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ADMINISTRATION AGREEMENT
among
CIT EQUIPMENT COLLATERAL 2000-2,
as Issuer,
CAPITA CORPORATION,
as Administrator
NCT FUNDING COMPANY, L.L.C.,
as Trust Depositor,
and
ALLFIRST BANK,
as Indenture Trustee
Dated as of September 1, 2000
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TABLE OF CONTENTS
Page
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Section 1. Duties of the Administrator..........................................................................2
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..........................................7
Section 9. Action upon Termination, Resignation or Removal......................................................8
Section 10. Notices.............................................................................................8
Section 11. Amendments..........................................................................................9
Section 12. Successors and Assigns.............................................................................10
Section 13. Governing Law......................................................................................10
Section 14. Headings...........................................................................................10
Section 15. Counterparts.......................................................................................11
Section 16. Severability.......................................................................................11
Section 17. Not Applicable to TCC in Other Capacities..........................................................11
Section 18. Limitation of Liability of Owner Trustee and Indenture Trustee.....................................11
Section 19. Third-party Beneficiary............................................................................11
Section 20. Survivability......................................................................................11
EXHIBIT A LIMITED POWER OF ATTORNEY..............................................................................14
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This Administration Agreement, dated as of September 1, 2000 (this
"Agreement"), is among CIT Equipment Collateral 2000-2 (the "Issuer"), Capita
Corporation (together with its successors and assigns, "TCC") in its capacity
as administrator (the "Administrator"), NCT Funding Company, L.L.C. (together
with its successors and assigns, the "Trust Depositor"), and Allfirst 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 6.64% Class A-1 Receivable-Backed Notes,
Series 2000-2, 6.81% Class A-2 Receivable-Backed Notes, Series 2000-2, 6.84%
Class A-3 Receivable-Backed Notes, Series 2000-2, 6.93% Class A-4
Receivable-Backed Notes, Series 2000-2, 6.95% Class B Receivable-Backed Notes,
Series 2000-2, 7.04% Class C Receivable-Backed Notes, Series 2000-2, and 7.52%
Class D Receivable-Backed Notes, Series 2000-2 (collectively, the "Notes")
pursuant to the Indenture, dated as of the date hereof (the "Indenture"),
between the Issuer and the Indenture Trustee (capitalized terms used herein that
are not otherwise defined shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement as defined in the Indenture);
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes and of certain beneficial ownership interests of
the Issuer, including (i) the Pooling and Servicing Agreement, (ii) the
Indenture and (iii) the other Transaction Documents to which the Issuer is a
party;
WHEREAS, pursuant to the Transaction Documents, the Issuer and the
Owner Trustee are required to perform certain duties in connection with (i) the
Notes and the Collateral therefor pledged pursuant to the Indenture and (ii) the
beneficial ownership interest in the Issuer evidenced by the Equity Certificate
(the registered holder of such interest being referred to herein as the
"Owner");
WHEREAS, the Issuer desires to have the Administrator perform certain
of the duties of the Issuer and the Owner Trustee referred to in the preceding
clause and to provide such additional services consistent with the terms of this
Agreement and the Transaction Documents as the Issuer and the Owner Trustee may
from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Duties of the Administrator.
(a) Duties with respect to the Transaction Documents.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under the
Transaction Documents. In addition, the Administrator shall consult with
the Owner Trustee regarding the duties of the Issuer or the Owner Trustee
under the Transaction Documents. The Administrator shall monitor the
performance of the Issuer and shall advise the Owner Trustee when action is
necessary to comply with the respective duties of the Issuer and the Owner
Trustee under the Transaction Documents. The Administrator shall prepare
for execution by the Issuer or shall cause the preparation by other
appropriate persons of, all such documents, reports, filings, instruments,
certificates and opinions that it shall be the duty of the Issuer or the
Owner Trustee to prepare, file or deliver pursuant to the Transaction
Documents. In furtherance of the foregoing, the Administrator shall take
all appropriate action that the Issuer or the Owner Trustee is required to
take pursuant to the Indenture including, without limitation, such of the
foregoing as are required with respect to the following matters under the
Indenture (references are to Sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the
Indenture Trustee notice of any appointment of a new Note Registrar and the
location, or change in location, of the Note Register (Section 2.04);
(B) the notification of Noteholders of the final principal payment on
their Notes (Section 2.07(b)) or indicate on the Servicer Report that the
Principal Amount is 0;
(C) the preparation of or obtaining of the documents and instruments
required for execution and authentication of the Notes and delivery of the same
to the Indenture Trustee (Section 2.02);
(D) the preparation, obtaining or filing of the instruments, opinions
and certificates and other documents required for the release of Collateral
(Section 2.12);
(E) the maintenance of an office in New York, New York, or the
appointment of the Indenture Trustee as its agent therefor, for registration of
transfer or exchange of Notes (Section 3.02);
