EXHIBIT 10.1
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ADMINISTRATION AGREEMENT
among
CIT EQUIPMENT COLLATERAL 2004-EF1
as Issuer,
THE CIT GROUP/EQUIPMENT FINANCING, INC. ,
as Administrator
NCT FUNDING COMPANY, L.L.C.,
as Trust Depositor,
and
JPMORGAN CHASE BANK
as Indenture Trustee
Dated as of May 1, 2004
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TABLE OF CONTENTS
Page
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Section 1. Duties of the Administrator............................................1
Section 2. Records................................................................7
Section 3. Compensation...........................................................7
Section 4. Additional Information to be Furnished to the Issuer...................7
Section 5. Independence of the Administrator......................................7
Section 6. No Joint Venture.......................................................7
Section 7. Other Activities of Administrator......................................7
Section 8. Term of Agreement; Resignation and Removal of Administrator............8
Section 9. Action upon Termination, Resignation or Removal........................8
Section 10. Notices................................................................9
Section 11. Amendments............................................................10
Section 12. Successors and Assigns................................................10
Section 13. Governing Law.........................................................11
Section 14. Headings..............................................................11
Section 15. Counterparts..........................................................11
Section 16. Severability..........................................................11
Section 17. Not Applicable to CITEF in Other Capacities...........................11
Section 18. Limitation of Liability of Owner Trustee and Indenture Trustee........11
Section 19. Third-party Beneficiary...............................................12
Section 20. Survivability.........................................................12
EXHIBIT A LIMITED POWER OF ATTORNEY
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This Administration Agreement, dated as of May 1, 2004 (this
"Agreement"), is among CIT Equipment Collateral 2004-EF1 (the "Issuer"), The CIT
Group/Equipment Financing, Inc. (together with its successors and assigns,
"CITEF" and in its capacity as administrator the "Administrator"), NCT Funding
Company, L.L.C. (together with its successors and assigns, the "Trust
Depositor"), and JPMorgan Chase Bank, not in its individual capacity but solely
as Indenture Trustee (together with its successors and assigns, the "Indenture
Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer is issuing 1.63% Class A-1 Receivable-Backed
Notes, 2.57% Class A-2 Receivable-Backed Notes, 3.50% Class A-3
Receivable-Backed Notes, 2.99% Class B Receivable-Backed Notes, 4.14% Class C
Receivable-Backed Notes and 4.68% Class D Receivable-Backed Notes,
(collectively, the "Notes") pursuant to the Indenture, dated as of the date
hereof (the "Indenture"), between the Issuer and the Indenture Trustee
(capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Indenture or in the Pooling and Servicing
Agreement as defined in the Indenture);
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes and of certain beneficial ownership interests of
the Issuer, including (i) the Pooling and Servicing Agreement, (ii) the
Indenture and (iii) the other Transaction Documents to which the Issuer is a
party;
WHEREAS, pursuant to the Transaction Documents, the Issuer and the
Owner Trustee are required to perform certain duties in connection with (i) the
Notes and the Collateral therefor pledged pursuant to the Indenture and (ii) the
beneficial ownership interest in the Issuer evidenced by the Equity Certificate
(the registered holder of such interest being referred to herein as the
"Owner");
WHEREAS, the Issuer desires to have the Administrator perform certain
of the duties of the Issuer and the Owner Trustee referred to in the preceding
clause and to provide such additional services consistent with the terms of this
Agreement and the Transaction Documents as the Issuer and the Owner Trustee may
from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Duties of the Administrator.
