LOAN AGREEMENT
AMONG
CIT EQUIPMENT COLLATERAL 2000-2,
AS THE TRUST,
ALLFIRST BANK,
AS INDENTURE TRUSTEE,
NCT FUNDING COMPANY, L.L.C.,
AS TRUST DEPOSITOR,
CAPITA CORPORATION
IN ITS INDIVIDUAL CAPACITY AND AS SERVICER,
THE LENDER PARTIES HERETO, FROM TIME TO TIME,
AS LENDERS,
AND
CAPITA CORPORATION,
AS AGENT
DATED AS OF SEPTEMBER 1, 2000
RELATING TO
CIT EQUIPMENT COLLATERAL 2000-2
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......................................................11
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..................................................................22
Section 3.04. No Violation..........................................................................23
Section 3.05. No Proceeding.........................................................................23
Section 3.06. Registration and Prospectus; Other Information........................................23
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...........................................24
Section 3.11. Adverse Selection.....................................................................24
ARTICLE IV CONDITIONS PRECEDENT.......................................................................24
Section 4.01. Representations and Warranties........................................................24
Section 4.02. Transaction Agreements................................................................25
Section 4.03. Additional Documents..................................................................25
Section 4.04. Accountant's Letter...................................................................25
Section 4.05. Note Issuance and Holdback Amount.....................................................25
Section 4.06. Secretary's Certificate...............................................................25
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.....................................................................................26
Section 5.01. Performance of Agreements.............................................................26
Section 5.02. Amendments to the Pooling Agreement, Purchase and Sale Agreements and the Indenture...26
Section 5.03. Certificates..........................................................................27
Section 5.04. Monthly Status Reports................................................................27
Section 5.05. Default...............................................................................27
Section 5.06. Timely Payments.......................................................................27
Section 5.07. Successor Indenture Trustee...........................................................27
Section 5.08. Inspection............................................................................27
Section 5.09. Periodic Reports of the Accountants...................................................28
Section 5.10. Other Actions.........................................................................28
Section 5.11. Trust Depositor Financial Information; Other Information..............................28
Section 5.12. Lenders' Identities...................................................................28
ARTICLE VI REPRESENTATIONS AND WARRANTIES AND AGREEMENTS OF THE LENDERS.................................29
Section 6.01. Representations and Warranties of the Lenders.........................................29
ARTICLE VII [RESERVED].................................................................................29
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...................................................31
Section 8.09. Notices...............................................................................33
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...................................................................34
Section 8.15. Waiver of Jury Trial..................................................................34
Section 8.16. Headings..............................................................................34
Section 8.17. Jurisdiction, Consent to Service of Process...........................................34
Section 8.18. Bankruptcy............................................................................35
Section 8.19. Nonpetition Agreements; Rights in Trust Property......................................35
Section 8.20. Agent.................................................................................35
Section 8.21. Income Tax Characterization...........................................................37
Section 8.22. Indenture Trustee.....................................................................37
Section 8.23. Confidentiality.......................................................................37
Section 8.24. Limitation of Liability of Owner Trustee..............................................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 September 1, 2000 (this "Agreement"),
among CIT EQUIPMENT COLLATERAL 2000-2 (the "Trust"), ALLFIRST 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"), CAPITA CORPORATION, in its individual capacity (in such
capacity, "TCC") and as servicer (in such capacity, together with its successors
and assigns, the "Servicer"), the entities that are parties hereto from time to
time as lenders (each individually a "Lender" and, collectively, the "Lenders")
and CAPITA CORPORATION, as agent for the Lenders (together with its successors
in such capacity, the "Agent").
WHEREAS, the Trust Depositor, the Servicer, the Trust and CIT Financial
USA, Inc., a Delaware corporation ("CFUSA") have entered into a Pooling and
Servicing Agreement, dated as of September 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 seven classes in the manner
designated pursuant to an Indenture, dated September 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
September 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).
"CFUSA" shall mean CIT Financial USA, Inc.
"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
-2-
state thereof or the District of Columbia (or any domestic branch or agency
of a foreign 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.
-3-
"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, 6.62% 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 Servicer, approximately 11:00 a.m. (New York City time) on the first day of
such Loan Interest
-4-
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.
"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 September 1, 2000 by and among the Trust Depositor, the Trust, TCC
(individually and as Servicer) and CFUSA.
"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 assignee Lender, the effective date of
the related Assignment Agreement), in any (or the adoption after such date of
any new):
-5-
(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) January 20, 2012.
"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 references are to this Agreement, unless
otherwise specified. The words "including" and "include" shall be deemed to be
followed by the words "without limitation".
