failure to so notify the Servicer shall not
constitute a waiver of such Lender's right to demand such compensation, or
reduce the amount of such compensation that such Lender may demand.
Section 2.08. Taxes.
(a) The Trust Depositor and any successor Trust Depositor covenants and
agrees that for United States federal, state and local income and franchise tax
purposes (i) it is the beneficial owner of the Cash Collateral Account for tax
purposes and (ii) it will report Investment Earnings on the Cash Collateral
Account as its income and pay any tax thereon.
(b) Subject to the provisions of Section 2.09 relating to the nonrecourse
nature of the obligation to pay the Repayment Amount, all payments to the Agent
and each Lender
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under this Agreement and in respect of the Loans shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by the United States or any political subdivision or taxing
authority thereof or therein, or by any taxing authority in any jurisdiction
from or through which the Servicer or the Indenture Trustee, in each case on
behalf of the Trust, effects any payment under this Agreement, excluding, in the
case of any Lender, income taxes and franchise taxes based on the net income of
the Lender or measured by income, gross receipts, assets or capital of the
Lender ("Income Taxes") imposed on such Lender by the taxing authority of any
jurisdiction where (i) such Lender is organized or incorporated, (ii) such
Lender's Lending Office is located, (iii) such Lender's principal office or
headquarters is located or (iv) where such Lender is engaged in business
otherwise than as a result of this Agreement (all such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions and withholdings being
hereinafter called "Taxes"). Notwithstanding the foregoing, Taxes shall not
include taxes or withholdings attributable to amounts withheld under Code
Section 1446. If any Taxes are required to be withheld from any amounts payable
to any Lender hereunder, after submission by such Lender to the Indenture
Trustee, the Owner Trustee, the Trust Depositor and the Servicer (with a copy to
the Agent) of a written request therefor, the amounts so payable to such Lender
shall be increased by the Trust (the amount of such increase to be payable only
to the extent funds are then or thereafter available pursuant to Section
2.02(c), (d) or (e)) to the extent necessary to yield to such Lender (after
payment of all Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Agreement. Whenever any Taxes are
payable by the Trust as promptly as possible thereafter the Servicer shall send
to the Agent a certified copy of an original official receipt received by the
Owner Trustee and the Servicer showing payment thereof. If the Trust (or the
Servicer acting on behalf of the Trust), fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Agent the required
receipts or other required documentary evidence, the Servicer shall request the
Trust in writing to, and the Trust shall pay the Agent or such Lender, as the
case may be, but only to the extent funds are then or thereafter become
available pursuant to Section 2.02(c), (d) or (e), any incremental taxes,
interest or penalties that have or may become payable by the Agent or such
Lender as a result of any such failure. Notwithstanding the foregoing or
anything else contained herein to the contrary, no amounts shall be paid
pursuant to this subsection 2.08(b) to any Lender that is not created or
organized under the laws of the United States, any one of the states thereof or
the District of Columbia for any period with respect to which a Lender fails, or
has failed, to comply with the requirements of subsection 2.08(d).
(c) Any Lender claiming amounts under Section 2.08(b) will furnish to the
Indenture Trustee, the Owner Trustee, the Trust Depositor and the Servicer an
officer's certificate prepared in good faith setting forth in reasonable detail
the basis and amount of each request by such Lender or the Agent, as the case
may be, for such amounts. In calculating amounts payable to a Lender or the
Agent pursuant to the second sentence of Section 2.08(b) arising from the
required withholding from amounts due to such Lender or the Agent hereunder,
such Lender or the Agent, as the case may be, shall take into account the amount
and the timing of its realization of any tax credits available to it with
respect to any such withholding which such Lender reasonably believes are
directly related to this Agreement. Determinations so made by a Lender
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or the Agent, as the case may be, of any Taxes or other amounts referred to
in Section 2.08(b) shall be (i), if such Lender is not the initial Lender, made
without regard to any participations in the Loan sold by such Lender and as if
such Lender held for its own account the amount of the Loan so participated and
(ii) prima facie evidence of any amounts claimed under Section 2.08(b).
(d) Each of the Lenders (including each of the assigned Lenders) that was
not created or organized under the laws of the United States, any one of the
states thereof or the District of Columbia, agrees that, prior to the date on
which the first interest payment hereunder is due thereto, it will deliver to
the Trust Depositor, the Servicer, the Agent and the Indenture Trustee two duly
completed copies of the United States Internal Revenue Service Form 4224 or Form
W-8ECI or, if the Lender is entitled to a complete exemption from withholding
tax pursuant to the applicable tax treaty, Form 1001 or W-8BEN, or in either
case successor applicable or required forms, as the case may be, and such other
forms and information as may be required to confirm the availability of any
applicable exemption from United States federal, state or local withholding
taxes. Each Lender also agrees to deliver to the Trust Depositor, the Servicer,
the Agent and the Indenture Trustee two further copies of the said Form 4224 or
Form W-8ECI, such other applicable forms, or successor applicable forms or other
manner of certification, as the case may be, on or before the date that any such
form expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent form previously delivered by it hereunder and such
extensions or renewals thereof as may reasonably be requested by the Servicer,
unless in any such case an event (including any change in treaty, law or
regulation) as occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender so advises the Servicer. Each such Lender shall
certify (as of the Closing Date in the case of a Lender party hereto on such
date or as of the effective date of its Assignment Agreement in the case of a
Lender which became a Lender hereunder by Assignment) in the case of a Form
4224, Form W-8ECI, Form 1001 or Form W-8BEN, that it is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes. Notwithstanding any provision in this Agreement to
the contrary, the Servicer and Indenture Trustee shall be entitled to withhold
or cause such withholding without the requirement of any "gross-up" payment to
the Lenders pursuant to Section 2.08(b) in the event of a breach of these
certifications, representations and warranties or those set forth in Section
8.09(d) or Section 8.09(f).
(e) Each Lender agrees that it shall use its best efforts to take any
necessary actions, including designating a different Lending Office for the
Loan, that will avoid the need for, or reduce the amount of, any amounts payable
to it for Taxes referred to in Section 2.08(b); provided that no such Lender
shall be obligated to take any actions that would, in the reasonable opinion of
such Lender, be unlawful or otherwise disadvantageous to such Lender or would
result in any unreimbursed cost or expense to such Lender, which cost and
expense would not have been incurred but for such actions. If any amounts
payable to a Lender for Taxes referred to in Section 2.08(b) shall not be
eliminated or reduced by the designation of a different Lending Office or other
actions taken by the affected Lender and payment thereof hereunder shall not be
waived by such Lender within 15 days after the Trust Depositor shall have given
written notice to such Lender and the Agent of its intent to replace such
Lender, the Trust Depositor shall have the
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right to (A) request in writing that the Agent assist the Trust Depositor,
and the Agent hereby agrees upon receipt of such request to assist the Trust
Depositor, to obtain a replacement lender for such Lender that is acceptable to
the Trust Depositor or (B) itself seek to replace the Lender hereunder with a
new lender which is reasonably acceptable to the Agent; provided that (i) such
Lender shall not be replaced hereunder with a new lender until such Lender has
been repaid in full all amounts owed to it pursuant to this Agreement and (ii)
if the Lender to be replaced is the Agent, a replacement Agent shall have been
appointed by the remaining Lenders and the Agent to be replaced shall have been
paid all amounts owing to it as Agent pursuant to this Agreement; provided
further, that the Trust Depositor shall provide the Lender to be replaced with
an officer's certificate stating that such new lender has advised the Trust
Depositor that it is not then subject to, or has agreed not to seek, such
amounts for Taxes. Subject to the provisions of this Section 2.08(e), each
affected Lender hereby agrees to assign all of its rights and obligations to
such replacement Lender pursuant to an Assignment Agreement, subject to payment
in full of such affected Lender's Pro Rata Share of the Loan, together with all
accrued interest, fees and other amounts due to it hereunder (including amounts
due it under this Section 2.08).
(f) Failure on the part of any Lender to demand compensation for any amount
pursuant to Section 2.08(b) with respect to any period shall not constitute a
waiver of such Lender's right to demand compensation with respect to such
period; provided, however, that a Lender shall not be required to be compensated
for any such amount relating to any period ending, and of which such Lender has
had knowledge, more than six months prior to the date that such Lender notifies
the Servicer in writing thereof. Each Lender agrees to use its reasonable
efforts to notify the Servicer upon obtaining actual knowledge of any amounts
described in Section 2.08(b) incurred or to be incurred by such Lender for which
such Lender plans on seeking compensation pursuant to Section 2.08(b); provided,
however, that, subject to the proviso set forth in the preceding sentence,
failure to so notify the Servicer shall not constitute a waiver of such Lender's
right to demand such compensation, or reduce the amount of such compensation
that such Lender may demand.
Section 2.09. Nonrecourse and Recourse Obligations; Waiver of Setoff,
Obligations Absolute.
(a) Notwithstanding any provision in any other Section of this Agreement to
the contrary, but subject to Section 2.09(b) below, the obligation to repay the
Repayment Amount shall be without recourse to the Trust Depositor, TCC, in its
individual capacity and as the Servicer, any Person acting on behalf of either
the Trust Depositor or the Servicer, the Trust, the Owner Trustee, the Indenture
Trustee, any Noteholder, any Equity Certificateholder or any affiliate, officer
or director of any of them, and the obligation to pay the Repayment Amount shall
be limited solely to the application of Investment Earnings, Available Funds,
Cash Collateral Account Surplus, and other amounts payable in respect thereof
required to be distributed to the Lenders, as described in Section 2.02 hereof,
and in the Indenture, and all other amounts on deposit or to be deposited from
time to time in the Cash Collateral Account to the extent that such amounts are
available for distribution to the Lenders.