(a) Duties with respect to the Transaction Documents.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under the
Transaction Documents. In addition, the Administrator shall consult with the
Owner Trustee regarding the
duties of the Issuer or the Owner Trustee under the Transaction Documents. The
Administrator shall monitor the performance of the Issuer and shall advise the
Owner Trustee when action is necessary to comply with the respective duties of
the Issuer and the Owner Trustee under the Transaction Documents. The
Administrator shall prepare for execution by the Issuer or shall cause the
preparation by other appropriate persons of, all such documents, reports,
filings, instruments, certificates and opinions that it shall be the duty of the
Issuer or the Owner Trustee to prepare, file or deliver pursuant to the
Transaction Documents. In furtherance of the foregoing, the Administrator shall
take all appropriate action that the Issuer or the Owner Trustee is required to
take pursuant to the Indenture including, without limitation, such of the
foregoing as are required with respect to the following matters under the
Indenture (all section references in this Section 1(a)(i) are to sections of the
Indenture):
(A) the duty to cause the Note Register to be kept and
to give the Indenture Trustee notice of any appointment of a new Note Registrar
and the location, or change in location, of the Note Register (Section 2.04);
(B) the notification of Noteholders of the final
principal payment on their Notes (Section 2.07(b)) or indicate on the Servicer
Report that the Principal Amount is 0;
(C) the preparation of or obtaining of the documents
and instruments required for execution and authentication of the Notes and
delivery of the same to the Indenture Trustee (Section 2.02);
(D) the preparation, obtaining or filing of the
instruments, opinions and certificates and other documents required for the
release of Collateral (Section 2.12);
(E) the maintenance of an office in New York, New York,
or the appointment of the Indenture Trustee as its agent therefor, for
registration of transfer or exchange of Notes (Section 3.02);
(F) the duty to cause newly appointed Paying Agents, if
any, to deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.03);
(G) the direction to the Indenture Trustee to deposit
monies with Paying Agents, if any, other than the Indenture Trustee (Section
3.03);
(H) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of the
Indenture, the Notes, the Collateral and each other instrument and agreement
included in the Collateral (Section 3.04);
(I) the preparation of all supplements and amendments
to the Indenture and all financing statements, continuation statements,
instruments of further assurance and other instruments and the taking of such
other action as is necessary or advisable to protect the Collateral other than
as prepared by the Servicer (Section 3.05);
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(J) the delivery of certain statements as to compliance
with the Indenture (Sections 3.09);
(K) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has contracted to perform
its duties under the Indenture (Section 3.07(b));
(L) the notification of the Indenture Trustee and each
Rating Agency of a Servicer Default under the Pooling and Servicing Agreement;
(M) the preparation and obtaining of documents and
instruments required for the release of the Issuer from its obligations under
the Indenture (Section 3.10(b));
(N) the monitoring of the Issuer's obligations as to
the satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of the Opinion of Counsel and the
Independent Certificate relating thereto (Section 4.01);
(O) the compliance with any written directive of the
Indenture Trustee with respect to the sale of the Collateral in a commercially
reasonable manner if an Event of Default shall have occurred and be continuing
(Section 5.04);
(P) the preparation and delivery of notice to
Noteholders of the removal of the Indenture Trustee and the appointment of a
successor Indenture Trustee (Section 6.08);
(Q) the preparation of any written instruments required
to confirm more fully the authority of any co-trustee or separate trustee and
any written instruments necessary in connection with the resignation or removal
of the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08
and 6.10);
(R) the furnishing of the Indenture Trustee with the
names and addresses of Noteholders during any period when the Indenture Trustee
is not the Note Registrar (Section 7.01);
(S) the filing of reports required by the Commission or
under the TIA (Section 7.03);
(T) the opening of one or more accounts in the
Indenture Trustee's name, the preparation and delivery of Issuer Orders,
Officer's Certificates and Opinions of Counsel and all other actions necessary
with respect to investment and reinvestment of funds in the Trust Accounts
(Sections 8.02 and 8.03);
(U) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Collateral (Sections 8.04 and
8.05);
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(V) the preparation of Issuer Orders and the obtaining
of Opinions of Counsel with respect to the execution of supplemental indentures
and the mailing to the Noteholders of notices with respect to such supplemental
indentures (Sections 9.01, 9.02 and 9.03);
(W) the execution and delivery of new Notes conforming
to any supplemental indenture (Section 9.06);
(X) the duty to notify Noteholders of redemption of the
Notes or to cause the Indenture Trustee to provide such notification (Section
10.02);
(Y) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent Certificates with respect to
any requests by the Issuer to the Indenture Trustee to take any action under the
Indenture (Section 11.01(a));
(Z) the preparation and delivery of Officer's
Certificates and the obtaining of Independent Certificates, if necessary, for
the release of property from the lien of the Indenture (Section 11.01(b));
(AA) the notification of the Rating Agencies, of any
merger or consolidation involving the Issuer, the Servicer, the Owner Trustee or
the Indenture Trustee and upon the failure of the Issuer, the Owner Trustee or
the Indenture Trustee to provide notification;
(BB) the preparation and delivery to Noteholders and
the Indenture Trustee of any agreements with respect to alternate payment and
notice provisions (Section 11.06); and
(CC) the recording of the Indenture, if applicable
(Section 11.14).