-6-
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 $18,515,552. It will be a condition to
the obligations of the Lenders to make such Loans that the Trust retain
$50,256,499 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:
(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;
-7-
(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.
(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:
-8-
(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];
(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;
-9-
(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, the Administrator 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 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
-10-
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).
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.
-11-
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 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
-12-
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 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
-13-
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
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
-14-
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 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
-15-
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 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
-16-
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 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).
-17-
(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 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 CFUSA 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.
-18-
(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), CFUSA,
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
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);
-19-
(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, 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
-20-
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 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
-21-
(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 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
-22-
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
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.
-23-
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 CFUSA 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 right to have CFUSA 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)
CFUSA, at the time of sale to the Trust Depositor to the Trust, or (ii) the
Trust Depositor on September 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
-24-
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 CFUSA 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, 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.
-25-
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 ▇▇▇▇▇'▇, (ii)
the Class B Notes have been rated no lower than "AA" by S&P and "Aa3" by
▇▇▇▇▇'▇, (iii) the Class C Notes have been rated no lower than "A" by S&P and
"A2" by ▇▇▇▇▇'▇, (iv) the Class D Notes have been rated no lower than "BBB" by
S&P and "Baa3" by ▇▇▇▇▇'▇, 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 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
-26-
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 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
-27-
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 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.
-28-
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;
(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]
-29-
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 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
-30-
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.
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
-31-
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.
(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
-32-
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).
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 ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel (with a copy to the attention of the
Treasurer), (telecopy no. (▇▇▇) ▇▇▇-▇▇▇▇), 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: Chase Manhattan Bank, NY
ABA#: ▇▇▇▇▇▇▇▇▇
A/C#: 322-021979
A/C Name: AT&T Capital Corporation
Reference: Securitization
-33-
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.
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
-34-
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 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
-35-
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, 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
-36-
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 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
-37-
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.
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.
Section 8.24. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this instrument has
been countersigned by Chase Manhattan Bank USA, National Association, not in its
individual capacity, but solely in its capacity as Owner Trustee of the Trust
and in no event shall Chase Manhattan Bank USA, National Association in its
individual capacity or any beneficial owner of the Trust have any liability for
the representations, warranties, covenants, agreements or other obligations of
the Trust hereunder, as to all of which recourse shall be had solely to the
assets of the Trust. For all purposes of this Agreement, in the performance of
any duties or obligations of the Trust hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of the
Trust Agreement.
[SIGNATURE PAGE FOLLOWS]
-38-
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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
-------------------------------
CAPITA CORPORATION, in its individual capacity and
as Servicer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
--------------------------------
CIT EQUIPMENT COLLATERAL 2000-2
By: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: Vice President
-------------------------------
ALLFIRST BANK, not in its individual capacity but solely
as Indenture Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: Senior Vice President
-------------------------------
CAPITA CORPORATION, as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
-------------------------------
-▇▇-
▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Its: Vice President
----------------------------------
Loan Commitment: $18,515,552
-40-
EXHIBIT A
FORM OF
[ASSIGNMENT AND ASSUMPTION AGREEMENT]
[PARTICIPATION AGREEMENT]
(CIT Equipment Collateral 2000-2)
dated as of __________
Reference is made to the Loan Agreement, dated as of September
1, 2000 (as amended from time to time, the "Loan Agreement") among CIT EQUIPMENT
COLLATERAL 2000-2 (the "Trust"), ALLFIRST BANK, as indenture trustee (the
"Indenture Trustee"), NCT FUNDING COMPANY, L.L.C., as Trust Depositor, CAPITA
CORPORATION, as Servicer, each of the lenders that is a signatory thereto
(together with its successors and assigns) (the "Lenders") and CAPITA
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) (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
A-2
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:
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
A-3
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:
CAPITA 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
B-1
EXHIBIT C
FORM OF CONFIDENTIALITY AGREEMENT
[DATE]
CONFIDENTIALITY AGREEMENT
[Insert Name and
Address of Prospective
Assignee or Participant]
Re: Loan Agreement, dated as of September 1, 2000 (as amended from
time to time, the "Loan Agreement") among CIT Equipment
Collateral 2000-2 (the "Trust"), ALLFIRST BANK, as indenture
trustee (the "Indenture Trustee"), NCT FUNDING COMPANY, L.L.C.
("NCT Funding"), as Trust Depositor, CAPITA CORPORATION
("TCC"), as Servicer, each of the lenders that is a signatory
thereto (together with its successors and assigns) (the
"Lenders") and CAPITA 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
C-1
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