(F) the duty to cause newly appointed Paying Agents, if any, to deliver
to the Indenture Trustee the instrument specified in the Indenture regarding
funds held in trust (Section 3.03);
(G) the direction to the Indenture Trustee to deposit monies with
Paying Agents, if any, other than the Indenture Trustee (Section 3.03);
(H) the obtaining and preservation of the Issuer's qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Indenture, the
Notes, the Collateral and each other instrument and agreement included in the
Collateral (Section 3.04);
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(I) the preparation of all supplements and amendments to the Indenture
and all financing statements, continuation statements, instruments of further
assurance and other instruments and the taking of such other action as is
necessary or advisable to protect the Collateral other than as prepared by the
Servicer (Section 3.05);
(J) the delivery of certain statements as to compliance with the
Indenture (Sections 3.09);
(K) the identification to the Indenture Trustee in an Officer's
Certificate of a Person with whom the Issuer has contracted to perform its
duties under the Indenture (Section 3.07(b));
(L) the notification of the Indenture Trustee and each Rating Agency of
a Servicer Default under the Pooling and Servicing Agreement;
(M) the preparation and obtaining of documents and instruments required
for the release of the Issuer from its obligations under the Indenture (Section
3.10(b));
(N) the monitoring of the Issuer's obligations as to the satisfaction
and discharge of the Indenture and the preparation of an Officer's Certificate
and the obtaining of the Opinion of Counsel and the Independent Certificate
relating thereto (Section 4.01);
(O) the compliance with any written directive of the Indenture Trustee
with respect to the sale of the Collateral in a commercially reasonable manner
if an Event of Default shall have occurred and be continuing (Section 5.04);
(P) the preparation and delivery of notice to Noteholders of the
removal of the Indenture Trustee and the appointment of a successor Indenture
Trustee (Section 6.08);
(Q) the preparation of any written instruments required to confirm more
fully the authority of any co-trustee or separate trustee and any written
instruments necessary in connection with the resignation or removal of the
Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and
6.10);
(R) the furnishing of the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee is not the
Note Registrar (Section 7.01);
(S) the filing of reports required by the Commission or under the TIA
(Section 7.03);
(T) the opening of one or more accounts in the Indenture Trustee's
name, the preparation and delivery of Issuer Orders, Officer's Certificates and
Opinions of Counsel and all other actions necessary with respect to investment
and reinvestment of funds in the Trust Accounts (Sections 8.02 and 8.03);
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(U) the preparation of an Issuer Request and Officer's Certificate and
the obtaining of an Opinion of Counsel and Independent Certificates, if
necessary, for the release of the Collateral (Sections 8.04 and 8.05);
(V) the preparation of Issuer Orders and the obtaining of Opinions of
Counsel with respect to the execution of supplemental indentures and the mailing
to the Noteholders of notices with respect to such supplemental indentures
(Sections 9.01, 9.02 and 9.03);
(W) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.06);
(X) the duty to notify Noteholders of redemption of the Notes or to
cause the Indenture Trustee to provide such notification (Section 10.02);
(Y) the preparation and delivery of all Officer's Certificates,
Opinions of Counsel and Independent Certificates with respect to any requests by
the Issuer to the Indenture Trustee to take any action under the Indenture
(Section 11.01(a));
(Z) the preparation and delivery of Officer's Certificates and the
obtaining of Independent Certificates, if necessary, for the release of property
from the lien of the Indenture (Section 11.01(b));
(AA) the notification of the Rating Agencies, of any merger or
consolidation involving the Issuer, the Servicer, the Owner Trustee or the
Indenture Trustee and upon the failure of the Issuer, the Owner Trustee or the
Indenture Trustee to provide notification;
(BB) the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment and notice
provisions (Section 11.06); and
(CC) the recording of the Indenture, if applicable (Section 11.14).
(ii) The Administrator will:
(A) except as otherwise expressly provided in the Indenture or the
Pooling and Servicing Agreement, pay the Indenture Trustee's fees and reimburse
the Indenture Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Indenture Trustee in
accordance with any provision of the Indenture (including the reasonable
compensation, expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its negligence
or bad faith;
(B) indemnify the Indenture Trustee and its officers, directors,
employees or agents for, and hold them harmless against, any loss, liability or
expense incurred without negligence or bad faith on their part, arising out of
or in connection with the acceptance or administration of the transactions
contemplated by the Indenture, the Pooling and Servicing Agreement, this
Agreement and the other Transaction Documents, including the reasonable costs
and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or duties
under the Indenture; and
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(C) indemnify the Owner Trustee (including in its individual capacity)
and its officers, directors, employees or agents for, and hold them harmless
against, any loss, liability or expense incurred without negligence or bad faith
on their part, arising out of or in connection with the acceptance or
administration of the transactions contemplated by the Trust Agreement and this
Agreement, including the reasonable costs and expenses of defending themselves
against any claim or liability in connection with the exercise or performance of
any of their powers or duties under the Trust Agreement (and including without
limitation, an indemnity as described above with respect to the Trust
Depositor's obligations in favor of the Owner Trustee under Section 8.02 of the
Trust Agreement).