(ii) The Administrator agrees to:
(A) except as otherwise expressly provided in the
Indenture or the Pooling and Servicing Agreement, pay the Indenture Trustee's
fees and reimburse the Indenture Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Indenture Trustee
in accordance with any provision of the Transaction Documents (including the
reasonable compensation, expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith;
(B) assume the Issuer's obligations set forth in
Section 6.07 of the Indenture; and
(C) indemnify the Owner Trustee (including in its
individual capacity) and its officers, directors, employees or agents for, and
hold them harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection with the
acceptance or administration of the transactions
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contemplated by the Trust Agreement and this Agreement, including the reasonable
costs and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or duties
under the Trust Agreement (the indemnities provided by this section shall
include, without limitation, an indemnity as described above with respect to the
Trust Depositor's obligations in favor of the Owner Trustee under Section 8.02
of the Trust Agreement to the extent any such obligations to the Owner Trustee
remain unpaid).
(b) Additional Duties.
(i) In addition to the duties set forth in Section 1(a)(i),
the Administrator shall perform such calculations and shall prepare or shall
cause the preparation by other appropriate persons of, and shall execute on
behalf of the Issuer or the Owner Trustee, all such documents, reports, filings,
instruments, certificates and opinions that the Issuer or the Owner Trustee are
required to prepare, file or deliver pursuant to the Transaction Documents and
Sections 5.03, 6.01 and 6.02 of the Trust Agreement, and at the request of the
Owner Trustee shall take all appropriate action that the Issuer or the Owner
Trustee are required to take pursuant to the Transaction Documents. In
furtherance thereof, the Owner Trustee shall, on behalf of itself and of the
Issuer, execute and deliver to the Administrator and to each successor
Administrator appointed pursuant to the terms hereof, one or more powers of
attorney substantially in the form of Exhibit A hereto, appointing the
Administrator the attorney-in-fact of the Owner Trustee and the Issuer for the
purpose of executing on behalf of the Owner Trustee and the Issuer all such
documents, reports, filings, instruments, certificates and opinions. Subject to
Section 5 hereof, and in accordance with the directions of the Issuer, the
Administrator shall administer, perform or supervise the performance of such
other activities in connection with the Collateral (including the Transaction
Documents) as are not covered by any of the foregoing provisions and as are
expressly requested by the Issuer and are reasonably within the capability of
the Administrator.
(ii) Notwithstanding anything in this Agreement or the
Transaction Documents to the contrary, the Administrator shall be responsible
for promptly notifying the Owner Trustee in the event that any withholding tax
is imposed on the Trust's payments (or allocations of income) to the Owner as
contemplated in Section 5.04 of the Trust Agreement. Any such notice shall
specify the amount of any withholding tax required to be withheld by the Owner
Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the
Transaction Documents to the contrary, the Administrator shall be responsible
for performance of its duties and the duties of the Trust set forth in Section
5.07 of the Trust Agreement with respect to, among other things, accounting and
reports to the Equity Certificateholder; provided, however, that the Owner
Trustee shall retain responsibility for the distribution of information forms in
its possession as requested by the Owner or the Administrator and which are
necessary to enable the Trust to prepare its federal and state income tax
returns in its possession as requested by the Owner or the Administrator.
(iv) The Administrator shall satisfy its obligations with
respect to clauses (ii) and (iii) above by retaining, at the expense of the
Trust payable by the
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Administrator, a firm of independent public accountants (the "Accountants")
acceptable to the Owner Trustee, which shall perform the obligations of the
Administrator thereunder.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.02 of the Trust Agreement required to be
performed in connection with the resignation or removal of the Owner Trustee,
and any other duties expressly required to be performed by the Administrator
under the Trust Agreement.
(vi) The Administrator shall not direct the Owner Trustee to
take or to refrain from taking any action if such action or inaction: (A) would
be contrary to any obligation of the Trust or the Owner Trustee under this
Agreement or any of the other Transaction Documents, (B) to the actual knowledge
of a Responsible Officer of the Owner Trustee, would result in the Trust's
becoming taxable as a corporation for federal or state income tax purposes or
(C) would be contrary to the purpose of the Trust.