(b) (i) The representations and warranties of the Trust Depositor and TCC,
in its individual capacity and as Servicer, made herein or in the Pooling
Agreement, the breach of
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which has a material adverse effect on any Lender, (ii) the noncompliance
by the Trust Depositor or TCC, in its individual capacity and as Servicer, with
the terms and provisions of this Agreement, the Pooling Agreement or the
Indenture, which noncompliance has a material adverse effect on any Lender, and
(iii) the amounts of any withdrawals from the Cash Collateral Account, to the
extent such amounts represent amounts which the Trust Depositor or the Servicer
were required to but failed to deposit in the Collection Account in accordance
with the Pooling Agreement or the Indenture, shall be with recourse to TCC, in
its individual capacity and as Servicer or the Trust Depositor, as the case may
be, but not to any successor to such Servicer; provided, however, that the sole
remedy against the Trust Depositor or TCC for a breach of the representations
and warranties in the Schedule of Representations, in the Purchase and Sale
Agreements or in Section 3.09 hereof (to the extent relating to such Schedule of
Representations) shall be limited to the right to have NFUSA purchase the
applicable Contracts pursuant to, and make the deposits to the Collection
Account, if any, required by, Section 7.06 of the Pooling Agreement. Neither the
Trust Depositor nor the Servicer shall be liable for the representations or
warranties made by, or the acts or omissions of, any successor to the Trust
Depositor or a successor Servicer, except as provided herein and except that a
Trust Depositor that is also the Servicer or a successor Servicer may be liable
in its other capacity.
(c) Each Lender agrees that it shall have no right of setoff or banker's
lien against the Trust Depositor, the Servicer, the Indenture Trustee, the Owner
Trustee, the Trust, TCC (in its individual capacity), NFUSA, any Noteholder, any
Equity Certificateholder or any affiliate, officer or director of any of them or
the Cash Collateral Account or any Eligible Investments, in any such case with
respect to the payment of the Repayment Amount or with respect to any amount
owing to any Lender, whether arising hereunder or otherwise, and that any rights
of setoff that such Lender may have shall not affect its obligations hereunder
except as provided in Section 2.06(c) hereof.
(d) Subject to and without limiting the foregoing provisions of this
Section 2.09, the obligations of the Trust, the Indenture Trustee, the Trust
Depositor, the Servicer and the Lenders under this Agreement shall be absolute,
unconditional and irrevocable and shall be performed strictly in accordance with
the terms of this Agreement, irrespective of any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement, any
Purchase and Sale Agreement, the VFC Assignment, the Pooling Agreement, the
Equity Certificate, the Notes, the Indenture or any other Transaction
Documents;
(ii) any amendment to or waiver of, or consent to departure from, this
Agreement, any Purchase and Sale Agreement, the VFC Assignment, the Pooling
Agreement, the Equity Certificate, the Notes, the Indenture or any other
Transaction Documents unless agreed to by the Lenders pursuant to Section
8.01;
(iii) the existence of any claim, setoff, defense or other right which
the Trust Depositor, the Servicer, the Indenture Trustee, the Owner Trustee
or the Trust may have at any time against each other, any beneficiary or
any transferee of the Cash Collateral Account (or any Person for whom the
Trust Depositor, the Servicer, the
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Indenture Trustee, the Owner Trustee, any such beneficiary or any such
transferee may be acting), the Agent or any Lender (except in the case of
the Agent or a Lender, any claim, setoff, defense or other right arising
from the negligence, bad faith or willful misconduct of the Agent or such
Lender), or any other Person, whether in connection with this Agreement,
the Indenture, any Purchase and Sale Agreement, the Pooling Agreement, the
Equity Certificate, the Notes, any other Transaction Documents any Eligible
Investment or any unrelated transactions;
(iv) the bankruptcy, insolvency, receivership or conservatorship of
the Trust Depositor, the Servicer, the Indenture Trustee, the Owner
Trustee, the Trust, TCC, any Originator, any Noteholder, any Equity
Certificateholder, the Agent or any Lender;
(v) any defense based on the failure of the Trust Depositor or the
Trust to receive all or any part of the proceeds of the sale of the Notes
or Equity Certificate; or the nonapplication or misapplication of amounts
at any time on deposit in the Cash Collateral Account (other than, in the
case of a Lender, a nonapplication or misapplication by such Lender);
(vi) any statement or any other document presented in connection with
the Cash Collateral Account proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; provided, that in the case of the Agent or
a Lender, the same shall not have constituted negligence, bad faith or
willful misconduct on the part of the Agent or such Lender.
Section 2.10. Indemnification.
(a) Subject to the provisions of Section 2.09 relating to the non-recourse
nature of the obligation to pay the Repayment Amount, the Trust agrees to
indemnify and hold harmless, to the extent funds are available therefor under
subsections 2.02(c)(vii), 2.02(c)(viii), 2.02(d)(v), 2.02(d)(vi), 2.02(e)(v) and
2.02(e)(vi), the Agent and each Lender and any director, officer, employee, or
agent of such Lender (each such Person being an "Indemnitee") from and against
any and all claims, damages, losses, liabilities, costs or expenses (including
reasonable fees and expenses of counsel) whatsoever (other than claims for
payment of the Repayment Amount and costs, losses or payments covered by Section
2.07 or 2.08) that any Indemnitee may incur (or that may be claimed against any
Indemnitee) by reason of or in connection with (x) the execution and delivery or
assignment of, or payment under, this Agreement or the Loans or (y) the
transactions contemplated hereby (including the withdrawal from and deposit to
the Cash Collateral Account of required amounts), except (i) to the extent that
any such claims, damages, losses, liabilities, costs or expenses shall be caused
by the willful misconduct, bad faith or gross negligence of the Indemnitee or
any related Indemnitee in performing its obligations under this Agreement or the
Loans, (ii) to the extent that any such claims, damages, losses, liabilities,
costs or expenses relate to Income Taxes or Taxes, (iii) to the extent any such
claims, damages, losses,
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liabilities, costs or expenses relate to information provided to an
assignee of a Lender by a Person other than the Trust Depositor, the Servicer,
the Indenture Trustee or the Owner Trustee (unless such information was provided
to such Person in writing by the Trust Depositor, the Servicer, the Indenture
Trustee or the Owner Trustee for, or permitted in writing by such party to be
used for, such purpose), (iv) to the extent such costs or expenses are, in the
good faith judgment of the Indemnitee, ordinary expenses of routine
administration incurred by an Indemnitee hereunder or costs of an Indemnitee in
effecting any Assignment hereof or participation herein, in each case to the
extent such costs, or expenses are not specifically payable by the Trust
Depositor or the Servicer hereunder or (v) as provided in Section 8.04. Promptly
after receipt by the Agent or a Lender of notice of the commencement of any
action, the Agent or such Lender will, if a claim in respect thereof is to be
made against the Trust, under this Section 2.10(a), notify the Trust Depositor,
the Owner Trustee, the Indenture Trustee and the Servicer in writing of the
commencement thereof; but the omission so to notify the Trust Depositor, the
Owner Trustee, the Indenture Trustee and the Servicer will not relieve such
party from any liability which it may have to the Agent or such Lender under
this Section 2.10(a); provided, however, that a Lender shall not be required to
be compensated for any such amount relating to any period ending, and of which
such Lender has had knowledge, more than six months prior to the date that such
Lender notifies the Servicer in writing thereof. Each Lender agrees to use its
reasonable efforts to notify the Servicer upon obtaining actual knowledge of any
amounts described in this Section 2.10(a) incurred or to be incurred by such
Lender for which such Lender plans on seeking compensation pursuant to this
Section 2.10(a); provided, however, that, subject to the proviso set forth in
the preceding sentence, failure to so notify the Servicer shall not constitute a
waiver of such Lender's right to demand such compensation, or reduce the amount
of such compensation that such Lender may demand.
(b) Subject to the provisions of Section 2.09 relating to the non-recourse
nature of the obligation to pay the Repayment Amount, TCC, in its individual
capacity and as Servicer, agrees to indemnify and hold harmless each Indemnitee
from and against any and all claims, damages, losses, liabilities, costs or
expenses (including reasonable fees and expenses of counsel) whatsoever (other
than claims for payment of the Repayment Amount and costs, losses or payments
covered by Section 2.07 or 2.08) that any Indemnitee may incur (or that may be
claimed against any Indemnitee) on the same terms and conditions that TCC has
agreed to indemnify other parties pursuant to Section 11.12 of the Pooling
Agreement.
(c) Each Lender agrees that it shall use its best efforts to take any
necessary actions, including designating a different Lending Office for the
Loan, that will avoid the need for, or reduce the amount of, any indemnity
payments referred to in Section 2.10(a); provided that no such Lender shall be
obligated to take any actions that would, in the reasonable opinion of such
Lender, be unlawful or otherwise disadvantageous to such Lender or would result
in any unreimbursed cost or expense to such Lender, which cost and expense would
not have been incurred but for such actions. If any indemnity amounts payable to
a Lender referred to in Section 2.10(a) shall not be eliminated or reduced by
the designation of a different Lending Office or other actions taken by the
affected Lender and payment thereof hereunder shall not be waived by such Lender
within 15 days after the Trust Depositor shall have given written notice to such
Lender and the Agent of its intent to replace such Lender, the Trust Depositor
shall have the right to (A) request in writing that the Agent assist the Trust
Depositor, and the Agent hereby
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agrees upon receipt of such request to assist the Trust Depositor, to
obtain a replacement lender for such Lender that is acceptable to the Trust
Depositor or (B) itself seek to replace the Lender hereunder with a new lender
which is reasonably acceptable to the Agent; provided that (i) such Lender shall
not be replaced hereunder with a new lender until such Lender has been repaid in
full all amounts owed to it pursuant to this Agreement and (ii) if the Lender to
be replaced is the Agent, a replacement Agent shall have been appointed by the
remaining Lenders and the Agent to be replaced shall have been paid all amounts
owing to it as Agent pursuant to this Agreement; provided further, that the
Trust Depositor shall provide the Lender to be replaced with an officer's
certificate stating that such new lender has advised the Trust Depositor that it
is not then subject to, or has agreed not to seek, such indemnity amounts.
Subject to the provisions of this Section 2.10(c), each affected Lender hereby
agrees to assign all of its rights and obligations to such replacement Lender
pursuant to an Assignment Agreement, subject to payment in full of such affected
Lender's Pro Rata Share of the Loan, together with all accrued interest, fees
and other amounts due to it hereunder (including amounts due it under this
Section 2.10).
