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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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F O R M 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 10, 2000
CIT Equipment Collateral 2000-1
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
000-30687 22-6846998
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(Commission File Number) (IRS Employer Identification No.)
c/o Allfirst Financial Center National Association
499 Mitchell Road - MC 101-591
Millsboro, Delaware 19966
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(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (410) 244-4626
N/A
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(Former name or former address, if changed since last report.)
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Item 2. Acquisition or Disposition of Assets.
On May 10, 2000 NCT Funding Company, L.L.C. (the "Company") sold
$288,583,600 aggregate principal amount of Class A-1 6.723024% Receivable-Backed
Notes, $144,291,800 aggregate principal amount of Class A-2a Floating
Receivable-Backed Notes, $187,959,055 aggregate principal amount of Class A-3
Floating Receivable-Backed Notes, $93,030,239 aggregate principal amount of
Class A-4 7.58% Receivable-Backed Notes, $11,391,458 aggregate principal amount
of Class B 7.54% Receivable-Backed Notes, $15,188,611 aggregate principal amount
of Class C 7.63% Receivable-Backed Notes and $18,985,762 aggregate principal
amount of Class D 8.09% Receivable-Backed Notes (the "Notes"). The Notes have
the benefit of certain funds deposited in a cash collateral account established
pursuant to a Pooling and Servicing Agreement annexed hereto as Exhibit 4.3 (the
"Pooling and Servicing Agreement"). The Notes were offered for sale to the
public pursuant to a prospectus supplement dated May 3, 2000 to the prospectus
dated July 19, 1999 (the "Prospectus").
The Notes represent obligations of the CIT Equipment Collateral 2000-1
(the "Trust"). The Trust was created pursuant to a Trust Agreement annexed
hereto as Exhibit 4.2 (the "Trust Agreement"). The Notes were issued pursuant to
an Indenture (the "Indenture")annexed hereto as Exhibit 4.1.
The property of the Trust primarily consists of a pool of commercial
contracts consisting of true leases, finance leases and loan/conditional sale
agreements for the lease/purchase of computer and telecommunication equipment,
computer software and various other equipment (the "Contracts") and certain
other property described in the Prospectus, including, without limitation,
$41,768,679 which was deposited in the cash collateral account ($9,492,882 from
the proceeds of a loan made by AT&T Capital Corporation pursuant to a Loan
Agreement annexed hereto as Exhibit 10.2, and $32,275,797 retained from the
proceeds of the sale of the Notes pursuant to the Indenture).
All of the Contracts were acquired by the Company from Newcourt
Financial USA Inc. and sold by the Company to the Trust pursuant to the Pooling
and Servicing Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
The following are filed herewith. The exhibit numbers correspond with
Item 601(b) of Regulation S-K.
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
1.1 Underwriting Agreement among NCT Funding Company, L.L.C.,
Newcourt Financial USA Inc., AT&T Capital Corporation,
and First Union Securities, Inc. on behalf of itself and as
representative of the several underwriters, dated May 3, 2000.
4.1 Indenture between the CIT Equipment Collateral 2000-1 as
Issuer and The Chase Manhattan Bank as Indenture Trustee,
dated as of April 1, 2000.
4.2 Trust Agreement between NCT Funding Company, L.L.C. as Trust
Depositor and Allfirst Financial Center National Association as
</TABLE>
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<TABLE>
<S> <C>
Owner Trustee, dated as of April 1, 2000.
4.3 Pooling and Servicing Agreement among CIT Equipment Collateral
2000-1 as Issuer, NCT Funding Company, L.L.C. as Depositor,
Newcourt Financial USA Inc. in its individual capacity,
and AT&T Capital Corporation in its individual capacity and as
Servicer, dated as of April 1, 2000.
10.1 Loan Agreement among CIT Equipment Collateral 2000-1 as the
Trust, The Chase Manhattan Bank as Indenture Trustee, NCT Funding
Company, L.L.C. as Trust Depositor, AT&T Capital Corporation in
its individual capacity and as Servicer, the lender parties
thereto from time to time, and AT&T Capital Corporation as Agent,
dated as of April 1, 2000.
10.2 Administration Agreement among CIT Equipment Collateral 2000-1 as
Issuer, AT&T Capital Corporation as Administrator, NCT Funding
Company, L.L.C. as Trust Depositor, and The Chase Manhattan Bank
as Indenture Trustee, dated as of April 1, 2000.
</TABLE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CIT EQUIPMENT COLLATERAL 2000-1
By: AT&T Capital Corporation,
as Servicer
By: /s/ Frank Garcia
-------------------------------
Name: Frank Garcia
Title: Senior Vice President
Dated: May 24, 2000
STATEMENT OF DIFFERENCES
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The section symbol shall be expressed as.................................. 'SS'
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CIT EQUIPMENT COLLATERAL 2000-1
OWNER TRUST
RECEIVABLE -BACKED NOTES
<TABLE>
<S> <C>
$288,583,600 6.723024% Receivable-Backed Notes, Class A-1
$144,291,800 Floating Rate Receivable-Backed Notes, Class A-2a
$187,959,055 Floating Rate Receivable-Backed Notes, Class A-3
$93,030,239 7.58% Receivable-Backed Notes, Class A-4
$11,391,458 7.54% Receivable-Backed Notes, Class B
$15,188,611 7.63% Receivable-Backed Notes, Class C
$18,985,762 8.09% Receivable-Backed Notes, Class D
</TABLE>
UNDERWRITING AGREEMENT
May 3, 2000
FIRST UNION SECURITIES, INC.
as Representative for the Underwriters
One First Union Center, TW-9
301 South College Street
Charlotte, North Carolina 28288-0610
Dear Sirs:
1. Introductory. NCT Funding Company, L.L.C., a Delaware limited liability
company (the "Company"), proposes, subject to the terms and conditions stated
herein, to sell to the Underwriters named in Schedule A hereto (the
"Underwriters"), for whom First Union Securities, Inc. (hereinafter "First
Union") is acting as representative (the "Representative") an aggregate of
$288,583,600 principal amount of the 6.723024% Receivable-Backed Notes, Class
A-1, $144,291,800 principal amount of the Floating Rate Receivable-Backed Notes,
Class A-2a, $187,959,055 principal amount of the Floating Rate Receivable-Backed
Notes, Class A-3, $93,030,239 principal amount of the 7.58% Receivable-Backed
Notes, Class A-4, $11,391,458 principal amount of the 7.54% Receivable-Backed
Notes, Class B, $15,188,611 principal amount of the 7.63% Receivable-Backed
Notes, Class C, and $18,985,762 principal amount of the 8.09% Receivable-Backed
Notes, Class D (collectively, the "Offered Securities"), of the CIT Equipment
Collateral 2000-1 (the "Trust"). The Trust will be created pursuant to an
Amended and Restated Trust Agreement (the "Trust Agreement") dated as of April
1, 2000, between the Company and Allfirst Financial Center National Association,
as owner trustee (the "Owner Trustee"). The Offered Securities will be issued
under an Indenture (the "Indenture") dated as of April 1, 2000 between the Trust
and The Chase Manhattan Bank, as indenture trustee (the "Indenture Trustee").
The Trust is also issuing to the Company the sole Equity Certificate (the
"Certificate") evidencing the entire beneficial equity interest in the Trust.
Before the Time of Delivery (as defined below), the Company purchased
certain of the Contracts and certain interests in the equipment related to such
Contracts (the equipment
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relating to any of the Contracts being referred to herein as the "Equipment")
from Newcourt Financial USA Inc. ("NFUSA") pursuant to the Sale and
Contribution Agreement, as amended, (the "VFC Purchase Agreement") dated as of
March 2, 1999 by and among NFUSA, AT&T and the Company and transferred the
Contracts to the Newcourt Equipment Trust--VFC Series (the "VFC Trust"). NFUSA
has previously originated or purchased such Contracts and related Equipment from
certain affiliates (the "TCC Financing Originators"). Each of the TCC Financing
Originators is a direct or indirect wholly-owned subsidiary of The CIT Group,
Inc., a Delaware corporation (hereinafter "CIT"). On or before the Time of
Delivery, the Company will reacquire the Contracts described in the preceding
sentence from the VFC Trust pursuant to a Release and Assignment (the "VFC
Assignment") dated as of May 10, 2000 between the VFC Trust and the Company. The
Company will also enter into a Substitute VFC Purchase and Sale Agreement (the
"Substitute VFC Purchase Agreement") dated as of April 1, 2000 between NFUSA and
the Company. In addition, on or before the Time of Delivery, NFUSA will purchase
certain other Contracts and Equipment from the TCC Financing Originators
pursuant to a Non-VFC Conveyancing Agreement (the "Non-VFC Conveyancing
Agreement") dated as of April 1, 2000 among the TCC Financing Originators and
NFUSA and the Company will purchase such Contracts from NFUSA pursuant to the
Non-VFC Purchase and Sale Agreement (the "Non-VFC Purchase Agreement") dated as
of April 1, 2000 between NFUSA and the Company.
The Trust will acquire a pool of equipment leases (each a "Lease Contract")
and installment sale contracts, promissory notes, loan and security agreements
and similar types of receivables (each a "Loan Contract", and collectively with
the Lease Contracts, the "Contracts"), the security interest of the Company in
Equipment securing the Loan Contracts, a security interest in the Company's
interest in the Equipment related to the Lease Contracts and certain other
rights pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), among the Company, the Trust, NFUSA and AT&T Capital
Corporation ("AT&T"), pursuant to which AT&T has agreed to service the
Contracts. In addition, one or more financial institutions (the "Cash Collateral
Depositors"), at the Time of Delivery, will enter into a loan agreement (the
"Loan Agreement") pursuant to which the Cash Collateral Depositors and the Trust
will deposit $41,768,679 (the "Initial Deposit") into the Cash Collateral
Account at the Time of Delivery. As used herein, the term "Related Documents"
means the Trust Agreement, the Offered Securities, the Indenture, the Pooling
and Servicing Agreement, the VFC Purchase Agreement, the VFC Assignment, the
Substitute VFC Purchase Agreement, the Non-VFC Conveyancing Agreement, the
Non-VFC Purchase Agreement, the Loan Agreement, and the Letter of
Representations among the Trust, the Indenture Trustee and The Depository Trust
Company.
Capitalized terms used herein without definition shall have the meanings
set forth in the Indenture or the Pooling and Servicing Agreement.