(vii) Upon acceptance of appointment by a successor Owner
Trustee pursuant to the Trust Agreement, the Administrator shall mail notice
thereof to the Equity Certificateholder, the Indenture Trustee, the Noteholders
and each Rating Agency.
(viii) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its Affiliates; provided, however,
that the terms of any such transactions or dealings shall be in accordance with
any directions received from the Issuer and shall be, in the Administrator's
opinion, no less favorable to the Issuer than would be available from
unaffiliated parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment
of the Administrator are non-ministerial, the Administrator shall not take any
action unless within a reasonable time before the taking of such action, the
Administrator shall have notified the Owner Trustee of the proposed action and
the Owner Trustee shall not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial matters"
shall include, without limitation:
(A) the amendment of or any supplement to the
Indenture;
(B) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action, claim or lawsuit brought by or against
the Issuer (other than in connection with the collection of the Contracts);
(C) the amendment, change or modification of any other
Transaction Documents;
(D) the appointment of successor Note Registrars,
successor Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators or a successor
Servicer, or the consent to the
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assignment by the Note Registrar, Paying Agent or Indenture Trustee of its
obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not, (A) make
any payments to the Noteholders under the Transaction Documents, (B) sell the
Collateral pursuant to Section 5.04(d) of the Indenture, (C) take any other
action that the Issuer directs the Administrator not to take on its behalf or
(D) take any other action which may be construed as having the effect of varying
the terms of the investment of the Noteholders or the Equity Certificateholder.
Section 2. Records. The Administrator shall maintain appropriate books
of account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer and the
Owner Trustee at any time during normal business hours.
Section 3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to a monthly fee
which shall be solely an obligation of the Servicer as contemplated in Section
5.19 of the Pooling and Servicing Agreement and which shall be in an amount as
shall be agreeable to the Trust Depositor and the Administrator.
Section 4. Additional Information to be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
Section 5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
Section 6. No Joint Venture. Nothing contained in this Agreement (i)
shall constitute the Administrator and either of the Issuer or the Owner Trustee
as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
Section 7. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other business or,
in its sole discretion, from acting in a similar capacity as an administrator
for any other Person or entity even though such person or entity may engage in
business activities similar to those of the Issuer, the Owner Trustee or the
Indenture Trustee.
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Section 8. Term of Agreement; Resignation and Removal of
Administrator. This Agreement shall continue in force until the termination of
the Trust Agreement, upon which event this Agreement shall automatically
terminate.
(a) Subject to Section 8(d) and Section 8(e) hereof, the
Administrator may resign its duties hereunder by providing the Issuer with at
least sixty (60) days' prior written notice.
(b) Subject to Section 8(d) and Section 8(e) hereof, the Issuer
may remove the Administrator without cause by providing the Administrator with
at least sixty (60) days' prior written notice.
(c) Subject to Section 8(d) and Section 8(e) hereof, at the sole
option of the Issuer, the Administrator may be removed immediately upon written
notice of termination from the Issuer to the Administrator if any of the
following events shall occur:
(i) the Administrator shall default in the performance of
any of its duties under this Agreement and, after notice of such default, shall
not cure such default within ten (10) days (or, if such default cannot be cured
in such time, shall not give within ten (10) days such assurance of cure as
shall be reasonably satisfactory to the Issuer); or
(ii) an Insolvency Event shall occur with respect to the
Administrator.
The Administrator agrees that if any of the events specified in clause
(ii) above shall occur, it shall give written notice thereof to the Issuer and
the Indenture Trustee within seven (7) days after the occurrence of such event.
(d) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator shall have
been appointed by the Issuer and (ii) such successor Administrator shall have
agreed in writing to be bound by the terms of this Agreement in the same manner
as the Administrator is bound hereunder.
(e) The appointment of any successor Administrator shall be
effective only after the satisfaction of the Rating Agency Condition with
respect to the proposed appointment.
(f) Subject to Section 8(d) and 8(e) hereof, the Administrator
acknowledges that upon the appointment of a Successor Servicer pursuant to the
Pooling and Servicing Agreement, the Administrator shall immediately resign.
Section 9. Action upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of this Agreement pursuant to Section 8
or the resignation or removal of the Administrator pursuant to Section 8(a), (b)
or (c) hereof respectively, the Administrator shall be entitled to be paid all
fees and reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 8 hereof deliver to the Issuer all property and documents of
or relating to the Collateral then in the custody of the Administrator. In the
event of the resignation
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or removal of the Administrator pursuant to Section 8(a), (b) or (c) hereof,
respectively, the Administrator shall cooperate with the Issuer and take all
reasonable steps requested to assist the Issuer in making an orderly transfer of
the duties of the Administrator.