(d) Any Lender claiming amounts under Section 2.10(a) will furnish to the
Indenture Trustee, the Owner Trustee, the Trust Depositor and the Servicer an
officer's certificate prepared in good faith setting forth in reasonable detail
the basis and amount of each request by such Lender or the Agent, as the case
may be, for such amounts. Determinations by a Lender, or the Agent, as the case
may be, of any indemnity amounts referred to in Section 2.10(a) shall be (i)
made without regard to any participations in the Loan sold by such Lender and as
if such Lender held for its own account the amount of the Loan so participated
and (ii) prima facie evidence of any amounts claimed under Section 2.10(a).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF DEPOSITOR AND SERVICER
In order to induce the Agent and the Lenders to enter into this Agreement
and to induce the Lenders to make their respective Loans hereunder, each of the
Trust Depositor and the Servicer, and with respect to Sections 3.06, 3.09 and
3.11 and subsection 3.06(b), TCC in its individual capacity, represents and
warrants to the Lenders as follows:
Section 3.01. Corporate Existence. The Trust Depositor is a limited
liability company and the Servicer is a corporation, each of which is validly
existing and in good standing under the laws of the State of Delaware, with full
corporate power and authority under such laws to own its properties and conduct
its business as such properties are presently owned and such business is
presently conducted and to execute, deliver and perform its obligations under
this Agreement, the Pooling Agreement, the Purchase and Sale Agreements, the
Underwriting Agreement, the Indenture and the other Transaction Documents to
which it is a party.
Section 3.02. Corporate Authority. It has the corporate power, authority
and right to make, execute, deliver and perform this Agreement, the Pooling
Agreement, the Purchase and Sale Agreements, the Underwriting Agreement, the
Indenture, the other Transaction Documents to which it is a party and all the
transactions contemplated hereby and thereby and has taken all
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necessary corporate action to authorize the execution, delivery and
performance of this Agreement, the Pooling Agreement, the Purchase and Sale
Agreements, the Underwriting Agreement, the Indenture and the other Transaction
Documents to which it is a party. Each of this Agreement, the Pooling Agreement,
the Purchase and Sale Agreements, the Underwriting Agreement, the Indenture and
the other Transaction Documents to which it is a party constitutes its legal,
valid and binding obligation, enforceable in accordance with its terms, subject
to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent
transfer, receivership, conservatorship and other laws of general applicability
relating to or affecting creditors' rights in general. The enforceability of its
obligations under such agreements is also subject to general principles of
equity, regardless of whether such enforceability is considered in a proceeding
in equity or at law.
Section 3.03. No Consents Required. No consent, license, approval or
authorization of, or registration with, any Governmental Authority is required
to be obtained in connection with its execution, delivery or performance of each
of this Agreement, the Pooling Agreement, the Purchase and Sale Agreements, the
Underwriting Agreement, the Indenture and any other Transaction Documents to
which it is a party that has not been duly obtained and which is not and will
not be in full force and effect on the Closing Date, except such that may be
required by the blue sky laws of any state or consents, licenses, approvals or
authorizations of, or registrations with, any Governmental Authority that,
individually or in the aggregate, would not have a material adverse effect on
the Trust Depositor's or the Servicer's, as applicable, ability to perform its
obligations under, or the validity or enforceability of, this Agreement, the
Pooling Agreement, the Purchase and Sale Agreements, the Underwriting Agreement,
the Indenture or any other Transaction Documents to which it is a party.
Section 3.04. No Violation. The execution, delivery and performance of each
of this Agreement, the Pooling Agreement, the Purchase and Sale Agreements, the
Underwriting Agreement, the Indenture and any other Transaction Documents to
which it is a party do not violate any provision of any existing law or
regulation applicable to it, any order or decree of any court or other judicial
authority to which it is subject, its articles of association or by-laws or any
mortgage, indenture, contract or other to which it is a party or by which it or
any significant portion of its properties is bound (other than violations of
such laws, regulations, orders, decrees, mortgages, indentures, contracts and
other agreements that, individually or in the aggregate, would not have a
material adverse effect on the Trust Depositor's or the Servicer's, as
applicable, ability to perform its obligations under, or the validity or
enforceability of, this Agreement, the Pooling Agreement, the Purchase and Sale
Agreements, the Underwriting Agreement, the Indenture or any other Transaction
Documents to which it is a party).
Section 3.05. No Proceeding. There is no litigation or administrative
proceeding before any court, tribunal or governmental body presently pending or,
to the knowledge of the Trust Depositor or the Servicer, threatened against the
Trust Depositor or the Servicer, as the case may be, with respect to this
Agreement, the Pooling Agreement, the Purchase and Sale Agreements, the
Underwriting Agreement, the Indenture, any other Transaction Documents to which
it is a party, the transactions contemplated hereby or thereby or the issuance
of the Notes or Equity Certificate that would have a material adverse effect on
the transactions contemplated by, or its ability to perform its obligations
under, this Agreement, the Pooling Agreement, the
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Purchase and Sale Agreements, the Underwriting Agreement, the Indenture or
any the other Transaction Documents to which it is a party.
Section 3.06. Registration and Prospectus; Other Information. (a) Neither
the Registration Statement at the time it was declared effective, the Prospectus
as of its date, nor any post-effective amendment or supplement to the
Registration Statement or the Prospectus at the time it is filed with the
Commission and at the Closing Date: (i) contained or will contain any untrue
statement of a material fact or omitted or will omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, it being understood that the
Registration Statement and Prospectus were prepared only in connection with the
offering of the Notes; or (ii) disclosed or will disclose the identity of the
Agent or any Lender except at the request of any regulatory body, or by the
order of any court or administrative agency.
(b) (i) All financial and other written information provided by or on
behalf of TCC is true and correct, as of their respective dates, in all material
respects when read in conjunction with the Prospectus; and (ii) all financial
and other written information provided by or on behalf of TCC to the initial
Lender for use in connection with such Lender's syndication of the Loans, is
true and correct in all material respects. For purposes of this Agreement,
"written information" will include information provided electronically on a
computer disk, via electronic mail, or by any similar means.
Section 3.07. Trust Indenture Act; Investment Company Act. The Pooling
Agreement is not required to be qualified under the Trust Indenture Act of 1939
(as amended), the Trust is not required to be registered under the Investment
Company Act of 1940 (as amended) and the Indenture has been properly qualified
under the Trust Indenture Act of 1939, as amended.
Section 3.08. No Event of Default or Servicer Termination Event. No Event
of Default with respect to the Notes or Servicer Termination Event has occurred
and is continuing, and no event, act or omission has occurred and is continuing
which, with the lapse of time, the giving of notice, or both, would constitute
such a Event of Default or Servicer Termination Event.
Section 3.09. Representations and Warranties in Transaction Documents and
Regarding Repurchase Event. Its representations and warranties (i) in Section
3.01 of the Pooling Agreement and Section 2 of the Underwriting Agreement, (in
the case of the Trust Depositor), or (ii) in Section 3.02 of the Pooling
Agreement and Section 2 of the Underwriting Agreement, (in the case of TCC, in
its individual capacity or as Servicer, as the case may be) are true and correct
in all material respects as of the dates they were made (unless they
specifically refer to an earlier date in which case such representations and
warranties were true and correct in all material respects as of such earlier
date); and as of the date hereof and as of the Closing Date, no event exists
with respect to Contracts which obligated NFUSA to repurchase such Contracts
pursuant to Section 7.06 of the Pooling Agreement; provided, however, that the
sole remedy for a breach of the representations and warranties made in this
Section 3.09 shall be limited to the
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right to have NFUSA purchase the applicable Contracts and make the deposits
to the Collection Account to the extent required in the Pooling Agreement.
Section 3.10. Withdrawal From the Cash Collateral Account. The only events
which may give rise to a withdrawal from the Cash Collateral Account are the
circumstances described in the Pooling Agreement and in this Agreement.
Section 3.11. Adverse Selection. No selection procedures adverse to the
Noteholders have been or will be used in selecting the Contracts from among the
lease and loan contracts owned and available for transfer by (i) NFUSA, at the
time of sale to the Trust Depositor to the Trust, or (ii) the Trust Depositor on
April 1, 2000 and on the Closing Date.
ARTICLE IV
CONDITIONS PRECEDENT
Sections 4.01 through 4.09 constitute conditions precedent to the
obligation of the Lenders to make their respective Loans on the Closing Date,
and Section 4.10 constitutes a condition precedent to the obligation of the
Trust Depositor, the Servicer, the Trust and the Indenture Trustee to enter into
this Agreement on the Closing Date.
Section 4.01. Representations and Warranties. On the Closing Date and after
giving effect to the making of the Loans and the issuance of the Notes and the
Equity Certificate, all representations and warranties of the Trust Depositor
and TCC, in its individual capacity and as Servicer, contained herein or in the
Pooling Agreement, the Indenture, the Purchase and Sale Agreements, the
Underwriting Agreement, any other Transaction Documents or otherwise made in
writing pursuant to any of the provisions hereof or thereof shall be true and
correct in all material respects with the same force and effect as though such
representations and warranties had been made on and as of such date (unless such
representations and warranties specifically relate to an earlier date in which
case such representations and warranties shall have been true and correct in all
material respects on such earlier date); provided, however, that the sole remedy
for a breach of all such representations and warranties shall be limited to the
right to have NFUSA purchase the applicable Contracts and make the deposits to
the Collection Account to the extent required in the Pooling Agreement.
Section 4.02. Transaction Agreements. The Agent shall have received copies
of each of the Pooling Agreement, the Indenture, the Underwriting Agreement and
any other Transaction Documents, duty executed by the parties thereto.
