Exhibit 10.1
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ADMINISTRATION AGREEMENT
among
CIT EQUIPMENT COLLATERAL 2005-EF1
as Issuer,
THE CIT GROUP/EQUIPMENT FINANCING, INC.,
as Administrator
CIT FUNDING COMPANY, LLC,
as Depositor,
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
as Indenture Trustee
Dated as of July 1, 2005
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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............ 7
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.......................................................... 10
SECTION 14. HEADINGS............................................................... 10
SECTION 15. COUNTERPARTS........................................................... 10
SECTION 16. SEVERABILITY........................................................... 10
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................................................ 11
SECTION 20. SURVIVABILITY.......................................................... 11
EXHIBIT A LIMITED POWER OF ATTORNEY
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This Administration Agreement, dated as of July 1, 2005 (this
"Agreement"), is among CIT Equipment Collateral 2005-EF1 (the "Issuer"), The CIT
Group/Equipment Financing, Inc. (together with its successors and assigns,
"CITEF" and in its capacity as administrator, the "Administrator"), CIT Funding
Company, LLC (together with its successors and assigns, the "Depositor"), and
JPMorgan Chase Bank, National Association, 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 3.852% Class A-1 Receivable-Backed
Notes, 4.30% Class A-2 Receivable-Backed Notes, 4.42% Class A-3
Receivable-Backed Notes, Floating Rate Class A-4 Receivable-Backed Notes, 4.71%
Class B Receivable-Backed Notes, 4.78% Class C Receivable-Backed Notes, and
5.10% 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 preparation of Issuer Orders directing the
authentication of Notes (Section 2.02) and 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 indication on the Monthly
Servicer's 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 3.08(a)(F) and 3.08(b)(F));
(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 3.06(b));
(L) the notification of the Indenture Trustee and
each Rating Agency of a Servicer Default under the Pooling and Servicing
Agreement (Section 3.12);
(M) the preparation and obtaining of documents and
instruments required for the release of the Issuer from its obligations under
the Indenture (Section 3.09(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, if necessary, for the release of the Collateral (Section
8.04);
(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 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 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;
(AA) 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
(BB) 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, bad faith, or willful misconduct;
(B) 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, bad faith, or willful misconduct 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 (the indemnities provided by this section shall
include, without limitation, an
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indemnity as described above with respect to the 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 5.01, 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 5.02 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
5.05 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.
(iv) The Administrator shall satisfy its obligations
with respect to clauses (ii) and (iii) above by retaining, at the expense of the
Trust, 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
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connection with the resignation or removal of the Owner Trustee or the Delaware
Trustee, as applicable, 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 or a successor Delaware Trustee, as applicable, 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 assignment by the Note Registrar, Paying Agent
or Indenture Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
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(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 reasonable 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 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.
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(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 with or 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 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.
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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 (specifying one (1) Business Day's delivery),
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 Depositor:
CIT Funding Company, LLC
▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasury - Securitization
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) If to the Indenture Trustee:
JPMorgan Chase Bank, National Association
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Worldwide Securities Services - Global Debt
CIT Equipment Collateral 2005-EF1
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iv) If to the Issuer or the Owner Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: CIT Equipment Collateral 2005-EF1
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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 consent of the Owner Trustee but without the consent of the
Noteholders and the Equity Certificateholder; provided that such amendment will
not materially and adversely affect the interest of any Noteholder or the Equity
Certificateholder. 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.
Section 15. Counterparts. This Agreement may be executed in several
counterparts including by telefax transmission thereof (and by different parties
on separate 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
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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 The Bank of New York, not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer
and in no event shall The Bank of New York 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 which apply to
or extend to the benefit of the Owner Trustee.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by JPMorgan Chase Bank, National
Association not in its individual capacity but solely as Indenture Trustee and
in no event shall JPMorgan Chase Bank, National Association 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, National Association 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)(B) 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 2005-EF1
By: THE BANK OF NEW YORK, not in its
individual capacity but solely as Owner
Trustee
By: ---------------------------------------
Name:
Title:
CIT FUNDING COMPANY, LLC, as Depositor
By: ---------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Indenture Trustee
By: ---------------------------------------
Name:
Title:
THE CIT GROUP/EQUIPMENT FINANCING,
INC., as Administrator
By: ---------------------------------------
Name:
Title:
EXHIBIT A
LIMITED POWER OF ATTORNEY
State of )
) ss.:
County of )
KNOW ALL PERSONS BY THESE PRESENTS, that The Bank of New York, not in
its individual capacity but solely as owner trustee (the "Owner Trustee") of CIT
Equipment Collateral 2005-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 July 1, 2005 (the "Administration Agreement"), among the Trust, CIT
Funding Company, LLC, 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 and 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.
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Executed as of this ____ day of July, 2005.
THE BANK OF NEW YORK, not in its individual
capacity but solely as Owner Trustee
By: ---------------------------------------
Name:
Title:
CIT EQUIPMENT COLLATERAL 2005-EF1
By: THE BANK OF NEW YORK, not in
its individual capacity but solely
as Owner Trustee
By: ---------------------------------------
Name:
Title:
3
CERTIFICATE OF ACKNOWLEDGMENT OF
NOTARY PUBLIC
State of )
) ss.:
County of )
On [ ], 2005 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]
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