Section 10. Notices. All notices, demands, certificates, requests and
communications hereunder ("notices") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or (d) on the date transmitted by
legible telecopier transmission with a confirmation of receipt, in all cases
addressed to the recipient as follows:
(i) If to the Administrator:
The CIT Group/Equipment Financing, Inc.
▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasury - Securitization
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Trust Depositor:
NCT Funding Company, L.L.C.
▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasury - Securitization
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) If to the Indenture Trustee:
JPMorgan Chase Bank
4 New York Plaza, 6th ▇▇▇▇
New York, New York 10004
Attn: Institutional Trust Services - Global Debt
CIT Equipment Collateral 2004-EF1
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iv) If to the Issuer or the Owner Trustee:
Deutsche Bank Trust Company Delaware
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: CIT Equipment Collateral 2004-EF1
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Deutsche Bank Trust Company Americas
Structured Finance Services
Trust and Securities Services
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Mail Stop: NYC 60-2606
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
Section 11. Amendments. This Agreement may be amended from time to
time by a written amendment duly executed and delivered by the parties hereto,
with the written consent of the Owner Trustee but without the consent of the
Noteholders and the Equity Certificateholder, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Noteholders or
the Equity Certificateholder; provided that such amendment will not, in the
Opinion of Counsel satisfactory to the Indenture Trustee, materially and
adversely affect the interest of any Noteholder or the Equity Certificateholder.
This Agreement may also be amended by the parties hereto with the written
consent of the Owner Trustee and the Required Holders for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of Noteholders or the
Equity Certificateholder; provided, however, that no such amendment may (i)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on the Contracts or distributions that are
required to be made for the benefit of the Noteholders or the Equity
Certificateholder or (ii) reduce the aforesaid percentage of the Noteholders and
the Equity Certificateholder which are required to consent to any such
amendment, without the consent of the Noteholders of all outstanding Notes and
the Equity Certificate. Notwithstanding the foregoing, the Administrator may not
amend this Agreement without the permission of the Trust Depositor, which
permission shall not be unreasonably withheld. Promptly after the execution of
any amendment to this Agreement, the Administrator shall furnish written
notification of the substance of such amendment, together with a copy thereof,
to each Rating Agency.
Section 12. Successors and Assigns. This Agreement may not be assigned
by the Administrator unless such assignment is previously consented to in
writing by the Issuer, the Indenture Trustee and the Owner Trustee and subject
to the satisfaction of the Rating Agency Condition in respect thereof. An
assignment with such consent and satisfaction, if accepted by
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the assignee, shall bind the assignee hereunder in the same manner as the
Administrator is bound hereunder. Notwithstanding the foregoing, this Agreement
may be assigned by the Administrator without the consent of the Issuer or the
Owner Trustee to a corporation or other organization that is a successor (by
merger, consolidation or purchase of all or substantially all assets) to the
Administrator; provided that such successor organization executes and delivers
to the Issuer, the Owner Trustee and the Indenture Trustee an agreement, in form
and substance reasonably satisfactory to the Owner Trustee and the Indenture
Trustee, in which such corporation or other organization agrees to be bound
hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement shall
bind any successors or assigns of the parties hereto.
Section 13. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 14. Headings. The section and subsection headings hereof have
been inserted for convenience of reference only and shall not be construed to
affect the meaning, construction or effect of this Agreement.
Section 15. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same agreement.
Section 16. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 17. Not Applicable to CITEF in Other Capacities. Nothing in
this Agreement shall affect any obligation CITEF may have in any other capacity.
Section 18. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary,
this instrument has been countersigned by Deutsche Bank Trust Company Delaware,
not in its individual capacity but solely in its capacity as Owner Trustee of
the Issuer and in no event shall Deutsche Bank Trust Company Delaware in its
individual capacity or any beneficial owner of the Issuer have any liability for
the representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, as to all of which recourse shall be had solely to the
assets of the Issuer. For all purposes of this Agreement, in the performance of
any duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of the
Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by JPMorgan Chase Bank not in its
individual capacity but
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solely as Indenture Trustee and in no event shall JPMorgan Chase Bank have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer. For all purposes of this Agreement, in the
performance of any duties or obligations of the Indenture Trustee hereunder,
JPMorgan Chase Bank shall be subject to, and entitled to the benefits of, any
terms and provisions of the Indenture which apply to or extend to the benefit of
the Indenture Trustee.