Section 4.03. Additional Documents. The Trust Depositor and the Servicer,
as the case may be, shall have furnished or caused to be furnished to the Agent,
on the Closing Date, executed copies of the opinions required by Section 6 of
the Underwriting Agreement and such additional opinions as may have been
required by any Rating Agency (in each case, addressed to the Agent on behalf of
the Lenders or accompanied by a letter providing that the Agent on behalf of the
Lenders may rely on such opinion as if it were directed to the Lenders,
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and in form and substance satisfactory to the Agent and its counsel) and
such additional documents, instruments, certificates or letters as the Agent may
reasonably request.
Section 4.04. Accountant's Letter. The Agent shall have received copies of
the executed letters of KPMG LLP delivered pursuant to Section 6 of the
Underwriting Agreement.
Section 4.05. Note Issuance and Holdback Amount. Simultaneously with the
deposit of the proceeds of the Loans into the Cash Collateral Account (x) the
Notes shall have been duly executed and authenticated and delivered in
accordance with Section 2.02 of the Indenture and purchased by the underwriters
pursuant to the Underwriting Agreement, and (y) the Holdback Amount shall be
deposited into the Cash Collateral Account pursuant to the Underwriting
Agreement.
Section 4.06. Secretary's Certificate. On the Closing Date, the Agent shall
have received from the Trust Depositor, the Servicer and each Originator a
certificate of the Secretary or an Assistant Secretary of the Trust Depositor
and the Servicer attaching copies of the articles of incorporation or
association, as applicable, and by-laws of the Trust Depositor and the Servicer
(as in effect on the Closing Date) and the resolutions of the Board of Directors
or the Executive Committee of the Board of Directors of the Trust Depositor and
the Servicer, certified as of the Closing Date, authorizing the execution,
delivery and performance of the Pooling Agreement, the Indenture and this
Agreement and as to the incumbency of certain officers of the Trust Depositor
and the Servicer authorized to execute this Agreement and the documents required
hereby.
Section 4.07. Cash Collateral Account. On the Closing Date, the Agent and
the Owner Trustee shall have received satisfactory evidence of the establishment
of the Cash Collateral Account.
Section 4.08. Ratings. On the Closing Date, the Agent shall have received
evidence reasonably satisfactory to the Agent that (i) the Class A Notes have
been rated in the highest rating category by S&P and Xxxxx'x, (ii) the Class B
Notes have been rated no lower than " AA" by S&P and "Aa3" by Xxxxx'x, (iii) the
Class C Notes have been rated no lower than " A" by S&P and "A2" by Xxxxx'x,
(iv) the Class D Notes have been rated no lower than " BBB" by S&P and "Baa3" by
Xxxxx'x, and (v) the Loans have been rated no lower than "BB" by S&P.
Section 4.09. Agent Fees. On or prior to the Closing Date, the Trust
Depositor shall have paid the Agent the upfront fees separately agreed to by
them.
Section 4.10. Legal Opinions. On the Closing Date, the Trust Depositor, the
Servicer, the Trust and the Indenture Trustee shall have received (with copies
to S&P) favorable written opinions of New York and foreign counsel, as
applicable, to each Lender, in each case in form and substance reasonably
satisfactory to the Trust Depositor, the Indenture Trustee, the Trust and the
Servicer to the effect that this Agreement constitutes the valid and binding
obligation of each Lender, enforceable in accordance with its terms (subject to
applicable bankruptcy, reorganization, insolvency and similar laws, and to
moratorium laws and other laws
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affecting creditors' rights generally from time to time in effect and to
general principles of equity).
ARTICLE V
COVENANTS
Each of the Trust Depositor and the Servicer (and, in the case of Sections
5.01, 5.02 and 5.07, each of the Trust Depositor, the Servicer, and the
Indenture Trustee) covenants and agrees that, so long as any amount of the Loans
shall be outstanding or any monetary obligation arising hereunder is owing and
shall remain unpaid, unless the Required Lenders shall otherwise consent in
writing, the Trust Depositor or the Servicer (or, in the case of Sections 5.01,
5.02 and 5.07, the Indenture Trustee), as applicable, will:
Section 5.01. Performance of Agreements. For the benefit of the Lenders,
perform on a timely basis each of their respective agreements, warranties and
indemnities under, and comply in all material respects with each of the
respective terms and provisions applicable to it in, the Pooling Agreement, the
Purchase and Sale Agreements, the Underwriting Agreements, the Indenture and the
other Transaction Documents.
Section 5.02. Amendments to the Pooling Agreement, Purchase and Sale
Agreements and the Indenture. Not terminate (except in accordance with the terms
thereof or otherwise only if at the time of such termination, no Repayment
Amount or other amount payable to the Agent or the Lenders hereunder or under
the Indenture is unpaid), amend, waive or otherwise modify the Pooling
Agreement, the Purchase and Sale Agreements, the Indenture and the other
Transaction Documents without the prior written consent of the Required Lenders
unless (a) such amendment, waiver or modification shall not, as evidenced by an
Officer Certificate delivered to the Agent, adversely affect in any material
respect the interests of the Lenders under this Agreement and (b) prior to the
effectiveness of any such amendment, waiver or modification (x) the Rating
Agencies shall confirm in writing that the rating of the Notes will not be
lowered or withdrawn as a result of such amendment, waiver or modification and
(y) S&P shall confirm in writing that the rating of the Loans will not be
lowered or withdrawn as a result of such amendment, waiver or modification.
Section 5.03. Certificates. Furnish to the Agent a copy of each
certificate, report, statement, notice or other communication (in addition to
those referred to in Section 5.09) furnished by or on behalf of the Trust
Depositor or the Servicer to the Noteholders, the Owner Trustee, the Indenture
Trustee or any Rating Agency concurrently therewith and furnish to the Agent
promptly after receipt thereof a copy of each notice, demand or other
communication received by or on behalf of the Trust Depositor or the Servicer
with respect to the Notes, this Agreement, the Pooling Agreement, the Purchase
and Sale Agreements, the Indenture and the other Transaction Documents.
Section 5.04. Monthly Status Reports. Furnish to the Agent, on a monthly
basis on each Payment Date, a monthly report in the form of Exhibit B hereto
(which report shall have attached thereto a copy of the Servicer's Certificate
delivered pursuant to the Pooling Agreement
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for the related Collection Period) and such other information with respect
to the Trust's property as the Agent may reasonably request (including a copy of
the monthly statements with respect to the Cash Collateral Account furnished by
the holder thereof (if other than the Trust Depositor, the Servicer or an
Affiliate thereof) and information relating to the source and amount of any
prepayment of the Loans pursuant to Section 2.02(c) or (d)).
Section 5.05. Default. Furnish to the Agent, promptly after the occurrence
of any Servicer Termination Event or Event of Default, a certificate of an
appropriate officer of the Servicer setting forth the circumstances of such
Servicer Termination Event or Event of Default, and any action taken or proposed
to be taken with respect thereto.
Section 5.06. Timely Payments. Timely make all payments, deposits or
transfers, and give all instructions to transfer, required to be made by it
under the Indenture and the Pooling Agreement.
Section 5.07. Successor Indenture Trustee. Not appoint (or cause to be
appointed) a successor Indenture Trustee without the prior written consent of
the Agent (which consent shall not be unreasonably withheld) except as permitted
hereunder and by the Indenture.
Section 5.08. Inspection. Afford the Agent and each Lender reasonable
access once in any twelve-month period upon 10 days' notice, during normal
business hours and at the expense of the Agent or such Lender, as the case may
be, to all records maintained by the Trust Depositor or the Servicer relating to
the Contracts (other than names of obligors, and strategic plans for the Trust
Depositor's and Servicer's business) for purposes of inspection, to which
inspection the Trust Depositor and Servicer by their execution of this Agreement
hereby consent; provided that if a Event of Default has occurred and is
continuing, the Trust Depositor or the Servicer, as applicable, shall provide,
upon five days' notice, the Agent and each Lender reasonable access to such
records during normal business hours as the Agent shall specify in writing to
the Trust Depositor or the Servicer, as applicable.
Section 5.09. Periodic Reports of the Accountants. Furnish to the Agent,
upon request, (a) a copy of each annual servicing report of independent public
accountants received by the Indenture Trustee from the Servicer pursuant to
Section 9.04 of the Pooling Agreement, (b) a copy of any other data furnished to
the Indenture Trustee pursuant to Section 9.03 of the Pooling Agreement.
Section 5.10. Other Actions. Execute and deliver to the Agent all such
documents and instruments and do all such other acts and things as may be
necessary or reasonably required by the Agent, the Lenders, the Trust or the
Indenture Trustee to enable the Indenture Trustee, the Trust, the Agent or the
Lenders to exercise and enforce their respective rights under this Agreement,
the Pooling Agreement, the Purchase and Sale Agreements, the Indenture, and
other Transaction Documents and to realize thereon, and the Trust Depositor at
the expense of the Agent shall record and file and re-record and refile all such
documents and instruments, at such time or times, in such manner and at such
place or places, as may be necessary or reasonably required by the Indenture
Trustee, the Trust or the Agent to validate, preserve, perfect and protect the
position of the Indenture Trustee, the Trust or the Lenders under
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this Agreement, the Pooling Agreements, the Purchase and Sale Agreements,
the Indenture, and other Transaction Documents and the Trust Depositor and the
Servicer shall maintain each of such agreements as part of its official records.
Section 5.11. Trust Depositor Financial Information; Other Information.
Furnish to the Lenders (a) promptly when publicly available, such publicly
available financial information as to the Trust Depositor and the Servicer as
such Lenders may reasonably request and (b) such information with respect to the
Contracts as such Lenders may reasonably request (other than names of obligors
and strategic plans for the Trust Depositor's lending business or other such
confidential information).