2. Representations and Warranties of the Company, NFUSA and AT&T. Each of the
Company, NFUSA and AT&T, jointly and severally, represents and warrants to, and
agrees with, each of the Underwriters that:
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(a) The Trust, the Company and the Offered Securities meet the requirements for
use of Form S-3 under the Securities Act of 1933, as amended (the "Act"); the
Company has filed with the Securities and Exchange Commission (the "Commission")
a registration statement on Form S-3 (No. 333-74847), including the related
preliminary prospectus or prospectuses, relating to the Offered Securities and
the offering thereof from time to time in accordance with Rule 415 under the
Act. Such registration statement, as amended, has been declared effective by the
Commission, and the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"). The Company will prepare and
file with the Commission a prospectus supplement (together with any later dated
prospectus supplement relating to the Offered Securities, the "Prospectus
Supplement") specifically relating to the Offered Securities pursuant to Rule
424 under the Act. The registration statement as amended at the date hereof is
hereinafter referred to as the "Registration Statement". The term "Base
Prospectus" means the prospectus dated July 19, 1999 relating to all offerings
of securities under the Registration Statement. The term "Prospectus" means the
Base Prospectus together with the Prospectus Supplement. The term "Preliminary
Prospectus" means any preliminary prospectus supplement specifically relating to
the Offered Securities, together with the Base Prospectus. As used herein, the
terms "Registration Statement", "Prospectus", "Base Prospectus" and "Preliminary
Prospectus" shall include in each case the documents, if any, incorporated by
reference therein. If the Company has filed an abbreviated registration
statement to register additional debt securities pursuant to Rule 462(b) under
the Act (the "Rule 462(b) Registration Statement"), then any reference herein to
the term "Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement. For purposes of this Agreement, all references to the
Registration Statement, any Preliminary Prospectus or the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
electronically transmitted copy thereof filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR"). All
references in this Agreement to financial statements and schedules and other
information that is "contained", "included" or "stated" in the Registration
Statement, any Preliminary Prospectus or the Prospectus (or other references of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information that is incorporated by reference in the
Registration Statement, any Preliminary Prospectus or the Prospectus, as the
case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to mean and include the filing of any document with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that is incorporated by reference in the Registration
Statement, such Preliminary Prospectus or the Prospectus, as the case may be;
(b) No stop order preventing or suspending the effectiveness or use of the
Registration Statement or the Prospectus has been issued by the Commission and
no proceeding for that purpose has been initiated or, to the knowledge of the
Company, threatened by the Commission. The Registration Statement conforms, and
the Prospectus and any further amendments to supplements to the Registration
Statement or the Prospectus will conform, in all material respects to the
requirements of the Act, and the rules and regulations of the Commission
thereunder, and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the
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circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with written information
furnished to the Company by any Underwriter specifically for use therein, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the following information in the Prospectus Supplement
furnished on behalf of such Underwriter: the concession and reallowance figures
appearing in the third paragraph under the caption "PLAN OF DISTRIBUTION" and
the information contained in the fifth paragraph under the caption "PLAN OF
DISTRIBUTION" (collectively, the "Provided Information"). In addition, the
statements in "Description of the Notes and Indenture" in the Prospectus, to the
extent they constitute a summary of the Notes, the Indenture and the Pooling and
Servicing Agreement, constitute a fair and accurate summary thereof.
(c) The documents incorporated or deemed to be incorporated by reference in the
Prospectus, when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in the Provided Information;
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change, or any
development involving a prospective change, in or affecting the Company, AT&T,
NFUSA, the TCC Financing Originators, CIT or the Trust (other than as
contemplated in the Registration Statement or the Prospectus) which would be
expected to have a material adverse effect on either (1) the ability of such
person to consummate the transactions contemplated by, or to perform its
respective obligations under, this Agreement or any of the Related Documents to
which it is a party or (2) the Contracts or the Trust Estate (as defined in the
Trust Agreement) considered in the aggregate;
(e) The Company has been duly formed and is validly existing as a limited
liability company in good standing under the laws of Delaware; AT&T has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of Delaware; NFUSA has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the Delaware; each
of the TCC Financing Originators has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation; each of the Company, NFUSA and AT&T has the power and
authority (corporate and/or other) to own its properties and conduct its
business to the extent described in the Prospectus and to
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perform its obligations under this Agreement and the Related Documents to
which it is a party; each of the TCC Financing Originators has the power and
authority (corporate and/or other) to own its properties and conduct its
business to the extent described in the Prospectus; and each of the Company,
NFUSA, AT&T and the TCC Financing Originators has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction;
(f) As of the Time of Delivery, each consent, approval, authorization or order
of, or filing with, any court or governmental agency or body that is required to
be obtained or made by the Company, NFUSA, AT&T, the Trust and each of the TCC
Financing Originators or their subsidiaries for the consummation of the
transactions contemplated by this Agreement and the Related Documents shall have
been obtained or made, except for such consents, approvals, authorizations,
registrations or qualifications as may be required under Blue Sky laws, except
for the UCC Filings, which shall be made promptly and in any event not later
than 10 calendar days after the Time of Delivery;
(g) Any taxes, fees and other governmental charges that are assessed and due
from the Company, NFUSA or AT&T in connection with the execution, delivery and
issuance of this Agreement and each Related Document shall have been paid or
will be paid at or prior to the Time of Delivery to the extent then due;
(h) This Agreement has been duly authorized, executed and delivered by the
Company, NFUSA and AT&T and constitutes a legal, valid and binding agreement of
the Company, NFUSA and AT&T enforceable in accordance with its terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors and (ii) general principles of equity,
whether enforcement is sought in a proceeding in equity or at law;
(i) The Offered Securities have been duly and validly authorized by the Trust
and, when issued pursuant to the Indenture and delivered pursuant to this
Agreement, will have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Trust, enforceable
in accordance with their terms, and entitled to the benefits provided by the
Indenture under which they are to be issued, which Indenture will be
substantially in the form filed as an exhibit to the Registration Statement; the
Indenture has been duly authorized and duly qualified under the Trust Indenture
Act and, assuming the due authorization, execution and delivery thereof by the
other parties thereto, the Indenture will constitute a valid and legally binding
instrument of the Trust, enforceable in accordance with its terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors and (ii) general principles of equity,
whether enforcement is sought in a proceeding in equity or at law; assuming
the due authorization, execution and delivery thereof by the other parties
thereto, each of the other Related Documents will constitute a valid and
legally binding obligation of the Company, NFUSA and AT&T, as applicable,
enforceable in
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accordance with its terms, except as enforceability may be limited by
(i) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the
rights of creditors and (ii) general principles of equity, whether enforcement
is sought in a proceeding in equity or at law; the execution, delivery
and performance by the Company, AT&T, NFUSA and the Trust of the
Related Documents to which they are a party and the consummation of the
transactions contemplated thereby have been duly and validly authorized by all
necessary action and proceedings required of them; and the Offered Securities,
the Indenture, the Pooling and Servicing Agreement, the Purchase Agreement, the
Trust Agreement, the Swap Agreement and the other Related Documents will conform
in all material respects to the descriptions thereof in the Prospectus;
(j) The issue of the Offered Securities by the Trust and sale of the Offered
Securities by the Company hereunder and the compliance by the Trust, the
Company, NFUSA and AT&T with all of the provisions of this Agreement, and the
compliance by the Trust, the Company, AT&T and NFUSA with all of the provisions
of all of the Related Documents to which they are parties and the consummation
of the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Trust, the Company,
NFUSA or AT&T is a party (except with respect to the notifications and consents
required under certain of the Contracts described in paragraph (m) in the
definition of Eligible Contract in Section 1.01 of the Pooling and Servicing
Agreement, which will be given or obtained no later than 10 days after the Time
of Delivery to the extent described in subsection 5(j) hereof or will otherwise
be repurchased as provided in the Purchase Agreement) or by which the Trust, the
Company, AT&T, NFUSA or the TCC Financing Originators or any of their
subsidiaries is bound or to which any of the property or assets of the Trust,
the Company, AT&T, NFUSA or the TCC Financing Originators is subject, nor will
such action result in any violation of the provisions of the Certificate of
Incorporation, Articles of Organization or By-laws of the Company, AT&T, NFUSA
or the TCC Financing Originators or the Trust or any statute or any order, rule
or regulation of any court or governmental agency or body having jurisdiction
over the Trust, the Company, NFUSA, AT&T or the TCC Financing Originators or any
of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or, governmental agency
or body is required to be obtained by any of them for the issue of the Offered
Securities by the Trust and the sale of the Offered Securities by the Company or
the consummation by the Trust, the Company, AT&T or NFUSA of the transactions
contemplated by this Agreement or the Related Documents, except the registration
under the Act of the Offered Securities, such is have been obtained under the
Trust Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under state or foreign securities or Blue
Sky laws in connection with the purchase and distribution of the Offered
Securities by the Underwriters;
(k) There are no legal or governmental proceedings to which the Company, AT&T,
NFUSA, the Trust or any of the TCC Financing Originators is a party or of which
any property of the Company, AT&T, NFUSA, the Trust or any of the TCC Financing
Originators is the subject (i) asserting the invalidity of this Agreement, the
Offered Securities or any other Related Documents, (ii) seeking to prevent the
issuance of the Offered Securities or the consummation of
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any of the transactions contemplated by this Agreement or any Related
Document, (iii) which is reasonably expected to materially and adversely affect
the performance by the Company, AT&T, NFUSA or the Trust, of their respective
obligations under, or the validity or enforceability of, this Agreement, the
Offered Securities or the other Related Documents, as applicable, (iv) seeking
to affect adversely the federal income tax attributes of the Offered Securities
described in the Prospectus or (v) which is reasonably expected to, individually
or in the aggregate, have a material adverse effect on the Company, AT&T, NFUSA,
the Trust or such Originator; and, to the best of the Company's, AT&T's, and
NFUSA's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(l) The Company, AT&T, NFUSA and each of the TCC Financing Originators are not
in violation of their respective Certificate of Incorporation, Articles of
Organization or By-laws and the Trust is not in violation of the Trust
Agreement, and neither the Company, NFUSA, AT&T, the Trust nor any of the TCC
Financing Originators is in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound;
(m) Each of the Company and the Trust is not and, after giving effect to the
offering and sale of the Offered Securities and other transaction contemplated
hereby, will not be, an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(n) As of the Cut-off Date, the computer tape of the Contracts made available to
the Representative by AT&T, NFUSA, the TCC Financing Originators and the Company
was accurate in all material respects;
(o) No selection procedures adverse to the holders of the Offered Securities
were utilized (i) in selecting those contracts transferred by (x) the TCC
Financing Originators to NFUSA, (y) from NFUSA to the Company and (z) from the
VFC Trust to the Company from those lease and loan contracts available therefor
or (ii) in selecting those contracts transferred by the Company to the Trust
from those lease and loan contracts available therefor;
(p) The Company or DFS-SPV L.P. owns the Equipment relating to the Contracts
free and clear of any lien, charge or encumbrance (other than Permitted Liens
with respect to the Company or Newcourt DFS Inc.'s lien which is fully
subordinated to the rights of the Trust's security interest in the Equipment)
and subject to the rights of the related obligors. Upon execution and delivery
of the VFC Assignment and the Non-VFC Purchase Agreement and the consummation of
the transactions thereunder, the Company will acquire the Contracts and the
related Equipment, free and clear of any lien, charge or encumbrance other than
Permitted Liens, and subject to the rights of the related obligors; and, upon
execution and delivery of the Pooling and Servicing Agreement, the Trust will
acquire the Contracts, free and clear of any lien, charge or encumbrance (other
than as contemplated by the Related Documents), but subject to the rights of the
related obligors;
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(q) As of the date hereof and as of the Time of Delivery, NFUSA is not obligated
to repurchase Contracts constituting a material portion of the Contract Pool
Principal Balance (as defined in the Indenture);
(r) As of the date hereof, the Company is wholly owned by NFUSA;
(s) In accordance with General Accepted Accounting Principles, as currently in
effect, each party to the VFC Purchase Agreement, the VFC Assignment, the
Substitute VFC Purchase Agreement, and the Non-VFC Purchase Agreement will treat
the transactions contemplated by such agreements as a sale of the Contracts and
interests in the related Equipment to the Company, and the Company will treat
the transactions contemplated by the Pooling and Servicing Agreement as a sale
of the Contracts to the Trust;
(t) AT&T represents and warrants that it has made available to the Underwriters
copies of CIT's 1999 consolidated financial statements for the year ended
December 31, 1999 and CIT's balance sheet and statements of income and retained
earnings for the period ended March 31, 2000 as filed with the SEC. Except as
set forth in or contemplated in the Registration Statement and the Prospectus or
as described by CIT or AT&T in SEC filings or press releases of general
distribution, copies of which have been delivered to you, there has been no
material adverse change in the condition (financial or otherwise) of AT&T since
March 31, 2000;
(u) Any taxes, fees and other governmental charges arising from the execution
and delivery by NFUSA, the Company or AT&T of this Agreement, the Pooling and
Servicing Agreement, the Trust Agreement and the Indenture and in connection
with the execution, delivery and issuance of the Offered Securities and with the
transfer of the Contracts and the Equipment, have been paid or will be paid by
the Company prior to the Closing Date; and
(v) KMPG LLP is an independent public accountant with respect to AT&T, NFUSA and
the Company within the meaning of the Act and the rules and regulations
promulgated thereunder.