(b) Additional Duties.
(i) In addition to the duties set forth in Section 1(a)(i), the
Administrator shall perform such calculations and shall prepare or shall cause
the preparation by other appropriate persons of, and shall execute on behalf of
the Issuer or the Owner Trustee, all such documents, reports, filings,
instruments, certificates and opinions that the Issuer or the Owner Trustee are
required to prepare, file or deliver pursuant to the Transaction Documents or
Section 5.05 or 6.02 of the Trust Agreement, and at the request of the Owner
Trustee shall take all appropriate action that the Issuer or the Owner Trustee
are required to take pursuant to the Transaction Documents. In furtherance
thereof, the Owner Trustee shall, on behalf of itself and of the Issuer, execute
and deliver to the Administrator and to each successor Administrator appointed
pursuant to the terms hereof, one or more powers of attorney substantially in
the form of Exhibit A hereto, appointing the Administrator the attorney-in-fact
of the Owner Trustee and the Issuer for the purpose of executing on behalf of
the Owner Trustee and the Issuer all such documents, reports, filings,
instruments, certificates and opinions. Subject to Section 5, and in accordance
with the directions of the Issuer, the Administrator shall administer, perform
or supervise the performance of such other activities in connection with the
Collateral (including the Transaction Documents) as are not covered by any of
the foregoing provisions and as are expressly requested by the Issuer and are
reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Transaction
Documents to the contrary, the Administrator shall be responsible for promptly
notifying the Owner Trustee in the event that any withholding tax is imposed on
the Trust's payments (or allocations of income) to the Owner as contemplated in
Section 5.04 of the Trust Agreement. Any such notice shall specify the amount of
any withholding tax required to be withheld by the Owner Trustee pursuant to
such provision.
(iii) Notwithstanding anything in this Agreement or the Transaction
Documents to the contrary, the Administrator shall be responsible for
performance of the duties of the Owner Trustee 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.
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(iv) The Administrator shall satisfy its obligations with respect to
clauses (ii) and (iii) above by retaining, at the expense of the Trust payable
by the Administrator, a firm of independent public accountants (the
"Accountants") acceptable to the Owner Trustee, which shall perform the
obligations of the Administrator thereunder.
(v) The Administrator shall perform the duties of the Administrator
specified in Section 10.02 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Owner Trustee, and any other
duties expressly required to be performed by the Administrator under the Trust
Agreement.
(vi) 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 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 clause (iv) of Section 5.04 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.
6
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.
Section 8. Term of Agreement; Resignation and Removal of Administrator.
This Agreement shall continue in force until the termination of the Trust
Agreement, upon which event this Agreement shall automatically terminate.
(a) Subject to Section 8(d) and Section 8(e), the Administrator may
resign its duties hereunder by providing the Issuer with at least sixty (60)
days' prior written notice.
(b) Subject to Section 8(d) and Section 8(e), the Issuer may remove
the Administrator without cause by providing the Administrator with at least
sixty (60) days' prior written notice.
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(c) Subject to Section 8(d) and Section 8(e), at the sole option of
the Issuer, the Administrator may be removed immediately upon written notice of
termination from the Issuer to the Administrator if any of the following events
shall occur:
(i) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default, shall
not cure such default within ten (10) days (or, if such default cannot be
cured in such time, shall not give within ten (10) days such assurance of
cure as shall be reasonably satisfactory to the Issuer); or
(ii) an Insolvency Event shall occur with respect to the
Administrator.
The Administrator agrees that if any of the events specified in clause
(ii) above shall occur, it shall give written notice thereof to the Issuer and
the Indenture Trustee within seven (7) days after the occurrence of such event.
(d) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator shall have been
appointed by the Issuer and (ii) such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
(e) The appointment of any successor Administrator shall be effective
only after the satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(f) Subject to Section 8(d) and 8(e), the Administrator acknowledges
that upon the appointment of a Successor Servicer pursuant to the Pooling and
Servicing Agreement, the Administrator shall immediately resign (subject to
Section 8(d) hereof).