Section 5.12. Lenders' Identities. Maintain as confidential and not
disclose to any Person (other than any officer, employee or representative of a
party hereto, any underwriter under the Underwriting Agreement or a Rating
Agency, or in connection with any filing under the applicable UCC which lists
the Agent or any Lender (or the Owner Trustee or the Indenture Trustee on their
behalf) as secured parties) the identity of the Agent or any Lender as
enhancement provider under this Agreement, except as the Agent or such Lender
may have consented to in writing prior to any proposed disclosure or except as
the Trust Depositor and/or the Servicer may have been advised by counsel is (i)
required by law or (ii) reasonably necessary or desirable in connection with any
lawsuit or governmental investigation or proceeding.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
AND AGREEMENTS OF THE LENDERS
Section 6.01. Representations and Warranties of the Lenders. Each Lender
represents and warrants to the Indenture Trustee, the Owner Trustee, the Trust
Depositor and the Servicer, that:
(a) such Lender is duly authorized to enter into and perform this Agreement
and has duly executed and delivered this Agreement;
(b) this Agreement constitutes the legal, valid and binding obligation of
such Lender, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, conservatorship, receivership and other
laws now or hereafter in effect relating to, or affecting generally, the
enforcement of creditors' rights and remedies as the same may be applied in the
event of the bankruptcy, insolvency, reorganization, conservatorship,
receivership or liquidation or a similar event of such Lender or a moratorium
applicable to the Lender and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in equity);
(c) no consent or approval of or other action by any Governmental Authority
having jurisdiction over the Lender is required in connection with the
execution, delivery or performance by such Lender of this Agreement;
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(d) either (i) it is properly classified as, and will remain classified as,
a "corporation" as described in Code Section 7701(a)(3) and is not, and will not
become, an "S corporation" under Code Section 1361, or (ii) neither (x)
substantially all of the value of any beneficial owner's interest in the Lender
is attributable to the Lender's Loan nor (y) its acquisition of the Loan is for
the purpose of permitting the Trust to avoid the 100-partner limitation of
Treasury Regulation Section 1.7704-1(h)(3)(ii) in the event the Trust is
characterized as a partnership for federal income tax purposes; and
(e) the execution, delivery and performance of each of this Agreement and
any other Transaction Documents to which it is a party do not violate any
provision of any existing law or regulation applicable to it, any order or
decree of any court or other judicial authority to which it is subject, its
articles of association or by-laws or any mortgage, indenture, contract or other
to which it is a party or by which it or any significant portion of its
properties is bound (other than violations of such laws, regulations, orders,
decrees, mortgages, indentures, contracts and other agreements that,
individually or in the aggregate, would not have a material adverse effect on
such Lender, ability to perform its obligations under, or the validity or
enforceability of, this Agreement or any other Transaction Documents to which it
is a party).
ARTICLE VII
[RESERVED]
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Amendments and Waivers. This Agreement shall not be amended,
waived or modified without the written consent of the Trust Depositor, the
Servicer, the Trust, the Indenture Trustee and the Required Lenders. The
Servicer shall provide to each of the Rating Agencies a copy of any amendment
prior to the effectiveness thereof.
Section 8.02. Cash Collateral Account Withdrawal Statement. If the
Termination Date shall have occurred and the Lenders have not been repaid in
full, the Trust Depositor or the Servicer shall provide the Agent with a
description of the events giving rise to each withdrawal from the Cash
Collateral Account (in the case of the Servicer, only while acting in such
capacity) in such detail as the Agent may reasonably request and with such
additional background information and data with respect thereto as the Agent may
reasonably request and the Trust Depositor or the Servicer can reasonably
supply.
Section 8.03. Servicing Transfer.
(a) If a Servicing Transfer occurs under the Pooling Agreement, from and
after the effective date of such Servicing Transfer, the successor Servicer
appointed pursuant to the Pooling Agreement, and not the replaced Servicer,
shall be responsible for the performance of all servicing functions to be
performed from and after such date. Such Servicing Transfer shall not affect any
rights or obligations of the replaced Servicer under this Agreement that arose
prior to the effective date of the Servicing Transfer or the rights or
obligations of the replaced Servicer
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under this Agreement, including under Sections 2.02(c), (d) and (e),
Section 2.06, Section 2.09 and Article V (in the case of Sections 5.03, 5.04 or
5.09 under Article V, excluding any documents received by any successor Servicer
other than the Trust Depositor and also excluding any documents received by the
Trust Depositor from the successor Servicer), this Section 8.03 or Section 8.04
whether arising before or after such date, except to the extent that an
obligation to indemnify the Agent or the Lenders under Section 2.10(c) arises as
a result of any act or failure to act of any successor Servicer in the
performance of the servicing functions. At the time of any transfer of the
servicing functions to a successor Servicer, such successor Servicer shall
furnish to the Agent copies of its annual financial statements (which financial
statements shall be audited, if available) or, if such successor Servicer is a
national banking association, copies of its call reports for each of the last
three fiscal years.
(b) Subject to Sections 2.09 and 8.03(a), any successor Servicer, by
accepting its appointment pursuant to the Pooling Agreement, (i) shall agree to
be bound by the terms, covenants and conditions contained herein applicable to
the Servicer and to be subject to the duties and obligations of the Servicer
hereunder, (ii) as of the date of its acceptance, shall be deemed to have made
with respect to itself the representations and warranties made by the Servicer
in Sections 3.01 through 3.05 hereof (in the case of Section 3.01 with
appropriate factual changes) and (iii) shall agree on a recourse basis to
indemnify and hold harmless any Indemnitee from and against any and all claims,
damages, losses, liabilities, costs or expenses (including the fees and expenses
of counsel) whatsoever that such Indemnitee may incur (or which may be claimed
against such Indemnitee) by reason of the negligence or willful misconduct of
such successor Servicer in exercising its powers and carrying out its
obligations under the Pooling Agreement, the Indenture or this Agreement.
Section 8.04. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CONFLICT OF LAW PROVISIONS.
Section 8.05. No Waiver. Except as specifically provided herein, neither
any failure nor any delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise or the
exercise of any other right, power or privilege.
Section 8.06. Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
Section 8.07. Termination. This Agreement shall remain in full force and
effect until the later of (a) the payment of the Repayment Amount and (b) the
Termination Date. The provisions of Sections 2.02(f), 2.07, 2.08, 2.09, 2.10,
8.04, 8.10, 8.17 and 8.19 shall survive the termination of this Agreement.
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Section 8.08. Successors and Assigns; Assignments.
(a) This Agreement shall be binding upon, and inure to the benefit of, the
Lenders, the Trust, the Indenture Trustee, the Trust Depositor, the Servicer and
their respective successors and permitted assigns (other than Participants);
provided that neither the Servicer nor the Trust Depositor may assign any of its
rights or obligations hereunder (by operation of law or otherwise) without the
prior written consent of the Lenders except as otherwise provided herein or in
the Pooling Agreement and upon confirmation by S&P that such assignment will not
result in a withdrawal or reduction of the rating of the Loan; and provided
further, that no assignment permitted hereunder shall relieve the Trust
Depositor or the Servicer, as applicable, from any of their respective
obligations arising hereunder prior to such assignment (including obligations
with respect to breaches of representations and warranties made herein).
(b) Subject to the other provisions of this Agreement, each Lender may at
any time sell, assign or otherwise transfer (each, an "Assignment") to any
assignee (upon such assignment, a "Lender") all or part of the obligations due
to it in respect of its Loan and its rights and obligations under this
Agreement; provided that (i) if a partial assignment of the assignor Lender's
interest in the Loan, the minimum amount of such assignment of the Loan shall be
$1,000,000, (ii) such assignee Lender shall have entered into an Assignment
Agreement in the form of Exhibit A, pursuant to which such assignee Lender has
agreed in writing to assume the rights and obligations of the assignor Lender
(to the extent of such Assignment), (iii) such assignee Lender shall, upon the
request of the Trust Depositor, provide the Indenture Trustee, the Servicer and
the Trust Depositor (prior to the effective date of its Assignment Agreement)
with an opinion of counsel reasonably satisfactory to the Indenture Trustee and
the Trust Depositor, as to the enforceability of this Agreement and the
Assignment Agreement with respect to such assignee Lender, (iv) such assignee
Lender shall comply with Section 8.08(d) and shall have delivered to the
Indenture Trustee, prior to the effectiveness of such Assignment, an executed
copy of an agreement under which such assignee Lender has made the
representations, warranties and covenants required to be made pursuant to such
Section and Section 2.08(d), (v) such assignee Lender shall have entered into a
Confidentiality Agreement substantially in the form of Exhibit C, and (vi) if
Section 2.08(d) applies to such assignee Lender, such assignee Lender and the
Agent shall provide the forms described in Section 2.08(d) in the manner
described therein. The Servicer shall notify each Rating Agency of each
Assignment of which it has received notice.
(c) Each assignee Lender shall comply with the applicable provisions of
Section 2.08(d).
(d) Each Lender agrees with the Trust Depositor that: (a) such Lender will
deliver to the Trust Depositor on or before the effective date of any
participation or Assignment a letter in the form attached hereto as Exhibit A,
executed by such Lender, in the case of an Assignment, or by the Participant, in
the case of a participation, with respect to the purchase by such Lender or
Participant of a portion of the Pro Rata Share and (b) all of the statements
made by such Lender in such letter shall be true and correct as of the date
made.
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(e) Each Lender may assign and pledge all or a portion of its rights
hereunder (including any rights to repayment of its Pro Rata Share of the Loans
and any interest thereon) to any Federal Reserve Bank as collateral to secure
any obligation of such Lender to such Federal Reserve Bank. In the event of an
assignment or pledge in accordance with the foregoing, such Lender shall not
have assigned, and the Federal Reserve Bank shall not be liable for, any
obligations of such Lender under this Agreement. Such assignment may be made at
any time without notice or other obligation with respect to the assignment.
(f) Any Lender may at any time grant to any person a participation in all
or part (but not less than $1,000,000) of its Commitment and its Pro Rata Share,
and its rights under this Agreement (each such Person, a "Participant");
provided, however, that such participation shall be void, unless such
Participant shall comply with the applicable provisions of Section 8.09(d) and
such Lender shall have delivered to the Indenture Trustee, the Servicer and the
Trust Depositor prior to the effectiveness of its participation, a copy of an
agreement under which such Participant has made the representations, warranties
and covenants required to be made pursuant to such Section substantially in the
form attached hereto as Exhibit A. Each Lender hereby acknowledges and agrees
that any such disposition will not alter or affect in any way whatsoever such
Lender's direct obligations hereunder and that neither the Indenture Trustee,
the Owner Trustee, the Trust Depositor, the Servicer nor the Agent shall have
any obligation to, have any communication or relationship whatsoever with, or
liability whatsoever to, any Participant of such Lender in connection with this
Agreement; provided, however, the Trust shall be obligated to reimburse such
Participant for all amounts under Section 2.07, 2.08 and 2.10 as if such
Participant were a Lender hereunder, but with respect to Participations made by
Lenders other than the initial Lender, only in an amount not in excess of the
amounts that would have been owing thereunder to each such other Lender that
shall have granted such participation had such participation not been granted.