All representations, warranties and agreements made herein shall be deemed
made is of the date hereof and as of the Time of Delivery; provided, however,
that to the extent any representation or warranty relates to a specific date,
such representation and warranty shall be deemed to continue to relate to such
date.
3. Sale and Delivery to the Underwriters; Closing. Subject to the terms and
conditions herein set forth, the Company agrees to cause the Trust to issue the
Offered Securities and the Company agrees to sell to each of the Underwriters,
severally and not jointly, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, the principal amount of Offered
Securities set forth opposite the name of such Underwriter, and at the purchase
price set forth, in Schedule A hereto.
The Offered Securities will be represented initially by one or more
definitive global certificates in registered form which will be deposited by or
on behalf of the Company with The Depository Trust Company ("DTC") or, on DTC's
behalf, with DTC's designated nominee or custodian and duly endorsed to DTC or
in blank by an effective endorsement. The
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Company will transfer the Offered Securities in book-entry form to the
Representative, for the account of each Underwriter, against payment by the
Representative (by or on behalf of each such Underwriter or otherwise) of the
purchase price therefor by wire transfer payable to the order of the Company in
federal (same day) funds (to such account or accounts as the Company shall
designate), by causing DTC to credit the Offered Securities to the account of
the Representative at DTC. The Company will cause the global certificates
referred to above to be made available to the Representative for checking at
least 24 hours prior to the Time of Delivery at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be 9:00 a.m., New York City time, on May 10, 2000 or
such other time and date as the Representative and the Company may agree upon in
writing. Such time and date are herein called the "Time of Delivery".
The documents to be delivered at Time of Delivery by or on behalf of the
parties hereto pursuant to Section 6 hereof, including the cross receipt for the
Offered Securities and any additional documents requested by the Underwriters
pursuant to Section 6(t) hereof, will be delivered at the offices of Schulte
Roth & Zabel LLP, 900 Third Avenue, New York, New York 10022 (the "Closing
Location"), and the Offered Securities will be delivered at the Designated
Office, all at the Time of Delivery. A meeting will be held at the Closing
Location at 10:00 a.m., New York time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
4. Offering by Underwriters. It is understood that upon the authorization
by the Representative of the release of the Offered Securities, the Underwriters
propose and agree to offer the Offered Securities for sale upon the terms and
conditions set forth in the Prospectus.
(a) Each of the Underwriters agrees that if it is a foreign broker or
dealer not eligible for membership in the National Association of Securities
Dealers, Inc. (the "NASD"), it will not effect any transaction in the Offered
Securities within the United States or induce or attempt to induce the purchase
of or sale of the Offered Securities within the United States, except that you
shall be permitted to make sales to the other Underwriters or to their United
States affiliates; provided that such sales are made in compliance with an
exemption of certain foreign brokers or dealers under Rule 15a-6 under the
Exchange Act, and in conformity with the Rules of Fair Practice of the NASD as
such rules apply to non-NASD brokers or dealers.
5. Certain Agreements of the Company, NFUSA and AT&T. The Company, NFUSA
and AT&T, jointly and severally, agree with each of the Underwriters that:
(a) The Company will prepare the Prospectus in a form approved by the
Representative (which approval will not be unreasonably withheld) and will file
such Prospectus pursuant to Rule 424(b) under the Act not later than the date
required by Rule 424; make no further amendment or any supplement to the
Registration Statement (including any post-effective
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amendment and any filing under Rule 462(b) under the Act) or Prospectus
prior to the Time of Delivery which shall be reasonably disapproved by the
Representative promptly after reasonable notice thereof; will advise the
Representative, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed and to
furnish you with copies thereof; will file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
(or behalf of the Trust) or the Trust with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Offered Securities; to advise the
Representative, promptly after it receives notice thereof of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
the Prospectus, of the suspension of the qualification of the Offered Securities
for offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of the Prospectus or suspending
any such qualification, will promptly use its best efforts to obtain the
withdrawal of such order.
(b) The Company will promptly from time to time take such action as the
Representative may reasonably request to qualify the Offered Securities for
offering and sale under the securities laws of such states as the Representative
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such states for as long as may be necessary to
complete the distribution of the Offered Securities, provided that in connection
therewith the Company or the Trust shall not be required to qualify as a foreign
corporation or entity or to file a general consent to service of process in any
state,
(c) The Company will furnish the Underwriters with copies of the Prospectus in
such quantities as the Underwriters may from time to time reasonably request,
and, if the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Offered Securities and if at such
time any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Act or the Exchange Act or the Trust Indenture Act,
will notify the Representative and promptly will file such document which will
correct such statement or omission and will prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as you may
from time to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Offered Securities at any time nine months
or more after the time of issue of the Prospectus, upon the Representative'
request will, at the Company's expense,
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prepare and deliver to such Underwriter as many copies as such Underwriter
may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act.
(d) The Company will cause the Trust to comply with the periodic reporting
requirements under the Exchange Act.
(e) During the period beginning from the date hereof and continuing to and
including the later of the Time of Delivery or the termination of the syndicate,
which shall in no event exceed 30 days from the Time of Delivery, neither the
Company, NFUSA, AT&T nor the TCC Financing Originators will offer, sell,
contract to sell or otherwise dispose of, except as provided hereunder, any
securities secured by or evidencing interests in receivables similar to the
Contracts.
(f) So long as any Offered Securities shall be outstanding, the Company will
deliver or cause to be delivered to the Representative the annual statement as
to compliance and the annual statement of a firm of independent public
accountants required to be delivered to the Indenture Trustee pursuant to
Sections 3.10 and 3.11 of the Pooling and Servicing Agreement, as soon as such
statements are furnished to the Company.
(g) The Company will furnish such information, execute such instruments and take
such actions, if any, as the Representative may reasonably request in connection
with the filing with the NASD relating to the Offered Securities should the
Representative determine that such filing is required or appropriate.
(h) So long as any of the Offered Securities are outstanding, the Company will
furnish or cause the Trust to furnish to the Representative as soon as
practicable (i) all documents required to be distributed to be holders of the
Offered Securities or filed with the Commission pursuant to the Exchange Act or
any order of the Commission thereunder, (ii) all monthly reports required to be
delivered to or filed with the Owner Trustee or the Indenture Trustee, (iii) all
notices or requests to or from the Rating Agencies with respect to the Offered
Securities that have been delivered to or received by the Company or the Trust
and (iv) from time to time, any other publicly available information concerning
the Company or the Trust filed with any government or regulatory authority, as
the Representative may reasonably request.
(i) At the Time of Delivery, the electronic ledger used by AT&T as a master
record of the Contracts conveyed by NFUSA to the Company, conveyed by the VFC
Trust to the Company and by the Company to the Trust shall be marked in such a
manner as shall clearly indicate the Trust's absolute ownership of the
Contracts, and from and after the Time to Delivery, neither the Company, AT&T,
NFUSA, the TCC Financing Originators nor any of their affiliates shall take any
action inconsistent with the Trust's ownership of such Contracts, other than as
permitted by the Pooling and Servicing Agreement.
(j) No later than 10 days after the Time of Delivery, NFUSA and AT&T will
deliver to the Representative a written certification that all notifications and
consents required by paragraph (m) in the definition of "Eligible Contract" in
Section 1.01 of the Pooling and Servicing Agreement have been given, or
obtained, as applicable, or if not given or obtained within such
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period, the related Contract has been repurchased pursuant to the terms of
the Purchase Agreement.
(k) To the extent, if any, that the rating provided with respect to the Offered
Securities by any of the Rating Agencies that initially rate the Offered
Securities is conditional upon the furnishing of documents or the taking of any
other reasonable actions by the Trust, the Company, the TCC Financing
Originators, NFUSA or AT&T, the Company, NFUSA, AT&T and the TCC Financing
Originators will use their best efforts to furnish, as soon as practicable, such
documents and take (or cause the taking of) any such other actions.
(l) The Company will cause the Trust to use the net proceeds received by it from
the issuance of the Offered Securities in the manner specified in the Prospectus
under the caption "USE OF PROCEEDS."
(m) The Company, NFUSA and AT&T will pay or cause to be paid the following: (i)
the reasonable fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Offered Securities under
the Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Related Document, the Blue Sky
Memoranda, closing documents (including compilations thereof) and any other
documents in connection with the offer, purchase, sale and delivery of the
Offered Securities; (iii) all expenses in connection with the qualification of
the Offered Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the reasonable fees and disbursements
of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and Legal Investment surveys; (iv) the filing fee
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with the review by the National Association of
Securities Dealers, Inc. of the Offered Securities; (v) any fees charged by the
Rating Agencies for rating the Offered Securities and the loans made pursuant to
the Loan Agreement; (vi) the up-front fees and expenses of the Indenture Trustee
and Owner Trustee and any agent of the Indenture Trustee and Owner Trustee and
the reasonable up-front fees and disbursements of counsel for the Indenture
Trustee and Owner Trustee in connection with the Indenture and the Offered
Securities; (vii) the costs and expenses of the Company, NFUSA and AT&T relating
to investor presentations on any "road show" undertaken in connection with the
marketing of' the offering, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with road show presentations with the prior
written approval of the Company, NFUSA and AT&T, reasonable travel and lodging
expenses of Representative and officers of the Company, NFUSA and AT&T and any
such consultants, and the cost of any aircraft chartered in connection with the
road show, with the prior written consent of the Company; and (viii) all other
reasonable costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section and Sections 7
and 8 hereof, their Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, securities transfer taxes on resale of any
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of the Offered Securities by them, and any advertising expenses connected with
any offers they may make.
6. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters hereunder shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the
Company, NFUSA and AT&T herein are, at and as of the Time of Delivery, true and
correct (except to the extent that any representation or warranty relates to a
specific date, in which case such representation or warranty shall be deemed to
continue to relate to such date), the condition that the Company, NFUSA and AT&T
shall have performed all of their respective obligations hereunder theretofore
to be performed, and the following additional conditions precedent:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the rules
and regulations under the Act and in accordance with Section 5(a) hereof; no
stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to the Representative's reasonable satisfaction;
(b) Winston & Strawn, counsel for the Underwriters, shall have furnished to the
Underwriters such opinion or opinions, dated the Time of Delivery, with respect
to certain securities law issues and other related matters as the Representative
may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to based upon such
matters;
(c) The Underwriters shall have received (i) from Schulte Roth & Zabel LLP,
opinions in respect of "true sale", "nonconsolidation" and the validity of the
Related Documents, in form and substance reasonably satisfactory to them or
letters authorizing the Underwriters to rely upon such opinions and (ii) letters
authorizing the Underwriters to rely upon any other opinion or opinions
delivered by counsel or certificates delivered by any party to any of the Rating
Agencies in connection with the transactions contemplated by this Agreement and
the Related Documents;
(d) Schulte Roth & Zabel LLP, counsel for the Company, shall have furnished to
the Underwriters their opinions, dated the Time of Delivery, in form and
substance as the opinions attached hereto as Exhibit A and reasonably
satisfactory to the Representative;
(e) The Underwriters shall have received from Schulte Roth & Zabel LLP opinions
in respect of tax matters in form and substance reasonably satisfactory to them;
(f) Thacher, Proffitt & Wood, counsel for the Indenture Trustee, shall have
furnished to the Underwriters their opinion, dated the Time of Delivery, in form
and substance satisfactory to the Representative, substantially to the effect
that:
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(i) The Indenture Trustee has been duly incorporated and is validly
existing and in good standing as a banking corporation under the laws of
the State of New York, with full power and authority to execute and deliver
the Related Documents to which it is a party and perform its obligations
thereunder;
(ii) No consent, approval or authorization of, or registration, declaration
or filing with, any federal or State of New York, court or governmental
agency or body is required for the execution, delivery or performance by
the Indenture Trustee of the Related Documents to which it is a party;
(iii) The execution and delivery of the Related Documents to which it is a
party by the Indenture Trustee and the performance by the Indenture Trustee
of the respective terms thereof do not conflict with or result in a
violation of (A) any federal or State of New York, law or regulation
governing the banking or trust powers of the Indenture Trustee and (B) the
charter documents or By-laws of the Indenture Trustee;
(iv) To the best of such counsel's knowledge, there are no actions
proceedings or investigations pending or threatened against or affecting
the Indenture Trustee before or by any court, arbitrator, administrative
agency or other governmental authority which, if adversely decided, would
materially and adversely affect the ability of the Indenture Trustee carry
out the transactions contemplated in the Related Documents to which it is a
party;
(v) The Related Documents to which it is a party have been duly authorized,
executed and delivered by the Indenture Trustee and, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitute the legal, valid and binding agreement of the Indenture Trustee,
enforceable against the Indenture Trustee in accordance with its terms,
except as enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar laws
affecting the enforcement of the rights of creditors and (ii) general
principles of equity, whether enforcement is sought in a proceeding in
equity or at law; and
(vi) The Offered Securities have been duly authenticated and delivered by
the Indenture Trustee in accordance with the Indenture.
(g) Morris, James, Hitchens & Williams LLP, counsel for the Owner Trustee, and
in-house counsel to the Owner Trustee shall have furnished to the Underwriters
their opinions, dated the Time of Delivery, in form and substance satisfactory
to the Representative, substantially to the effect that:
(i) The Owner Trustee has been duly chartered and is validly existing in
good standing as a national banking association under the laws of the
United States of America;
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(ii) The Owner Trustee has full corporate trust power and authority to
enter into and perform its obligations under the Trust Agreement and, on
behalf of the Trust, under the Related Documents to which the Trust is a
party;
(iii) The execution and delivery of the Trust Agreement and, on behalf of
the Trust, of the Related Document to which the Trust is a party, and the
performance by the Owner Trustee of its obligations under the Trust
Agreement, and the Related Documents to which the Trust is a party have
been duly authorized by all necessary corporate action of the Owner Trustee
and each has been duly executed and delivered by the Owner Trustee;
(iv) The Related Documents to which the Trust is a party constitute valid
and blinding agreements of the Owner Trustee, enforceable against the Owner
Trustee in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights and
general equity principles;
(v) The execution and delivery by the Owner Trustee of the Trust Agreement
and, on behalf of the Trust, of the Related Documents to which the Trust is
a party do not require any consent, approval or authorization of, or any
registration or filing with, any New York or federal governmental authority
having jurisdiction over the trust power of the Owner Trustee, other than
those consents, approvals or authorizations as have been obtained and the
filing of the Certificate of Trust with the Secretary of State of the State
of Delaware;
(vi) The Offered Securities have been duly authorized, executed and issued
by the Owner Trustee, on behalf of the Trust; and
(vii) The execution and delivery by the Owner Trustee of the Trust
Agreement and, on behalf of the Trust, the related Documents to which the
Trust is a party, and the performance by the Owner Trustee of its
obligations thereunder do not conflict with, result in breach or violation
of or constitute a default under, the Articles of Incorporation or By-laws
of the Owner Trustee.
(h) (i) On the date of the Prospectus, (ii) at 9:30 a.m., New York City time, on
the effective date of any post-effective amendment to the Registration Statement
filed subsequent to the date of this Agreement and (iii) at the Time of
Delivery, KMPG LLP shall have furnished to the Representative a letter or
letters, dated the respective dates of delivery thereof, in form and substance
satisfactory to the Representative, containing statements and information of the
type customarily included in accountants' "agreed-upon procedures letters" to
underwriters in transactions of this nature, including a statement by each to
the effect that KMPG LLP is an independent public accountant with respect to the
Trust, the Company, the TCC Financing Originators, NFUSA, AT&T and CIT, as
defined in the Act and the rules and regulations of the Commission thereunder;
(i) Subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall not have been any change,
or any development
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involving a prospective change, in or affecting the Company, AT&T, NFUSA,
CIT, the TCC Financing Originators or the Trust (other than as contemplated in
the Registration Statement) which, in the reasonable judgment of the
Representative, would be expected to have an effect on either (a) the ability to
such person to consummate the transactions contemplated by, or to perform its
respective obligations under, this Agreement or any of the Related Documents to
which it is a party or (b) the Contracts or the Trust Estate, that, in either
case, is so material and adverse a to make it impractical or inadvisable to
proceed with the offering or the delivery of the Offered Securities as
contemplated by the Registration Statement and the Prospectus (and any
supplements thereto);
(j) [reserved];
(k) At the Time of Delivery, (i) the Class A-1 Notes shall be rated by each of
Standard & Poor's Ratings Services ("S&P"), Moody's Investors Service, Inc.
("Moody's") A-1+ and P-1, respectively; (ii) the Class A-2a Notes shall be rated
at least A-1 by S&P and P-1 by Moody's; (iii) the Class A-3 Notes and the Class
A-4 Notes shall be rated at least AAA by S&P and Aaa by Moody's; (iv) the Class
B Notes shall be rated at least "AA" by S&P and "Aa3" by Moody's; (v) the Class
C Notes shall be rated at least "A" by S&P and "A2" by Moody's; and (vi) the
Class D Notes shall be rated at least "BBB" by S&P and "Baa3" by Moody's;
(l) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities; or (iii) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or
war, if the effect of any such event specified in this clause (iii) in the
judgment of the Representative makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Offered Securities on the terms
and in the manner contemplated in the Prospectus;
(m) Each of the Company and NFUSA shall have delivered to the Representative a
certificate, dated the Time of Delivery, signed by its Chairman of the Board,
President, Executive Vice President, Senior Vice President, Vice President,
principal financial officer, principal accounting officer, or treasurer to the
effect that the signer of such certificate has examined this Agreement, the
Pooling and Servicing Agreement, the Indenture, the Swap Agreement, the Loan
Agreement, the Prospectus (and any supplements thereto), the Registration
Statement, and the other Related Documents and that:
(i) the representations and warranties of the Company or NFUSA, as
applicable, in this Agreement are true and correct at and as of the Time of
Delivery as if made on and as of the Time of Delivery (except to the extent
they expressly relate to an earlier date, in which case the representations
and warranties of such party are true and correct as of such earlier date
as if made at the Time of Delivery);
(ii) the Company or NFUSA, as applicable, has complied with all the
agreements and satisfied all the material conditions on its part to be
performed or satisfied under this Agreement at or prior to the Time of
Delivery;
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(iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the signer, threatened;
(iv) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change,
or any development involving a prospective change, in or affecting the
Company, NFUSA, AT&T, the TCC Financing Originators or the Trust (other
than as contemplated in the Registration Statement) which would be expected
to have a material adverse effect on either (1) the ability of such person
to consummate the transactions contemplated by, or to perform its
respective obligations under, this Agreement or any of the Related
Documents to which it is a party or (2) the Contracts or the Trust Estate
(taken as a group);
(v) as of the Time of Delivery, no Contracts constituting a material
portion of the Contract Pool Principal Balance constitute Ineligible
Contracts; and
(vi) as to such other matters as the Representative may reasonably request.
(n) NFUSA shall have delivered to the Underwriters a certificate, dated the Time
of Delivery, signed by its Chairman of the Board, President, Executive Vice
President, Senior Vice President, Vice President, principal financial officer,
principal accounting officer, or treasurer to the effect that the signer of such
certificate has examined the Purchase Agreement and the VFC Purchase Agreement
and that:
(i) as of the Time of Delivery, no Contracts sold by NFUSA to the Company
constitutes an Ineligible Contract;
(ii) the representations and warranties of NFUSA in the Purchase Agreement
are true and correct at and as of the Time of Delivery as if made on and as
of the Time of Delivery (except to the extent they expressly relate to an
earlier date, in which case the representations and warranties of such
party are true and correct as of such certain date as if made at the Time
of Delivery); and
(iii) as to such other matters as the Representative may reasonably
request.
(o) The Company shall have delivered to the Representative a copy, certified by
an officer of the Company, of the Registration Statement as initially filed with
the Commission and of all amendments thereto (including all exhibits) and full
and complete sets of all written comments of the Commission or its staff and all
written responses thereto with respect to the Registration Statement;
(p) The Company, AT&T, NFUSA, the Owner Trustee, the Indenture Trustee and the
Trust shall have executed and delivered each Related Document and the Agreement
to which it is a party and the VFC Trust shall have executed and delivered the
VFC Assignment;
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(q) The Underwriters shall have received copies of all UCC searches as Winston &
Strawn shall reasonably request and within 10 days after the Time of Delivery,
copies of UCC Financing Statements and any other evidence of the taking of any
other action in all jurisdictions necessary to protect and perfect the ownership
and security interests of NFUSA, the Company, the Trust and the Indenture
Trustee in the Contracts and the Equipment;
(r) The Loan Agreement shall have been duly authorized, executed and delivered
by each party thereto; on or prior to the Time of Delivery, the Indenture
Trustee shall have established the Cash Collateral Account pursuant to Section
7.01 of the Pooling and Servicing Agreement and the Cash Collateral Depositors
and the Company shall have deposited the Initial Deposit in the Cash Collateral
Account; and all fees due and payable to the Cash Collateral Depositors as of
the Time of Delivery shall have been paid in full on or prior to the Time of
Delivery;
(s) The Underwriters shall have received from in-house counsel for each of the
Cash Collateral Depositors, and any U.S. branch thereof, if any, through which
such Cash Collateral Depositor is performing its obligations under the Loan
Agreement, reasonably acceptable to the Representative, an opinion, dated the
Time of Delivery, in form and substance reasonably satisfactory to the
Representative, substantially to the effect that:
(i) each of such Cash Collateral Depositor and U.S. branch, if applicable,
is duly organized and validly existing under the laws of its country or
state of organization and has the power and authority under the laws of its
country or state of organization to execute, deliver, and perform its
obligations under the Loan Agreement;
(ii) the Loan Agreement has been duly authorized and, when executed and
delivered by such Cash Collateral Depositor, or such Cash Collateral
Depositor through a U.S. branch thereof, if applicable, will constitute the
valid and legally binding obligation of such Cash Collateral Depositor
enforceable in accordance with its terms, subject, as to enforcement, to
(A) bankruptcy, insolvency, reorganization, liquidation, readjustment of
debt and other laws and equitable principles relating to or affecting the
enforcement of creditors' rights generally as they may be applied in the
event of the bankruptcy, insolvency, reorganization, liquidation or
readjustment of debt of, or the appointment of a receiver with respect to
the property of, or a similar event applicable to, the Cash Collateral
Depositor and U.S. branch, if applicable, and (B) the effect of any
moratorium or similar occurrence affecting the Cash Collateral Depositor
and U.S. branch, if applicable;
(iii) the Loan Agreement is enforceable in accordance with its terms
against such Cash Collateral Depositor and U.S. branch, if applicable,
subject, as to enforcement, to (A) bankruptcy, insolvency, reorganization,
liquidation, readjustment of debt and other laws and equitable principles
relating to or affecting the enforcement of creditors' rights generally as
they may be applied in the event of the bankruptcy, insolvency,
reorganization, liquidation or readjustment of debt of, or the appointment
of a receiver with respect to the property of, or a similar event
applicable to, such Cash Collateral
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Depositor and U.S. branch, if applicable, and (B) the effect of any
moratorium or similar occurrence affecting such Cash Collateral Depositor
or U.S. branch, if applicable;
(iv) no authorization, consent or approval of or by any governmental
authority in its country of organization or in the United States, as
applicable, is necessary for the execution, delivery and performance by
such Cash Collateral Depositor or U.S. branch, if applicable, of the Loan
Agreement, except such authorizations, consents and approvals as are in
full force and effect;
(v) if the Cash Collateral Depositor is organized outside of the United
States, the choice of the law of the State of New York to govern the Loan
Agreement is valid under the laws of its country of organization, and a
court in such country would uphold such choice of law in a suit, action or
other proceeding on the Loan Agreement brought in a court in such country;
and
(vi) if the Cash Collateral Depositor is organized outside of the United
States, any judgment for a fixed and definite sum of money rendered by the
courts of the State of New York or the United States of America located in
the State of New York, in respect of any suit, action or other proceeding
for the enforcement of the Loan Agreement will, upon request, be declared
valid and enforceable against such Cash Collateral Depositor by the
competent courts of its country of organization, without reexamination of
the matters adjudicated upon, if such judgment is not subject to appeal and
is enforceable according to the laws of the State of New York or United
States Federal law; and
(t) The Underwriters and Winston & Strawn shall have received such information,
certificates and documents as the Underwriters or Winston & Strawn may
reasonably request.