Section 9. Action upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of this Agreement pursuant to Section 8
or the resignation or removal of the Administrator pursuant to Section 8(a), (b)
or (c) respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 8 deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
(a), (b) or (c), respectively, the Administrator shall cooperate with the Issuer
and take all reasonable steps requested to assist the Issuer in making an
orderly transfer of the duties of the Administrator.
Section 10. Notices. All notices, demands, certificates, requests and
communications hereunder ("notices") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or (d) on the date transmitted by
legible telecopier transmission with a confirmation of receipt, in all cases
addressed to the recipient as follows:
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(i) If to the Administrator:
Capita Corporation
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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:
Allfirst Bank
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iv) If to the Issuer or the Owner Trustee:
CIT Equipment Collateral ▇▇▇▇-▇
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, National Association
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Trust Department
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone 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
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consent of the Owner Trustee but without the consent of the Noteholders and the
Equity Certificateholder, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders or the Equity
Certificateholder; provided that such amendment will not, in the Opinion of
Counsel satisfactory to the Indenture Trustee, materially and adversely affect
the interest of any Noteholder or the Equity Certificateholder. This Agreement
may also be amended by the parties hereto with the written consent of the Owner
Trustee and the Required Holders for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of Noteholders or the Equity
Certificateholder; provided, however, that no such amendment may (i) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on the Contracts or distributions that are required to
be made for the benefit of the Noteholders or the Equity Certificateholder or
(ii) reduce the aforesaid percentage of the Noteholders and the Equity
Certificateholder which are required to consent to any such amendment, without
the consent of the Noteholders of all outstanding Notes and the Equity
Certificate. Notwithstanding the foregoing, the Administrator may not amend this
Agreement without the permission of the Trust Depositor, which permission shall
not be unreasonably withheld. Promptly after the execution of any amendment to
this Agreement, the Administrator shall furnish written notification of the
substance of such amendment, together with a copy thereof, to each Rating
Agency.
Section 12. Successors and Assigns. This Agreement may not be assigned
by the Administrator unless such assignment is previously consented to in
writing by the Issuer, the Indenture Trustee and the Owner Trustee and subject
to the satisfaction of the Rating Agency Condition in respect thereof. An
assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the assignee hereunder in the same manner as the Administrator is
bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned
by the Administrator without the consent of the Issuer or the Owner Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of all or substantially all assets) to the Administrator; provided
that such successor organization executes and delivers to the Issuer, the Owner
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.
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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 TCC in Other Capacities. Nothing in this
Agreement shall affect any obligation TCC 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 Chase Manhattan Bank USA, National
Association, not in its individual capacity but solely in its capacity as Owner
Trustee of the Issuer and in no event shall Chase Manhattan Bank USA, National
Association in its individual capacity or any beneficial owner of the Issuer
have any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder, as to all of which recourse shall be
had solely to the assets of the Issuer. For all purposes of this Agreement, in
the performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Allfirst Bank not in its individual capacity
but solely as Indenture Trustee and in no event shall Allfirst 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.
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]
11
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 2000-2
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Owner
Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------
Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
------------------------------------------------
NCT FUNDING COMPANY, L.L.C.
as Trust Depositor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------------
Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
------------------------------------------------
ALLFIRST BANK,
not in its individual capacity but solely as Indenture
Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------------
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Senior Vice President
------------------------------------------------
CAPITA CORPORATION, as Administrator
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------------
Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
-----------------------------------------------
12
EXHIBIT A
LIMITED POWER OF ATTORNEY
State of New York )
) SS.
County of )
KNOW ALL PERSONS BY THESE PRESENTS, that Chase Manhattan Bank USA,
National Association, not in its individual capacity but solely as owner trustee
(the "Owner Trustee") of CIT Equipment Collateral 2000-2, a Delaware business
trust (the "Trust"), by and through its duly elected and authorized officer
named below, on behalf of itself and on behalf of the Trust as Issuer under the
Administration Agreement, dated as of September 1, 2000 (the "Administration
Agreement"), among the Trust, NCT Funding Company, L.L.C., Allfirst Bank, as
Indenture Trustee, and Capita Corporation, as Administrator, does hereby
nominate, constitute and appoint Capita Corporation, 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.
13
Executed as of this ___ day of September, 2000.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By:___________________________________________________
Printed Name:_________________________________________
Title:________________________________________________
CIT EQUIPMENT COLLATERAL 2000-2
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Owner
Trustee
By:___________________________________________________
Printed Name:_________________________________________
Title:________________________________________________
14
CERTIFICATE OF ACKNOWLEDGMENT OF
NOTARY PUBLIC
State of New York )
) SS.
County of )
On September ___, 2000 before me,
________________________________________
[insert date] [Here insert name and title of notary]
personally appeared
_______________________________________________________________________________
personally known to me, or
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]
15