Each Lender shall promptly notify the Agent (which shall promptly notify the
Trust Depositor) in writing of the identity and interest of each Participant
upon any such disposition. In granting any participation, the Lender certifies,
represents and warrants that (i) such Participant is entitled to (x) receive
payments with respect to its participation without deduction or withholding of
any United States federal income taxes and (y) an exemption from United States
backup withholding tax, (ii) if Section 2.08(d) applies to such Participant, as
if it were a Lender, prior to the date on which the first interest payment is
due to the Participant, such Lender will receive and provide to the Agent, and
the Agent will provide to the Servicer and Indenture Trustee, the forms
described in Section 2.08(d) as though the Participant were a Lender, (iii) such
Participant shall have entered into a Confidentiality Agreement substantially in
the form of Exhibit C, and (iv) such Lender and Agent similarly will provide
subsequent forms as described in Section 2.08(d) with respect to such
Participant as though it were a Lender.
(g) Any Lender shall have the option to change the office of such Lender at
which its Commitment or Pro Rata Share of the Loan is maintained, provided that
such Lender shall have prior to such change in office complied with the
provisions of Section 2.08(d) as such provisions relate to withholding taxes and
provided further, that such Lender shall not be entitled to any amounts
otherwise payable under Section 2.07 or 2.08 resulting solely from such change
in office unless such change in office was mandated by applicable law or by such
Lender's compliance with the provisions of Section 2.07(c) or 2.08(e).
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Section 8.09. Notices.
(a) All notices and other communications provided for hereunder shall be in
writing and, if to the Trust Depositor, the Servicer, the Owner Trustee, or the
Indenture Trustee either mailed or delivered to it, or sent by facsimile
transmission, addressed to it or sent as set forth in the Pooling Agreement or
the Indenture, or if to the Agent, mailed or delivered to it, or sent by
facsimile transmission, to it at 000 XXX Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000,
Attention: General Counsel (with a copy to the attention of the Treasurer),
(telecopy no. (000) 000-0000), or, if to any other party, as such party may
direct in a written notice to the other parties. All such notices and other
communications shall be effective if personally delivered, upon delivery to the
aforesaid address, if mailed, five days after the date of mailing, addressed as
aforesaid or, if sent by facsimile transmission, when sent (receipt confirmed).
Any party hereto may change the address to which notices to it are to be sent by
notice given to the other parties hereto.
(b) Written notice of payments to the Agent under this Agreement shall be
given to the Agent by facsimile transmission stating that a transfer of
immediately available funds has been made to the Agent, identifying the
particular Loan, the amount paid and stating the Federal wire transfer
confirmation number of such wire transfer. Unless otherwise directed by the
Agent, all payments to the Agent shall be made to it directly in federal funds
as follows:
Pay To: AT&T Capital Corporation
Account:
---------------
Account No.:
------------
Chase Manhattan Bank
Routing:
----------------
Section 8.10. Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement.
Section 8.11. Exclusive Benefit. The rights and remedies of the Agent and
the Lenders specified herein are for the sole and exclusive benefit, use and
protection of the Agent and the Lenders, and the Agent and the Lenders are
entitled, but shall have no duty or obligation to the Trust Depositor, the
Servicer, the Owner Trustee, the Indenture Trustee, any Noteholder or Equity
Certificateholder or otherwise, (a) to exercise or to refrain from exercising
any right or remedy reserved to the Agent and the Lenders hereunder or (b) to
cause the Indenture Trustee or any other party to exercise or to refrain from
exercising any right or remedy available to it.
Section 8.12. Limitation of Remedies. Subject to the Lenders' right to
partial prepayment pursuant to Section 2.02(c) and (d), the Lenders shall not
have the right to cause the Loan or any portion thereof to become due and
payable prior to the Termination Date.
Section 8.13. Counterparts. This Agreement may be executed in any number of
copies, and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original instrument.
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Section 8.14. Previous Agreements. Any previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement.
Section 8.15. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT. Each party hereto (a) certifies that no
representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce the foregoing waiver and (b) acknowledges that it and the other
parties hereto have been induced to enter into this Agreement by, among other
things, the mutual waivers and certifications in this Section 8.16.
Section 8.16. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
Section 8.17. Jurisdiction, Consent to Service of Process. To the fullest
extent permitted by applicable law, each of the Trust Depositor, the Servicer,
the Lenders, the Trust and the Indenture Trustee (a) hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment and (b) agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that a party may otherwise
have to bring any action or proceeding relating to this Agreement against any
other party or its respective properties in the court of any jurisdiction.
Section 8.18. Bankruptcy. To the extent that the Indenture Trustee, the
Servicer or the Trust Depositor makes a payment to the Agent or the Lenders or
the Agent or the Lenders receive any payment or proceeds with respect to the
Repayment Amount or any other amount payable in connection with this Agreement,
which payment or proceeds or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, receiver or any other party under any bankruptcy law, state or
federal law, common law or equitable cause, then, to the extent such payment or
proceeds are set aside, the Repayment Amount or any other amount payable in
connection with this Agreement or part or parts thereof intended to be satisfied
shall be revived and continue in full force and effect, as if such payment or
proceeds had not been received by the Agent or the Lenders.
Section 8.19. Nonpetition Agreements; Rights in Trust Property.
(a) Notwithstanding any prior termination of this Agreement neither the
Agent nor any Lender shall acquiesce, petition or otherwise invoke or cause the
Trust or the Trust Depositor to invoke the process of any Governmental Authority
for the purpose of commencing or sustaining a case against the Trust or the
Trust Depositor under any federal or state
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bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Trust or the Trust Depositor or any substantial part of their respective
property or ordering the winding up or liquidation of the affairs of the Trust
or the Trust Depositor. Agent and Lenders acknowledge that the Trust Depositor
and the Trust are each legal entities separate from any other entity and that
the Noteholders have relied on such separateness, and the Agent and Lenders
agree, which agreement shall be enforceable by the Noteholders at law or through
an action for specific performance, not to seek or support the substantive
consolidation of the Trust Depositor or the Trust with any other entity as long
as the Notes remain outstanding.
(b) Notwithstanding anything contained in this Agreement to the contrary,
the Lenders and the Agent agree that regardless of any termination of this
Agreement or other provision of this Agreement, neither the Agent nor the
Lenders shall have any rights in or to the amounts on deposit in the Cash
Collateral Account or any other Trust Assets or the Trust Estate except as
expressly provided in the Indenture.
Section 8.20. Agent.
(a) Each Lender hereby irrevocably appoints and authorizes the Agent to act
as its agent hereunder with such powers as are specifically delegated to the
Agent by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. The Agent (which term as used in this Section and
in Section 8.20(d) and the first sentence of Section 8.20(e) shall include
reference to its affiliates and its own and its affiliates' officers, directors,
employees and agents): (i) shall have no duties or responsibilities except those
expressly set forth in this Agreement, and shall not by reason of this Agreement
be a trustee for any Lender; (ii) shall not be responsible to any Lender for any
recitals, statements, representations or warranties contained in this Agreement,
or in any certificate or other document referred to or provided for in, or
received by any of them under, this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
the Pooling Agreement, the Purchase and Sale Agreements, the Indenture or any
other Transaction Documents or any other document referred to or provided for
herein or therein or for any failure by the Trust Depositor, the Servicer, the
Owner Trustee, the Indenture Trustee or any other Person to perform any of its
obligations hereunder or thereunder; (iii) shall not be required to initiate or
conduct any litigation or collection proceedings hereunder or under the Pooling
Agreement, the Purchase and Sale Agreements, the Indenture or any other
Transaction Documents; and (iv) shall not be responsible for any action taken or
omitted to be taken by it hereunder or under any other document or instrument
referred to or provided for herein or therein or in connection herewith or
therewith, except for its own gross negligence or willful misconduct.
(b) The Agent shall be entitled to rely upon any certification, notice or
other communication (including any thereof by telephone, telecopy, telex,
telegram or cable) reasonably believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person or Persons, and
upon advice and statements of legal counsel, independent accountants and other
experts selected by the Agent. As to any matters not expressly provided for by
this Agreement, the Agent shall in all cases be fully protected in acting,
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or in refraining from acting, hereunder or under the Pooling Agreement, the
Indenture or any other Transaction Documents in accordance with instructions of
the Required Lenders, and such instructions of the Required Lenders and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders.
(c) The Agent, if it is a Lender hereunder, shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it were
not acting as the Agent, and in such event the term "Lender" or "Lenders" or
"Lenders" or "Required Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity.
(d) The Lenders agree to indemnify the Agent (to the extent not reimbursed
under Section 2.10 or 8.04, but without limiting the obligations of the Trust
Depositor or the Servicer or the Trust under said Section 2.10 or 8.04) ratably
in accordance with each Lender's Pro Rata Share, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Agent in any way relating to or arising
out of this Agreement or any other documents contemplated by or referred to
herein or therein or the transactions contemplated hereby (excluding normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or of any such
other documents; provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified.
(e) Each Lender agrees that it has, independently and without reliance on
the Agent or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own credit analysis of and the decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement or the Pooling
Agreement, the Indenture or any other Transaction Documents. The Agent shall not
be required to keep itself informed as to the performance or observance by the
Trust Depositor, the Servicer, the Owner Trustee or the Indenture Trustee of
this Agreement or the Pooling Agreement, the Indenture or any other Transaction
Documents.