7. Indemnification and Contribution. The Company, NFUSA and AT&T, jointly and
severally, will indemnify and hold harmless each Underwriter, its partners,
directors and officers and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Act, from and against any and all
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or any such controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein in the light of the circumstances under which they were
made not misleading, and will promptly reimburse each Underwriter, their
respective directors and officers and each person who controls the Underwriter
within the meaning of Section 15 of the Act, for any legal or other expenses
reasonably incurred by any Underwriter and such other indemnified persons in
connection with investigating, preparing or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
(i) that the Company, NFUSA and AT&T shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in the
-19-
<PAGE>
Registration Statement or the Prospectus in reliance upon and in conformity
with the Provided Information and provided further that such Provided
Information was not based upon Company-Provided Information (as defined below);
(ii) such indemnity with regard to any related prospectus shall not inure to the
benefit of each Underwriter (or any person controlling each Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Offered Securities if such person did not receive a copy of the Prospectus
(or, in the event it is amended or supplement, such Prospectus as amended or
supplemented) at or prior to the confirmation of the sale of such Offered
Securities to such person if such Prospectus (or, in the event it is amended or
supplemented, such Prospectus as amended or supplemented) was timely forwarded
to each Underwriter as required by this Agreement; and (iii) the Company, NFUSA
and AT&T shall not, in connection with any one such action or separate but
substantially similar or related transactions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys for all
such Underwriters, which firm shall be designated in accordance with Section
7(c) hereof. The foregoing indemnity agreement is in addition to any liability
which each of the Company, NFUSA and AT&T may otherwise have to the Underwriters
or any person who controls such Underwriter.
(a) Each Underwriter will severally and not jointly indemnify and hold harmless
the Company, NFUSA and AT&T, their respective directors and officers and each
person, if any who controls the Company, NFUSA or AT&T, as the case may be,
within the meaning of Section 15 of the Act, against any losses, claims, damages
or liabilities to which the Company, NFUSA or AT&T may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein in the light of the circumstances under
which they were made not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement or the Prospectus in
reliance upon and in conformity with the Provided Information and provided that
such Provided Information was not based upon Company--Provided Information (as
defined herein); and will reimburse the Company, NFUSA and AT&T, their
respective directors and officers and each person who controls the Company,
NFUSA or AT&T within the meaning of Section 15 of the Act, for any legal or
other expenses reasonably incurred by the Company, NFUSA, AT&T and such other
indemnified persons in connection with investigating, preparing or defending any
such loss, claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which may
otherwise have to each of the Company, NFUSA and AT&T as such expenses are
incurred.
(b) Promptly after receipt by an indemnified party under subsection (a) or (b)
above of notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying party
under such subsection, notify the indemnifying party, in writing of the claim
or commencement thereof; but the omission so to notify the indemnifying
-20-
<PAGE>
pary shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who may
be counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof
and after acceptance by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised in writing (with a copy to the indemnifying party) by counsel that
representation of such indemnified party and the indemnifying party is
inappropriate under applicable standards of professional conduct due to actual
or potential differing interests between them, the indemnified party or parties
shall have the right to select separate counsel to defend such action on behalf
of such indemnified party or parties. It is understood that the indemnifying
party shall, in connection with any such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys together with appropriate local
counsel at any time from all indemnified parties not having actual or potential
differing interests with any other indemnified party. The indemnifying party
will not be liable for any settlement entered into without its consent and will
not be liable to such indemnified party under this Section 7 for any legal or
other expenses incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence, (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and provided that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii).
(c) Each Underwriter severally agrees, assuming all Company-Provided Information
(defined below) is accurate and complete in all material respects, to indemnify
and hold harmless the Company, NFUSA and AT&T, and their respective directors,
officers and controlling persons within the meaning of Section 15 of the Act,
against any and all losses, claims, damages or liabilities, joint or several, to
which they may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement of a material fact contained in the
Derived Information provided by such Underwriter, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by him, her or it in connection with investigating or defending or
preparing to defend any such loss,
-21-
<PAGE>
claim, damage, liability or action as such expenses are incurred, provided
that, in no event shall any Underwriter be responsible under this clause (d) for
any amount in excess of the underwriting discount applicable to the Offered
Securities purchased by such Underwriter hereunder. Each Underwriter's
obligations under this Section 7(d) shall be in addition to any liability which
each Underwriter may otherwise have to the Company, NFUSA or AT&T.
(d) Each of the Company, NFUSA and AT&T agrees to indemnify and hold harmless
the Underwriters, each of the Underwriters' officers and directors and each
person who controls the Underwriters within the meaning of Section 15 of the Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement of a material fact contained in the
Company-Provided Information provided by the Company, NFUSA and AT&T, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by him, her or it in connection with
investigating or defending or preparing to defend any such loss, claim, damage,
liability or action as such expenses are incurred. The Company's, NFUSA's and
AT&T's obligation under this Section 7(e) shall be in addition to any liability
which they may otherwise have to the Underwriters.
The procedures set forth in Section 7(c) shall be equally applicable to
Sections 7(d) and 7(e).
(e) For purposes of this Section 7, the term "Derived Information" means such
portion, if any, of the information delivered to the Company, NFUSA or AT&T by
the Underwriters for filing with the Commission that:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference;
(ii) does not constitute Company-Provided Information; and
(iii) is of the type of information defined as Collateral Term Sheets,
Structural Term Sheets or Computational Materials (as such terms are
interpreted in the No-Action Letters).
"Company-Provided Information" means any computer tape furnished to the
Underwriters by the Company, AT&T or NFUSA concerning the Contracts or any other
information furnished by the Company, AT&T or NFUSA to the Underwriters that is
relied on or is reasonably anticipated by the parties hereto to be relied on by
the Underwriters in the course of the Underwriters' preparation of its Derived
Information or the Provided Information.
The terms "Collateral Term Sheet" and "Structural Term Sheet"
shall have the respective meanings assigned to them in the February 13, 1995
letter (the "PSA Letter") of Cleary, Gottlieb, Steen & Hamilton on behalf of the
Public Securities Association (which letter,
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<PAGE>
and the SEC staff's response thereto, were publicly available February 17,
1995). The term "Collateral Term Sheet" as used herein includes any subsequent
Collateral Term Sheet that reflects a substantive change in the information
presented. The term "Computational Materials" has the meaning assigned to it in
the May 17, 1994 letter (the "Kidder Letter" and together with the PSA Letter,
the "No-Action Letters") of Brown & Wood on behalf of Kidder, Peabody & Co.,
Inc, (which letter, and the SEC staff's response thereto, were publicly
available May 20, 1994).
(f) If the indemnification provided for in this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company, NFUSA and AT&T on the one hand and the
Underwriters on the other from the offering of the Offered Securities. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company, NFUSA and AT&T on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company, NFUSA and AT&T on
the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Offered Securities
purchased under this Agreement (before deducting expenses) received by the
Company, NFUSA and AT&T bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Offered Securities purchased
under this Agreement, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, NFUSA or AT&T on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent it such statement or omission.
The Company, NFUSA, AT&T and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subsection (g) were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to above in this subsection (g).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this subsection (g) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating, preparing or defending any such action or claim. Notwithstanding
the provisions of this subsection (g), no Underwriter shall be required to
contribute any amount in excess of the underwriting discount as set forth on the
cover page of the Prospectus paid to the respective Underwriter. No person
guilty of fraudulent misrepresentation (within the meaning of
-23-
<PAGE>
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (g) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(g) The obligations of the Company, NFUSA and AT&T under this Section 7 shall be
in addition to any liability which the Company, NFUSA and AT&T may otherwise
have and shall extend, upon the same term and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 7 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company,
NFUSA or AT&T who has signed the Registration Statement and to each person, if
any, who controls the Company, NFUSA or AT&T within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in their
obligations to purchase Offered Securities hereunder at the Time of Delivery and
the aggregate principal amount of Offered Securities (determined on a class by
class basis) that such defaulting Underwriter or Underwriters agreed but failed
to purchase does not exceed 10% of the total principal amount of Offered
Securities (determined on a class by class basis) that the Underwriters are
obligated to purchase at such Time of Delivery, the Representative may make
arrangements satisfactory to the Company for the purchase of the Offered
Securities (determined on a class by class basis) by other persons, including
any of the Underwriters, but if no such arrangements are made by such Time of
Delivery, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities (determined on a class by class basis) that such defaulting
Underwriter or Underwriters agreed but failed to purchase on such Time of
Delivery. If any Underwriter or Underwriters so default and the aggregate
principal amount of Offered Securities (determined on a class by class basis)
with respect to which such default or defaults occur exceed 10% of the total
principal amount of Offered Securities (determined on a class by class basis
that the Underwriters are obligated to purchase at such Time of Delivery and
arrangements satisfactory to the Representative and the Company for the purchase
of such Offered Securities by other persons are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company, except as provided, in Section 9
hereof. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
In the event of any such default which does not result in a termination of
this Agreement, any of the non-defaulting Underwriters or the Company shall have
the right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required change in the Registration Statement or Prospectus
or in any other documents or arrangements.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warrants and other statements of the
Company, NFUSA, AT&T and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
-24-
<PAGE>
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
NFUSA or AT&T, or any officer or director or controlling person of the Company,
NFUSA or AT&T, and shall survive delivery of and payment for the Offered
Securities.