Section 19. Third-party Beneficiary. The Owner Trustee is a
third-party beneficiary to this Agreement and is entitled to the rights and
benefits hereunder and may enforce the provisions hereof as if it were a party
hereto.
Section 20. Survivability. The obligations of the Administrator
described in Section 1(a)(ii) hereof shall survive termination of this
Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
CIT EQUIPMENT COLLATERAL 2004-EF1
By: DEUTSCHE BANK TRUST COMPANY DELAWARE,
not in its individual capacity but
solely as Owner Trustee
By:
--------------------------------------
Name:
Title:
NCT FUNDING COMPANY, L.L.C., as Trust
Depositor
By:
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
By:
--------------------------------------
Name:
Title:
THE CIT GROUP/EQUIPMENT FINANCING, INC. ,
as Administrator
By:
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A
LIMITED POWER OF ATTORNEY
State of )
) SS.
County of )
KNOW ALL PERSONS BY THESE PRESENTS, that Deutsche Bank Trust Company
Delaware, not in its individual capacity but solely as owner trustee (the "Owner
Trustee") of CIT Equipment Collateral 2004-EF1, a Delaware statutory trust (the
"Trust"), by and through its duly elected and authorized officer named below, on
behalf of itself and on behalf of the Trust as Issuer under the Administration
Agreement, dated as of May 1, 2004 (the "Administration Agreement"), among the
Trust, NCT Funding Company, L.L.C., JPMorgan Chase Bank, as Indenture Trustee,
and The CIT Group/Equipment Financing, Inc., as Administrator, does hereby
nominate, constitute and appoint The CIT Group/Equipment Financing, Inc., a
Delaware corporation, each of its officers from time to time and each of its
employees authorized by it from time to time to act hereunder, jointly and each
of them severally, together or acting alone, its true and lawful
attorney-in-fact, for the Owner Trustee and the Issuer in their name, place and
▇▇▇▇▇, in the sole discretion of such attorney-in-fact, to perform such
calculations and prepare or cause the preparation by other appropriate persons
of, and to execute on behalf of the Issuer or the Owner Trustee, all such
documents, reports, filings, instruments, certificates and opinions that the
Issuer or the Owner Trustee is required to prepare, file or deliver pursuant to
the Administration Agreement, and to take any and all other action, as such
attorney-in-fact may deem necessary or desirable in accordance with the
directions of the Owner Trustee or the Issuer and in connection with its duties
as Administrator or successor Administrator under the Administration Agreement.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Administration Agreement.
The Issuer and the Owner Trustee hereby ratify and confirm the
execution, delivery and performance (whether before or after the date hereof) of
the above-mentioned documents, reports, filings, instruments, certificates and
opinions, by the attorney-in-fact and all that the attorney-in-fact shall
lawfully do or cause to be done by virtue hereof.
The Issuer and the Owner Trustee hereby agree that no person or other
entity dealing with the attorney-in-fact shall be bound to inquire into such
attorney-in-fact's power and authority hereunder and any such person or entity
shall be fully protected in relying on such power of authority.
This Limited Power of Attorney may not be assigned without the prior
written consent of the Issuer and the Owner Trustee. It is effective immediately
and will continue until it is revoked.
This Limited Power of Attorney shall be governed and construed in
accordance with the laws of the State of New York without reference to
principles of conflicts of law.
Executed as of this 1st day of May, 2004.
DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual capacity
but solely as Owner Trustee
By:
--------------------------------------
Name:
Title:
CIT EQUIPMENT COLLATERAL 2004-EF1
By: DEUTSCHE BANK TRUST COMPANY
DELAWARE, not in its individual
capacity but solely as Owner Trustee
By:
--------------------------------------
Name:
Title:
2
CERTIFICATE OF ACKNOWLEDGMENT OF
NOTARY PUBLIC
State of New York )
) SS.
County of )
On [_______________], 2004 before me,
-----------------------------------------------
[insert date] [Here insert name and title of notary]
personally appeared
--------------------------------------------------------------------------------
o personally known to me, or
o proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ties), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature [SEAL]
------------------------------------------------
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