(f) Except for actions expressly required of the Agent hereunder, the Agent
shall in all cases be fully justified in failing or refusing to act hereunder or
under the Pooling Agreement, the Indenture or any other Transaction Documents
unless it shall receive further assurances to its satisfaction from the Lenders
of their indemnification obligations under Section 8.20(d) against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
(g) The Agent may resign as Agent upon 30 days' notice to the Lenders, the
Owner Trustee, the Indenture Trustee, the Trust Depositor and the Servicer with
such resignation becoming effective upon a successor agent succeeding to the
rights, powers and duties of the Agent pursuant to this Section 8.20(g). If the
Agent shall resign as Agent under this Agreement, then the Required Lenders
shall appoint a successor agent for the Lenders, subject to consent by
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the Trust Depositor (such consent not to be unreasonably withheld). The
successor agent shall succeed to the rights, powers and duties of the Agent, and
the term "Agent" shall mean such successor agent effective upon its appointment,
and the former Agent's rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such former Agent or any
of the parties to this Agreement. After any retiring Agent's resignation as
Agent, the provisions of this Section shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
(h) Any amount owed to the Lenders which is paid by or on behalf of the
Trust, TCC or the Trust Depositor shall be deemed satisfied to the extent such
payment was received by the Agent, whether or not the Agent shall have remitted
the Pro Rata Share of such payment to the Lenders.
Section 8.21. Income Tax Characterization. Each of the Trust Depositor, the
Servicer, the Trust, the Indenture Trustee, the Agent and the Lenders agree to
treat the Loans as indebtedness of the Trust Depositor for purposes of federal
income, state and local income and franchise and any other income taxes.
Section 8.22. Indenture Trustee. The Indenture Trustee shall be afforded
all of the rights, powers, immunities and indemnities set forth in the Indenture
in the performance of its duties hereunder as if such rights, powers, immunities
and indemnities were specifically set forth herein.
Section 8.23. Confidentiality. In connection with any purchase of an
interest or a participation related to the above-referenced Loan Agreement or of
becoming a Lender hereunder (the "Transaction"), NCT Funding and TCC recognizes
that a purchaser of a participation or a Lender will need certain confidential
information relating to NCT Funding and TCC (such information, including
information obtained through inspection of NCT Funding or TCC pursuant to
Section 5.08 of this Agreement, "Information") including Information relating to
TCC's equipment lease programs that has not been disclosed to the public.
Because the use or disclosure of such Information would be damaging to NCT
Funding or TCC, each of NCT Funding and TCC are willing to supply such
Information to a prospective purchaser of a participation or a prospective
Lender only if the prospective purchaser of a participation or a prospective
Lender agrees to the conditions set forth below. The term "Information" shall
not include, and the following conditions shall not apply to, information that
(i) is published or part of the public knowledge prior to its receipt by such
prospective purchaser of a participation or a prospective Lender from the Agent,
NCT Funding or TCC, (ii) becomes published or part of the public knowledge after
its receipt by such prospective purchaser of a participation or prospective
Lender from the Agent, NCT Funding or TCC, (iii) was known to such prospective
purchaser of a participation or prospective Lender prior to its receipt by such
prospective purchaser of a participation or prospective Lender from the Agent,
NCT Funding or TCC, or (iv) is acquired by such prospective purchaser of a
participation or prospective Lender from someone other than the Agent, NCT
Funding or TCC or a representative thereof, provided that such representative
has a right to convey the information without restriction.
-38-
Accordingly, in consideration of the foregoing, any prospective purchaser
of a participation or prospective Lender agree (on behalf of itself and each of
its affiliates, directors, officers, employees and representatives) that (A) the
Information will not be used by such prospective purchaser of a participation or
prospective Lender except in connection with the proposed Transaction mentioned
above and (B) such prospective purchaser of a participation or prospective
Lender shall use reasonable precautions, in accordance with its respective
customary procedures for handling confidential information and in accordance
with safe and sound banking practices, to keep the Information confidential,
provided that nothing herein shall limit the disclosure of any such information
(i) to the extent required by statute, rule, regulation or judicial process,
(ii) to such prospective purchaser of a participation or prospective Lender's
counsel or to counsel for any of the Lenders or the Agent, (iii) to bank
examiners, auditors or accountants, (iv) to the Agent or any other Lender, (v)
in connection with any litigation to which you or any one or more of the Lenders
is a party; provided, further, that, unless specifically prohibited by
applicable law or court order, such prospective purchaser of a participation or
prospective Lender agree, prior to disclosure of any of the Information, to
notify the Trust Depositor or the Agent, as applicable, of any request for
disclosure of any such information, (x) by any governmental agency or
representative thereof (other than any such request in connection with an
examination of your financial condition by such governmental agency) or (y)
pursuant to legal process.
[signature page follows]
-39-
IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to
be duly executed by their respective officers as of the day and year first above
written.
NCT FUNDING COMPANY, L.L.C., as Trust
Depositor
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------
Title: Senior Vice President
---------------------------------
AT&T CAPITAL CORPORATION, in its individual
capacity and as Servicer
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------
Title: Senior Vice President
---------------------------------
CIT EQUIPMENT COLLATERAL 2000-1
By: ALLFIRST FINANCIAL CENTER NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
---------------------------------
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Indenture Trustee
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------
Title: Vice President
---------------------------------
AT&T CAPITAL CORPORATION, as Agent,
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------
Title: Senior Vice President
---------------------------------
-40-
LENDERS
AT&T CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Its: Senior Vice President
----------------------------------------
Loan Commitment: $9,492,882.00
---------------------------
-41-
EXHIBIT A
FORM OF
[ASSIGNMENT AND ASSUMPTION AGREEMENT]
[PARTICIPATION AGREEMENT]
(Equipment Collateral 2000-1)
dated as of __________
Reference is made to the Loan Agreement, dated as of April 1, 2000 (as
amended from time to time, the "Loan Agreement") among CIT EQUIPMENT COLLATERAL
2000-1 (the "Trust"), THE CHASE MANHATTAN BANK, as indenture trustee (the
"Indenture Trustee"), NCT FUNDING COMPANY, L.L.C., as Trust Depositor, AT&T
CAPITAL CORPORATION, as Servicer, each of the lenders that is a signatory
thereto (together with its successors and assigns) (the "Lenders") and AT&T
CAPITAL CORPORATION, as Agent for the Lenders (the "Agent"). Terms defined in
the Loan Agreement are used herein as defined therein. __________ ("Assignor")
and __________ [("Assignee")] [("Participant")] hereby agree as follows:
1. The Assignor hereby sells and assigns to the [Assignee] [Participant]
without recourse and without representation or warranty (other than as expressly
provided herein), and the [Assignee] [Participant] hereby purchases and assumes
from the Assignor, that interest in and to all of the Assignor's rights and
obligations under the Loan Agreement as of the effective date hereof which
represents those and only those credit facilities contained in the Loan
Agreement which are set forth on Schedule I hereto (the "Assigned Facilities"),
in a principal amount for each Assigned Facility as set forth on such Schedule I
hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor; (ii)
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
the Loan Agreement, the Pooling Agreement, the Indenture or any other
Transaction Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Agreement, any Transaction
Document or any other instrument or document furnished pursuant thereto; and
(iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any party to the Loan Agreement or any
Transaction Document or the performance or observance by any party to the Loan
Agreement or any Transaction Document or of any of their respective obligations
under the Loan Agreement, any Transaction Document or any other instrument or
document furnished pursuant thereto.
3. The [Assignee] [Participant] (i) confirms that it has received a copy of
the Loan Agreement, together with copies of the financial statements referred to
therein and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this [Assignment and
Assumption] [Participation] Agreement; (ii) agrees that it will independently
and without reliance upon the Agent, the Assignor or any other
Lenders and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Agreement or the Transaction Documents; (iii)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under the Loan Agreement and Transaction Documents as
are delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Agreement are required to be performed by it as a Lender and agrees not to
unreasonably withhold its consent to actions permitted to be taken under the
Loan Agreement with the consent of the Required Lenders; and (v) has supplied
the information requested in the administrative questionnaire attached hereto as
Schedule II.
4. Following the execution of this [Assignment and Assumption]
[Participation] Agreement by the Assignor and the [Assignee] [Participant], an
executed original hereof (together with all attachments) will be delivered to
the Agent (with a copy to the Servicer and the Trust Depositor). The effective
date of this [Assignment and Assumption] [Participation] Agreement shall be the
later of the effective date set forth in Schedule I and the date of execution
hereof by the Assignor and the [Assignee] [Participant].
[5. Upon delivery of a fully executed original hereof (including, if
required pursuant to Section 8.09 of the Loan Agreement, the signed consent of
the Trust Depositor) to the Agent, as of the effective date, (i) the Assignee
shall be a party to the Loan Agreement and, to the extent provided in this
Assignment and Assumption Agreement, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent provided in this
Assignment and Assumption Agreement and except as provided in Section 8.09 of
the Loan Agreement, relinquish its rights and be released from its obligations
under the Loan Agreement.]
[6. It is agreed that the Assignee shall be entitled to all interest and
fees in respect of the Assigned Facilities which accrues on and after the
effective date hereof, such interest and fees to be paid by the Agent directly
to the Assignee. It is further agreed that all payments of principal made on the
Loan which occur on and after the effective date hereof will be paid directly by
the Agent to the Assignee. Upon the execution of this Assignment and Assumption
Agreement, the Assignee shall pay to the Assignor an amount specified by the
Assignor in writing which represents the portion of the principal amount of the
respective Loan made by the Assignor pursuant to the Loan Agreement outstanding
on the effective date hereof which constitute Assigned Facilities. The Assignor
and the Assignee shall make all appropriate adjustments in payment under the
Loan Agreement for periods prior to the effective date hereof directly between
themselves on or prior to the effective date hereof.]