If this Agreement is terminated pursuant to Section 8 or if for any reason
the purchase of the Offered Securities by the Underwriters is not consummated,
the Company shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 5(n), and the respective obligations of the Company
and the Underwriters pursuant to Section 7 shall remain in effect, and if any
Offered Securities have been purchased hereunder, the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8, the Company will reimburse the Underwriters
through the Representative for all out-of-pocket expenses approved in writing by
the Representative, including reasonable fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Offered Securities, but the Company shall then be under
no further liability to any Underwriter except as provided in Sections 5(m) and
7 hereof.
10. Notices. All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to you as the Representative in care of First Union
Securities, Inc., One First Union Center, TW-9, 301 South College Street,
Charlotte, North Carolina 28288-0610, Attention: Investment Banking
Department--- Transactions Advisory Group; if to the Company shall be delivered
or sent by mail, telex or facsimile transmission to the address of the Company
set forth in the Registration Statement, Attention: Secretary; and if to NFUSA,
the Company or AT&T shall be delivered or sent by mail, telex or facsimile
transmission to The CIT Group, 650 CIT Drive, Livingston, New Jersey 07039,
Attention: Securitization -- Treasury; provided, however, that any notice to an
Underwriter pursuant to Section 7(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representative upon request. Any
such statements, requests, notices or agreements shall take effect at the time
of receipt thereof.
11. Termination.
(a) This Agreement may be terminated by you in your absolute discretion at any
time upon the giving of notice at any time prior to the Closing Date: (i) if
there has been any material adverse change in the condition, financial or
otherwise, of the Company, NFUSA or AT&T, or in the earnings, business affairs
or business prospects of the Company, NFUSA or AT&T, whether or not arising in
the ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your reasonable
judgment, impracticable to market the Offered Securities or enforce contracts
for the sale of the Offered Securities, or (iii) if trading generally on either
the American Stock Exchange or the New York Stock Exchange has been
-25-
<PAGE>
suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
exchanges or by order of the Commission or any other governmental authority, or
(iv) if a banking moratorium has been declared by either federal or New York
authorities. In the event of any such termination, no party will have any
liability to any other party hereto, except as otherwise provided in Section 7
hereof.
(b) This Agreement may not be terminated by the Company, NFUSA or AT&T without
the written consent of the Underwriters, except in accordance with law.
(c) Notwithstanding anything herein to the contrary, in the event the Company,
NFUSA or AT&T does not perform any obligation under this Agreement or any
representation and warranty hereunder is incomplete or inaccurate in any
material respect, this Agreement and all of the Underwriters' obligations
hereunder may be immediately cancelled by the Underwriters by notice thereof to
the Company, NFUSA or AT&T. Any such cancellation shall be without liability of
any party to any other party except that the provisions of Sections 7 and 9
hereof shall survive any such cancellation.
12. Successors. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, NFUSA and AT&T and, to the extent
provided in Sections 7 and 8 hereof, the officers and directors of the Company,
NFUSA and AT&T and each person who controls the Company, NFUSA and AT&T or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Offered Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
13. Representation of Underwriters. In all dealings hereunder, you shall act on
behalf of each of the Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by you.
14. Time of the Essence. Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
15. Counterparts. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
16. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
The Company, NFUSA and AT&T hereby submit to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.
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<PAGE>
17. Miscellaneous. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us one for each of the Company, NFUSA and AT&T and for each of the
Underwriters plus one for each counsel counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof shall constitute a binding agreement between each of the
Underwriters, NFUSA, AT&T, and the Company.
Very truly yours,
NCT FUNDING COMPANY, L.L.C.
By: /s/ Glenn Votek
---------------------------------------
Name: Glenn Votek
Title: Executive Vice President
and Treasurer
NEWCOURT FINANCIAL USA INC.
By: /s/ Glenn Votek
---------------------------------------
Name: Glenn Votek
Title: Executive Vice President
and Treasurer
AT&T CAPITAL CORPORATION
By: /s/ Glenn Votek
---------------------------------------
Name: Glenn Votek
Title: Executive Vice President
and Treasurer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the date
first above written.
- --------------------------------------------
AS REPRESENTATIVE OF THE UNDERWRITERS
By: FIRST UNION SECURITIES, INC.
By: /s/ Mark T. Adamson
----------------------------------
Authorized Representative -- Vice President
[Signature Page to Underwriting Agreement]
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<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Total Aggregate Principal Amount of
Underwriter Offered Securities to be Purchased
- ----------- ----------------------------------
Class A-1 Class A-3 Class A-4
--------- --------- ---------
<S> <C> <C> <C>
First Union Securities, Inc................... $86,575,080 $56,387,717 $27,909,072
Banc One Capital Markets, Inc................. 63,488,392 41,350,992 20,466,653
Credit Suisse First Boston Corporation........ 75,031,736 48,869,354 24,187,862
J. P. Morgan Securities Inc................... 63,488,392 41,350,992 20,466,653
Total $288,583,600 $187,959,055 $93,030,239
</TABLE>
<TABLE>
<CAPTION>
Total Aggregate Principal Amount of
Underwriter Offered Securities to be Purchased
- ----------- ----------------------------------
Class A-2a Class B Class C Class D
---------- --------- --------- ---------
<S> <C> <C> <C> <C>
First Union Securities, Inc.................... $144,291,800 $11,391,458 $15,188,611 $18,985,762
Total
</TABLE>
<TABLE>
<CAPTION>
Purchase Price to Public
(as a percentage of
the principal amount of
each class of Offered Securities)*
<S> <C>
Class A-1: 0.100%
Class A-2a: 0.100%
Class A-3: 0.200%
Class A-4: 0.240%
Class B: 0.250%
Class C: 0.300%
Class D: 0.400%
</TABLE>
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<PAGE>
CIT EQUIPMENT COLLATERAL 2000-1,
as Issuer,
and
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely in its capacity
as Indenture Trustee
-----------------------------------
INDENTURE
Dated as of April 1, 2000
-----------------------------------
$288,583,600 6.723024% Class A-1 Receivable-Backed Notes
$144,291,800 Floating Rate Class A-2a Receivable-Backed Notes
$144,291,800 Floating Rate Class A-2b Receivable-Backed Notes
$187,959,055 Floating Rate Class A-3 Receivable-Backed Notes
$93,030,239 7.58% Class A-4 Receivable-Backed Notes
$11,391,458 7.54% Class B Receivable-Backed Notes
$15,188,611 7.63% Class C Receivable-Backed Notes
$18,985,762 8.09% Class D Receivable-Backed Notes
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE.....................................................2
Section 1.01 Definitions..............................................................................2
Section 1.02 Incorporation by Reference of Trust Indenture Act........................................8
Section 1.03 Rules of Construction....................................................................9
ARTICLE TWO THE NOTES ....................................................................................10
Section 2.01 Form ...................................................................................10
Section 2.02 Execution, Authentication and Delivery..................................................10
Section 2.03 Temporary Notes.........................................................................11
Section 2.04 Registration; Registration of Transfer and Exchange; Transfer Restriction...............11
Section 2.05 Mutilated, Destroyed, Lost or Stolen Notes..............................................13
Section 2.06 Persons Deemed Owner....................................................................14
Section 2.07 Payment of Principal and Interest; Defaulted Interest...................................14
Section 2.08 Cancellation............................................................................15
Section 2.09 Book-Entry Notes........................................................................16
Section 2.10 Notices to Clearing Agency..............................................................17
Section 2.11 Definitive Notes........................................................................17
Section 2.12 Release of Collateral...................................................................17
Section 2.13 Tax Treatment...........................................................................17
Section 2.14 Additional Class A-2b Notes.............................................................18
ARTICLE THREE COVENANTS; REPRESENTATIONS AND WARRANTIES...................................................19
Section 3.01 Payment of Principal and Interest.......................................................19
Section 3.02 Maintenance of Office or Agency.........................................................19
Section 3.03 Money for Payments to be Held in Trust..................................................19
Section 3.04 Existence...............................................................................21
Section 3.05 Protection of Collateral................................................................21
Section 3.06 [Reserved]..............................................................................22
Section 3.07 Performance of Obligations; Servicing of Contracts......................................22
Section 3.08 Negative Covenants......................................................................23
Section 3.09 Issuer May Consolidate, etc. Only on Certain Terms......................................23
Section 3.10 Successor or Transferee.................................................................25
Section 3.11 No Other Business.......................................................................25
Section 3.12 No Borrowing............................................................................25
Section 3.13 Notice of Events of Default.............................................................25
Section 3.14 Further Instruments and Acts............................................................26
Section 3.15 Compliance with Laws....................................................................26
Section 3.16 Amendments of Trust Agreement...........................................................26
Section 3.17 Removal of Administrator................................................................26
Section 3.18 Representations and Warranties of Issuer................................................26
</TABLE>
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<TABLE>
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Section 3.19 Enforcement of Class A-2 Swap Agreement and Class A-3
Swap Agreement........................................................................27
ARTICLE FOUR SATISFACTION AND DISCHARGE...................................................................28
Section 4.01 Satisfaction and Discharge of Indenture.................................................28
Section 4.02 Application of Trust Money..............................................................29
Section 4.03 Repayment of Moneys Held by Paying Agent................................................29
Section 4.04 Release of Collateral...................................................................29
ARTICLE FIVE REMEDIES ....................................................................................30
Section 5.01 Events of Default.......................................................................30
Section 5.02 Rights Upon Event of Default; Notice....................................................31
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee;
Authority of Indenture Trustee.....................................................31
Section 5.04 Remedies................................................................................34
Section 5.05 Optional Preservation of the Contracts..................................................34
Section 5.06 Priorities..............................................................................35
Section 5.07 Limitation of Suits.....................................................................35
Section 5.08 Unconditional Rights of Noteholders to Receive Principal and Interest...................36
Section 5.09 Restoration of Rights and Remedies......................................................36
Section 5.10 Rights and Remedies Cumulative..........................................................36
Section 5.11 Delay or Omission Not a Waiver..........................................................36
Section 5.12 Control by Noteholders..................................................................36
Section 5.13 Waiver of Past Defaults.................................................................37
Section 5.14 Undertaking for Costs...................................................................37
Section 5.15 Waiver of Stay or Extension Laws........................................................37
Section 5.16 Action on Notes.........................................................................38
Section 5.17 Performance and Enforcement of Certain Obligations......................................38
Section 5.18. Class A-2a Events of Default...........................................................38
ARTICLE SIX THE INDENTURE TRUSTEE.........................................................................40
Section 6.01 Duties of Indenture Trustee.............................................................40
Section 6.02 Rights of Indenture Trustee.............................................................41
Section 6.03 Individual Rights of Indenture Trustee..................................................42
Section 6.04 Indenture Trustee's Disclaimer..........................................................42
Section 6.05 Notice of Defaults......................................................................43
Section 6.06 Reports by Indenture Trustee to Holders.................................................43
Section 6.07 Compensation and Indemnity..............................................................43
Section 6.08 Replacement of Indenture Trustee........................................................44
Section 6.09 Successor Indenture Trustee by Merger...................................................45
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee.......................45
Section 6.11 Eligibility.............................................................................47
Section 6.12 Preferential Collection of Claims Against Issuer........................................47
Section 6.13 Representations and Warranties of Indenture Trustee.....................................47
</TABLE>
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<TABLE>
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Section 6.14 Execution of Transaction Documents......................................................48
ARTICLE SEVEN NOTEHOLDERS' LISTS AND REPORTS..............................................................49
Section 7.01 Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders..................49
Section 7.02 Preservation of Information: Communication to Noteholders...............................49
Section 7.03 Reports by Issuer.......................................................................49
Section 7.04 Reports by Indenture Trustee............................................................50
ARTICLE EIGHT ACCOUNTS, DISBURSEMENTS AND RELEASES........................................................51
Section 8.01 Collection of Money.....................................................................51
Section 8.02 Trust Accounts..........................................................................51
Section 8.03 General Provisions Regarding Accounts...................................................53
Section 8.04 Release of Collateral...................................................................54
Section 8.05 Opinion of Counsel......................................................................54
ARTICLE NINE SUPPLEMENTAL INDENTURES......................................................................56
Section 9.01 Supplemental Indentures Without Consent of Noteholders..................................56
Section 9.02 Supplemental Indentures With Consent of Noteholders.....................................57
Section 9.03 Execution of Supplemental Indentures....................................................59
Section 9.04 Effect of Supplemental Indenture........................................................59
Section 9.05 Conformity With Trust Indenture Act.....................................................59
Section 9.06 Reference in Notes to Supplemental Indentures...........................................59
ARTICLE TEN REDEMPTION AND OPTIONAL PURCHASE OF NOTES.....................................................60
Section 10.01 Redemption.............................................................................60
Section 10.02 Form of Redemption Notice..............................................................60
Section 10.03 Notes Payable on Redemption Date.......................................................61
Section 10.04 Optional Purchase of Class D Notes by Depositor........................................61
Section 10.05 Form of Purchase Notice................................................................61
Section 10.06 Class D Notes to be Purchased on Purchase Date.........................................62
ARTICLE ELEVEN MISCELLANEOUS..............................................................................64
Section 11.01 Compliance Certificates and Opinions, etc..............................................64
Section 11.02 Form of Documents Delivered to Indenture Trustee.......................................65
Section 11.03 Acts of Noteholders....................................................................66
Section 11.04 Notices................................................................................67
Section 11.05 Notices to Noteholders; Waiver.........................................................67
Section 11.06 Alternate Payment and Notice Provisions................................................68
Section 11.07 Effect of Headings and Table of Contents...............................................68
Section 11.08 Successors and Assigns.................................................................68
Section 11.09 Separability...........................................................................68
Section 11.10 Benefits of Indenture..................................................................68
Section 11.11 Legal Holidays.........................................................................68
Section 11.12 Governing Law..........................................................................68
Section 11.13 Counterparts...........................................................................68
</TABLE>
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<TABLE>
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Section 11.14 Recording of Indenture.................................................................69
Section 11.15 Trust Obligation.......................................................................69
Section 11.16 No Petition............................................................................69
Section 11.17 Inspection.............................................................................69
Section 11.18 Conflict with Trust Indenture Act......................................................70
Section 11.19 Communication by Noteholders With Other Noteholders....................................70
Section 11.20 Amendment of Cash Collateral Account Agreement.........................................70
Section 11.21 Amendment of Class A-2 Swap Agreement..................................................71
Section 11.22 Amendment of Class A-3 Swap Agreement..................................................71
EXHIBITS
Exhibit A-1 Form of Class A-1 Note...............................................................A-1-1
Exhibit A-2a Form of Class A-2a Note.............................................................A-2a-1
Exhibit A-2b Form of Class A-2b Note.............................................................A-2b-1
Exhibit A-3 Form of Class A-3 Note...............................................................A-3-1
Exhibit A-4 Form of Class A-4 Note...............................................................A-4-1
Exhibit B Form of Class B Note...................................................................B-1
Exhibit C Form of Class C Note...................................................................C-1
Exhibit D Form of Class D Note...................................................................D-1
Exhibit E RESERVED...............................................................................E-1
Exhibit F Form of Note Assignment................................................................F-1
Exhibit G Form of Note Depository Agreement......................................................G-1
Exhibit H Form of Class A-2b Note Transferee Letter..............................................H-1
</TABLE>
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CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
Trust Indenture
Act of 1939 Indenture
Section Section
- ------- ---------
<S> <C>
310(a) 6.11
310(b) 6.11
310(c) N.A.
311(a) 6.12
311(b) 6.12
311(c) N.A.
312(a) 7.01, 7.02
312(b) 7.02
312(c) 7.02
313(a) 7.04
313(b) 7.04
313(c) 7.04
314(a) 7.03
314(b) 3.05, 7.03
314(c) 11.01
314(d) 11.01
314(e) 11.01
314(f) N.A.
315(a) 6.01
315(b) 6.05
315(c) 6.01
315(d) 6.01
315(e) 5.14
316(a) 2.07, 5.04
316(b) 9.02
316(c) N.A.
317(a) 5.03
317(b) 3.03
318(a) 11.18
</TABLE>
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<PAGE>
This Indenture, dated as of April 1, 2000 (this "Indenture"), is between
CIT Equipment Collateral 2000-1, a Delaware business trust (the `"Issuer") and
The Chase Manhattan Bank, in its capacity as indenture trustee (the "Indenture
Trustee") and not in its individual capacity.
Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the Holders of the Issuer's 6.723024% Class A-1
Receivable-Backed Notes (the "Class A-1 Notes"), Floating Rate Class A-2a
Receivable-Backed Notes (the "Class A-2a Notes"), Floating Rate Class A-2b
Receivable-Backed Notes (the "Class A-2b Notes" and, together with the Class
A-2a Notes, the "Class A-2 Notes"), Floating Rate Class A-3 Receivable-Backed
Notes (the "Class A-3 Notes"), 7.58% Class A-4 Receivable-Backed Notes (the
"Class A-4 Notes"), 7.54% Class B Receivable-Backed Notes (the "Class B Notes"),
7.63% Class C Receivable-Backed Notes (the "Class C Notes"), and 8.09% Class D
Receivable-Backed Notes (the "Class D Notes"); and, together with the Class A-1
Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, Class B Notes, Class C
Notes and Class D Notes, the "Notes"):
GRANTING CLAUSE
The Issuer hereby grants, transfers, assigns and otherwise conveys to the
Indenture Trustee on the Closing Date, on behalf of and for the benefit of the
Holders of the Notes, without recourse, all of the Issuer's right, title and
interest in and to (i) the Contracts and the related Transferred Assets, (ii)
all general intangibles, accounts and chattel paper, (iii) the rights of the
Issuer under the Pooling and Servicing Agreement, (iv) the Class A Principal
Account, the Class A-2a Funding Account, the Collection Account, the Note
Distribution Account, the Cash Collateral Account and any other security or
deposit account maintained by the Issuer with the Indenture Trustee or any
Qualified Institution, including, without limitation, all cash and cash
equivalents, investment property, Financial Assets, Security Entitlements, or
other Eligible Investments and all other securities and other assets now or
hereafter deposited in or credited to any such account, and all income from the
investment of the funds in such accounts, together with any successor or
replacement accounts, (v) all Security Entitlements of the Issuer in any and all
of the foregoing, and (vi) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in respect of any
or all of the foregoing, including, without limitation, all proceeds of the
conversion of any of the foregoing, voluntary or involuntary, into cash or other
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any and all
proceeds of the foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of principal of
and interest on, and any other amounts owing in respect of, the Notes, equally
and ratably without prejudice, priority or distinction and all other sums owing
by the Issuer hereunder or under any other Transaction Document, and to secure
compliance with the provisions of this Indenture, all as provided in this
Indenture.
<PAGE>
The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the
Notes, acknowledges such Grant, accepts the trust under this Indenture in
accordance with the provisions of this Indenture and agrees to perform its
duties required in this Indenture to the best of its ability to the end that the
interests of the Holders of the Notes may be adequately and effectively
protected.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions
(a) Except as otherwise specified herein or as the context may otherwise
require, the following terms have the respective meanings set forth below for
all purposes of this Indenture.
"Act" shall have the meaning specified in Section 11.03(a).
"Administration Agreement" means the Administration Agreement, dated as of
the date hereof, among the Administrator, the Issuer, the Trust Depositor and
the Indenture Trustee.
"Administrator" means AT&T Capital Corporation or any successor
Administrator under the Administration Agreement.
"Authorized Officer" means, with respect to the Issuer, any officer of the
Owner Trustee who is authorized to act for the Owner Trustee in matters relating
to the Issuer and who is identified on the list of Authorized Officers delivered
by the Owner Trustee to the Indenture Trustee on the Closing Date (as such list
may be modified or supplemented from time to time thereafter) and, so long as
the Administration Agreement is in effect, any Vice President or more senior
officer of the Administrator who is authorized to act for the Administrator in
matters relating to the Issuer and to be acted upon by the Administrator
pursuant to the Administration Agreement and who is identified on the list of
Authorized Officers delivered by the Administrator to the Indenture Trustee on
the Closing Date (as such list may be modified or supplemented from time to time
thereafter).
"Book Entry Notes" means a beneficial interest in the Notes, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 2.09.
"Business Day" means any day other than a Saturday, Sunday or other day on
which banking institutions in the cities of Livingston, New Jersey, or New York,
New York are authorized or obligated by law, executive order or governmental
decree to be closed.
"Class" means all Notes whose form is identical except for variation in
denomination, principal amount or owner.
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"Class A-2a Event of Default" shall have the meaning specified in Section
5.01(b).
"Class A-2a Shortfall" shall have the meaning specified in Section 8.02(g).
"Class A-2b Note Transferee Letter" shall have the meaning specified in
Section 2.04.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Collateral" means the Collateral as defined in the Granting Clause hereof.
"Corporate Trust Office" means the principal office of the Indenture
Trustee at which at any particular time its corporate trust business shall be
administered which office at date of the execution of this Indenture is located
at Capital Markets Fiduciary Services, 450 West 33rd Street, 14th Floor, New
York, New York 10001-2697; or at such other address as the Indenture Trustee may
designate from time to time by notice to the Noteholders and the Issuer, or the
principal corporate trust office of any successor Indenture Trustee (the address
of which the successor Indenture Trustee will notify the Noteholders and the
Issuer).
"Default" means any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default.
"Definitive Notes" shall have the meaning specified in Section 2.09.
"DTC" means The Depository Trust Company, and its successors.
"Eligible Deposit Account" means either (a) a segregated account with a
Qualified Institution, or (b) a segregated trust account with the corporate
trust department of a depository institution organized under the laws of the
United States or any one of the states thereof, including the District of
Columbia (or any domestic branch of a foreign bank), and acting as a trustee for
funds deposited in such account, so long as any of the securities of such
depository institution shall have a credit rating from each Rating Agency in one
of its short-term credit rating categories which signifies investment grade.
"Entitlement Order" has the meaning specified in Section 8-102(a)(8) of the
UCC.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" shall have the meaning specified in Section 5.01.
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"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
Executive Vice President, any Vice President, the Secretary or the Treasurer of
such corporation; and with respect to any partnership, any general partner
thereof.
"Financial" means Newcourt Financial USA Inc., a Delaware corporation.
"Financial Asset" has the meaning specified in Section 8-102(a)(9) of the
UCC.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create and grant a lien upon and a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to this Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the granting party or otherwise and generally to do
and receive anything that the granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Holder" means, with respect to a Book-Entry Note, the Person who is the
owner of such Book-Entry Note, as reflected on the books of the Clearing Agency,
or on the books of a Person maintaining an account with such Clearing Agency
(directly as a Clearing Agency participant or as an indirect participant, in
each case in accordance with the rules of such Clearing Agency) and with respect
to a Definitive Note the Person in whose name a Note is registered on the Note
Register.