7. The [Assignee] [Participant] represents, warrants and covenants that it
has not acquired, and shall not sell, trade or transfer any interest in its [Pro
Rata Share] [Participation], nor cause any interest in its [Pro Rata
Share][Participation] to be marketed on or through either (i) an "established
securities market" within the meaning of Section 7704(b)(1) of the Internal
Revenue Code of 1986 (the "Code") (including an interdealer quotation system
that regularly disseminates firm buy or sell quotations by identified brokers or
dealers by electronic means or otherwise) or (ii) a "secondary market" within
the meaning of Code Section 7704(b)(2)
A-2
(including a market wherein interests in Pro Rata Shares or Participations
therein are regularly quoted by any person making a market in such interests and
a market wherein any person regularly makes available bid or offer quotes with
respect to interests in Pro Rata Shares or Participations therein and stands
ready to effect buy or sell transactions at the quoted prices for itself or on
behalf of others).
8. Unless the Trust Depositor consents otherwise (which consent shall be
based on an Opinion of Counsel generally to the effect that the action taken
pursuant to the consent will not cause the Trust to become a publicly traded
partnership treated as a corporation), the [Assignee] [Participant] represents,
warrants and covenants that either (i) it is properly classified as, and will
remain classified as, a "corporation" as described in Code Section 7701(a)(3)
and is not, and will not become, an "S corporation" under Code Section 1361, or
(ii) neither (x) substantially all of the value of any beneficial owner's
interest in the [Assignee] [Participant] is attributable to the [Assignee's]
[Participant's] [Pro Rata Share] [Participation] nor (y) its acquisition of the
[Pro Rata Share] [Participation] is for the purpose of permitting the Trust to
avoid the 100-partner limitation of Treasury Regulation Section
1.7704-1(h)(3)(ii) in the event the Trust is characterized as a partnership for
federal income tax purposes (an entity meeting the requirements of either (i) or
(ii) being a "Permitted Entity"). The [Assignee] [Participant] represents,
warrants and covenants that it shall (i) cause each of its assignees and
Participants otherwise permitted under the Loan Agreement to make
representations, warranties and covenants as required by Section 8.09(d) of the
Loan Agreement for the benefit of the Trust Depositor and the Trust at the time
such assignee or Participant became an assignee or Participant and (ii) forward
a copy of such representations, warranties and covenants to the Indenture
Trustee. In the event of any breach of the representation, warranty and covenant
of the [Assignee] [Participant] or its Participant that the [Assignee]
[Participant] and its Participants shall remain a Permitted Entity, the
[Assignee] [Participant] shall notify the Agent and the Trust Depositor promptly
upon the [Assignee] [Participant]'s becoming aware of such breach, and thereupon
the Agent and the [Assignee] [Participant] hereby agree to use reasonable
efforts to procure a replacement investor not so affected which is a Permitted
Assignee reasonably acceptable to the Agent or is otherwise reasonably
acceptable to the Trust Depositor and the Agent to replace the [Assignee]
[Participant]. In any such event, Trust Depositor shall also have the right to
procure a replacement investor, provided that such proposed replacement investor
is a Permitted Assignee or is otherwise reasonably acceptable to the Agent. The
[Assignee] [Participant] hereby agrees to take all actions necessary to permit a
replacement investor to succeed to its rights and obligations hereunder. [If the
[Assignee] [Participant] has a Participant which has breached its
representation, warranty and covenant that it shall remain a Permitted Entity,
the [Assignee] [Participant] hereby agrees (without limiting the right of Trust
Depositor to procure a replacement investor for the [Assignee] [Participant] as
provided above in this paragraph) to notify the Trust Depositor and the Agent of
such breach promptly upon the [Assignee] [Participant]'s becoming aware thereof
and to use reasonable efforts to procure a replacement Participant, as
applicable, not so affected which is a Permitted Assignee or is otherwise
acceptable to the Trust Depositor and the Agent to replace any such
Participant.]
[if [Assignee] [Participant] is organized under the laws of any
jurisdiction outside the United States:
A-3
9. The [Assignee] [Participant] represents and warrants that, under
applicable law no taxes will be required to be withheld by the Agent, the Trust,
the Indenture Trustee, the Trust Depositor, the Servicer or any Lender with
respect to any payments to be made to the [Assignee] [Participant] in respect of
an interest in its [Pro Rata Share][Participation].
10. The [Assignee] [Participant] agrees (for the benefit of the Agent, the
Trust, the Owner Trustee, the Indenture Trustee, the Trust Depositor, the
Servicer and the Lenders) to provide those forms required to be provided by
Sections 2.08(d), 8.08(b), 8.08(c) and 8.08(f) of the Loan Agreement, as
applicable, at the time and in the manner described therein, and to comply with
all applicable U.S. laws and regulations with regard to the related withholding
tax exemptions.]
11. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[signature page follows]
A-4
IN WITNESS WHEREOF, the parties hereto have caused this [Assignment and
Assumption][Participation] Agreement to be duly executed as of the day and year
first above written on Schedule I hereto.
[NAME OF ASSIGNOR], [NAME OF ASSIGNEE],
as Assignor as Assignee
By: By:
--------------------- --------------------
Title: Title:
----------------- -----------------
ACCEPTED:
AT&T CAPITAL CORPORATION
as Agent
By:
--------------------
Title:
-----------------
The undersigned acknowledges receipt from the Assignor and the Assignee of
a copy of the foregoing [Assignment and Assumption][Participation] Agreement.
NCT FUNDING COMPANY, L.L.C.
as Trust Depositor
By:
--------------------
Title:
-----------------
A-5
Schedule I to the [Assignment and
Assumption][Participation] Agreement
Legal Name of Assignor:
Legal Name of Assignee:
Effective Date of Assignment: __________, 19__
Facility Assigned
Total Commitment of
Assignee after Assignment: $________
Principal Amount of Loans of
Assignee after Assignment: $________
Pro Rata Share of Assignee
after Assignment: _____%
Facility Retained by Assignor
Total Commitment of Assignor
after Assignment: $________
Principal Amount of Loans of
Assignor after Assignment: $________
Pro Rata Share of Assignor
after Assignment: _____%
A-6
Schedule II to the [Assignment and
Assumption][Participation] Agreement
Administrative Details Reply Form
1. LENDING OFFICE:
Name of Lending Entity:
Address:
Telex No:
Fax No:
2. CONTACTS - CREDIT MATTERS
Name of Person:
Address:
Telephone:
Fax No:
3. CONTACTS - OPERATIONS/ADMINISTRATION
Name of Person:
Address:
Telephone:
Telex No:
Fax No:
4. PAYMENT INSTRUCTIONS
Pay To:
Address:
ABA Number:
Acct. Number:
Acct. Name:
Reference:
A-7
EXHIBIT B
FORM OF MONTHLY STATUS REPORT
EXHIBIT C
FORM OF CONFIDENTIALITY AGREEMENT
[DATE]
CONFIDENTIALITY AGREEMENT
[Insert Name and
Address of Prospective
Assignee or Participant]
Re: Loan Agreement, dated as of April 1, 2000 (as amended from time to
time, the "Loan Agreement") among CIT Equipment Collateral 2000-1 (the
"Trust"), The Chase Manhattan Bank, as indenture trustee (the
"Indenture Trustee"), NCT FUNDING COMPANY, L.L.C. ("NCT Funding"), as
Trust Depositor, AT&T CAPITAL CORPORATION ("TCC"), as Servicer, each of
the lenders that is a signatory thereto (together with its successors
and assigns) (the "Lenders") and AT&T CAPITAL CORPORATION as Agent for
the Lenders (the "Agent").
Ladies and Gentlemen:
In connection with your consideration of a purchase of an interest or a
participation related to the above-referenced Loan Agreement or of becoming a
Support Bank as described in such Loan Agreement (the "Transaction"), we and
each of NCT Funding and TCC recognize that you will need certain confidential
information furnished to us by NCT Funding and TCC or by such parties directly
to you (such information, including information obtained through inspection of
NCT Funding or TCC pursuant to Section 5.08 of the Loan Agreement,
"Information") about NCT Funding and TCC and its equipment lease programs that
has not been disclosed to the public. Because the use or disclosure of such
Information would be damaging to NCT Funding or TCC, each of NCT Funding and TCC
are willing to supply, or to permit us to supply, you with such Information only
if you agree to the conditions set forth below. The term "Information" shall not
include, and the following conditions shall not apply to, information that (i)
is published or part of the public knowledge prior to its receipt by you from
us, NCT Funding or TCC, (ii) becomes published or part of the public knowledge
after its receipt by you from us, NCT Funding or TCC, (iii) was known to you
prior to its receipt by you from us, NCT Funding or TCC, or (iv) is acquired by
you from someone other than us, NCT Funding or TCC or a representative thereof,
provided that such representative has a right to convey the information without
restriction.
Accordingly, in consideration of the foregoing, you agree (on behalf of
yourself and each of your affiliates, directors, officers, employees and
representatives) that (A) the Information will not be used by you except in
connection with the proposed Transaction mentioned above and (B) you shall use
reasonable precautions, in accordance with your customary procedures for
handling confidential information and in accordance with safe and sound banking
practices, to keep the Information confidential, provided that nothing herein
shall
limit the disclosure of any such information (i) to the extent required by
statute, rule, regulation or judicial process, (ii) to your counsel or to
counsel for any of the Lenders or the Agent, (iii) to bank examiners, auditors
or accountants, (iv) to the Agent or any other Lender, (v) in connection with
any litigation to which you or any one or more of the Lenders is a party;
provided, further, that, unless specifically prohibited by applicable law or
court order, you agree, prior to disclosure of any of the Information, to notify
the Trust Depositor or the Agent, as applicable, of any request for disclosure
of any such information, (x) by any governmental agency or representative
thereof (other than any such request in connection with an examination of your
financial condition by such governmental agency) or (y) pursuant to legal
process.
Would you please indicate your agreement to the foregoing by signing at the
place provided below the enclosed copy of this Confidentiality Agreement.
Very truly yours,
[Insert Name of Lender]
By:
---------------------
Name:
----------------
Title:
----------------
The foregoing is agreed to as
of the date of this letter
[Insert name of prospective
assignee or participant]
By:
---------------------
Name:
----------------
Title:
----------------
C-2