"Indenture Securities" means the Notes.
"Indenture Security Holder" means a Noteholder.
"Indenture Trustee" means The Chase Manhattan Bank, as Indenture Trustee
under this Indenture, or any successor Indenture Trustee under this Indenture.
"Indenture Trustee Documents" shall have the meaning ascribed to such term
in Section 6.13(a) hereof.
"Independent" means, when used with respect to any specified Person, that
the Person (i) is in fact independent of the Issuer, any other obligor upon the
Notes, the Trust Depositor, Financial and any of their respective Affiliates,
(ii) does not have any direct financial interest or any material indirect
financial interest in the Issuer, any such other obligor, Financial or any of
their respective Affiliates, and (iii) is not connected with the Issuer, any
such other obligor, Financial or any Affiliate of any of the foregoing Persons
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
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"Independent Certificate" means a certificate or opinion to be delivered to
the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01, made by an
Independent appraiser or other expert appointed by an Issuer Order and approved
by the Indenture Trustee in the exercise of reasonable care, and such opinion or
certificate shall state that the signer has read the definition of "Independent"
in this Indenture and that the signer is Independent within the meaning thereof.
"Interest Rate" means, as the context may require, the Class A-1 Interest
Rate, the Class A-2a Interest Rate, Class A-2b Interest Rate, the Class A-3
Interest Rate, the Class A-4 Interest Rate, the Class B Interest Rate, the Class
C Interest Rate and the Class D Interest Rate, or any of them, in each case as
defined in the Pooling and Servicing Agreement.
"Issuer Order" and "Issuer Request" means a written order or request signed
in the name of the Issuer by any one of its Authorized Officers and delivered to
the Indenture Trustee.
"Majority in Interest" has the same meaning given the term Required Holders
in the Pooling and Servicing Agreement.
"Note Depository Agreement" means the agreement dated as of the Closing
Date, among the Issuer, the Administrator, the Indenture Trustee and DTC, as the
initial Clearing Agency, relating to the Notes, substantially in the form of
Exhibit G hereto.
"Note Register" and "Note Registrar" have the respective meanings specified
in Section 2.04.
"Noteholder" means, with respect to a Book-Entry Note, the Person who is
the owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with such Clearing
Agency (directly as a Clearing Agency participant or as an indirect participant,
in each case in accordance with the rules of such Clearing Agency) and with
respect to a Definitive Note the Person in whose name a Note is registered on
the Note Register.
"Officer's Certificate" means a certificate signed by any Authorized
Officer of the Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01, and delivered to,
the Indenture Trustee. Unless otherwise specified, any reference in this
Indenture to an Officer's Certificate shall be to an Officer's Certificate of
any Authorized Officer of the Issuer.
"Opinion of Counsel" means one or more written opinions of counsel who may,
except as otherwise expressly provided in this Indenture, be employees of or
counsel to the Issuer and who shall be satisfactory to the Indenture Trustee and
which shall comply with any applicable requirements of Section 11.01, and shall
be in form and substance satisfactory to the Indenture Trustee.
"Outstanding" means, as of the date of determination, all Notes theretofore
authenticated and delivered under this Indenture except:
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(a) Notes theretofore canceled by the Note Registrar or delivered to
the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture Trustee
or any Paying Agent in trust for the Holders of such Notes (provided,
however, that if such Notes are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision for such notice
has been made, satisfactory to the Indenture Trustee, has been made); and
(c) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes are
held by a bona fide purchaser;
provided, however, that in determining whether the Holders of the requisite
Outstanding Amount have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or under any other Transaction Document,
Notes owned by the Issuer, any other obligor upon the Notes, the Trust
Depositor, Financial or any of their respective Affiliates shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Indenture Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that the
Indenture Trustee knows to be so owned shall be so disregarded. Notes so owned
that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Indenture Trustee the pledgee's
right so to act with respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes, the Trust Depositor, Financial or any
of their respective Affiliates.
"Outstanding Amount" means the aggregate principal amount of all Notes of
one Class or of all Classes, as the case may be, Outstanding at the date of
determination.
"Owner Trustee" means Allfirst Financial Center National Association, not
in its individual capacity but solely as Owner Trustee under the Trust
Agreement, or any successor trustee under the Trust Agreement.
"Paying Agent" means the Indenture Trustee or any other Person that meets
the eligibility standards for the Indenture Trustee specified in Section 6.11
and is authorized by the Issuer to make the distributions from the Note
Distribution Account, including payment of principal of or interest on the Notes
on behalf of the Issuer.
"Payment Date" means the twentieth (20th) day (or if any such date is not a
Business Day, then on the next succeeding Business Day) of each calendar month
commencing May 22, 2000.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement, dated as of the date hereof, among the Issuer, the Trust Depositor,
Financial and the Servicer.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and
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<PAGE>
for the purpose of this definition, any Note authenticated and delivered
under Section 2.05 in lieu of a mutilated, lost, destroyed or stolen Note shall
be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Note.
"Proceeding" means any suit in equity, action at law or other judicial or
administrative proceeding.
"Record Date" means, with respect to any Payment Date, the Business Day
immediately preceding such Payment Date; provided, however, that with any
Definitive Note the Record Date shall be the last Business Day of the month
preceding the month in which such Payment Date occurs.
"Redemption Date" means in the case of a redemption of the Notes pursuant
to Section 10.01(a) or a payment to Noteholders pursuant to Section 10.01(b),
the Payment Date specified by the Servicer or the Issuer pursuant to Section
10.01(a) or 10.01(b), as the case may be.
"Redemption Date Amount" means (i) in the case of a redemption of the Notes
pursuant to Section 10.01(a), an amount equal to the unpaid principal amount of
the Notes redeemed plus accrued and unpaid interest thereon at the Interest Rate
for each Class of Notes being so redeemed to but excluding the Redemption Date,
or (ii) in the case of a payment made to Noteholders pursuant to Section
10.01(b), the amount on deposit in the Note Distribution Account, but not in
excess of the amount specified in clause (i) above.
"Registered Holder" means the Person in whose name a Note is registered on
the Note Register on the applicable Record Date.
"Responsible Officer" means, with respect to the Indenture Trustee, any
officer within the Corporate Trust Office (or any successor group of the
Indenture Trustee), including any Vice President, assistant secretary or other
officer or assistant officer of the Indenture Trustee customarily performing
functions similar to those performed by the people who at such time shall be
officers, respectively, or to whom any corporate trust matter is referred at the
Corporate Trust Office of the Indenture Trustee because of his knowledge of and
familiarity with the particular subject and, in each case, having direct
responsibility for the administration of the Indenture.
"Security Entitlement" has the meaning specified in Section 8-102(a)(17) of
the UCC.
"State" means any one of the 50 states of the United States, or the
District of Columbia or any of its territories.
"Termination Date" means the date on which the Indenture Trustee shall have
received payment and performance of all amounts and obligations which the Issuer
may owe to or on behalf of the Indenture Trustee for the benefit of the
Noteholders under this Indenture or the Notes.
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"Transferred Assets" shall have the meaning ascribed thereto in the Pooling
and Servicing Agreement.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated as
of the date hereof, between the Trust Depositor and the Owner Trustee.
"Trust Certificate" means the Equity Certificate of the Issuer
substantially in the form of Exhibit B to the Trust Agreement.
"Trust Depositor" means NCT Funding Company, L.L.C., a Delaware limited
liability company.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended.
"UCC" means, unless the context otherwise requires, the Uniform Commercial
Code, as in effect in the relevant jurisdiction, as amended from time to time.
(b) Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto in the Pooling and Servicing Agreement.
Section 1.02 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
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Section 1.03 Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned to
it in accordance with generally accepted accounting principles as in effect from
time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in the plural
include the singular.
(vi) any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns; and
(vii) the words "hereof," "herein" and "hereunder" and words of similar
import when used in this Indenture shall refer to this Indenture as a whole and
not to any particular provision of this Indenture; Section, subsection and
Schedule references contained in this Indenture are references to Sections,
subsections and Schedules in or to this Indenture unless otherwise specified.
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ARTICLE TWO
THE NOTES
Section 2.01 Form. The Notes, in each case together with the Indenture
Trustee's certificate of authentication, shall be in substantially the forms set
forth as Exhibits to this Indenture with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may, consistently herewith,
be determined by the officers executing such Notes, as evidenced by their
execution of the Notes. Any portion of the text of any Note may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of the
Note.
Each Note shall be dated the date of its authentication. The terms of the
Notes set forth in Exhibits hereto are part of the terms of this Indenture.
Section 2.02 Execution, Authentication and Delivery. The Notes shall be
executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile. Notes bearing the manual or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Indenture Trustee shall, upon receipt of an Issuer Order, authenticate
and deliver for original issue (i) Class A-1 Notes in an aggregate principal
amount of $288,583,600, (ii) Class A-2a Notes in an aggregate principal amount
of $144,291,800, (iii) Class A-2b Notes in an aggregate principal amount of
$144,291,800, (iv) Class A-3 Notes in an aggregate principal amount of
$187,959,055, (v) Class A-4 Notes in an aggregate principal amount of
$93,030,239, (vi) Class B Notes in an aggregate principal amount of $11,391,458,
(vii) Class C Notes in an aggregate principal amount of $15,188,611, and (viii)
Class D Notes in an aggregate principal amount of $18,985,762. The aggregate
principal amount of such Classes of Notes Outstanding at any time may not exceed
such respective amounts, except as otherwise provided in Section 2.05.
Each Note shall be dated the date of its authentication. The Notes shall be
issuable as registered Notes in the minimum denomination of $1,000 and in
integral multiples of $1,000 in excess thereof or in such other denomination as
shall be necessary.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless there appears on such Note a certificate
of authentication substantially in the form provided for herein by the Indenture
Trustee by the manual signature of one of its authorized signatories, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder.
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Section 2.03 Temporary Notes. Pending the preparation of Book-Entry Notes
or Definitive Notes, the Issuer may execute, and upon receipt of an Issuer Order
the Indenture Trustee shall authenticate and deliver, temporary Notes that are
printed, lithographed, typewritten, mimeographed or otherwise produced, of the
tenor of the definitive Notes in lieu of which they are issued and with such
variations not inconsistent with the terms of this Indenture as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
If temporary Notes are issued, the Issuer will cause Book-Entry Notes or
Definitive Notes to be prepared without unreasonable delay. After the
preparation of Book-Entry Notes or Definitive Notes, the temporary Notes shall
be exchangeable for Book-Entry Notes or Definitive Notes upon surrender of the
temporary Notes at the office or agency of the Issuer to be maintained as
provided in Section 3.02, without charge to the Holder. Upon surrender for
cancellation of any one or more Notes, the Issuer shall execute and the
Indenture Trustee shall authenticate and deliver in exchange therefor a like
tenor and principal amount of definitive Notes of authorized denominations.
Until so exchanged, the temporary Notes shall in all respects be entitled to the
same benefits under this Indenture as Book-Entry Notes or Definitive Notes.
Section 2.04 Registration; Registration of Transfer and Exchange; Transfer
Restriction. The Issuer shall cause to be kept a register (the "Note Register")
in which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Notes and the registration of transfers of
Notes. The Indenture Trustee shall be "Note Registrar" for the purpose of
registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint a successor
or, if it elects not to make such an appointment, assume the duties of Note
Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer as
Note Registrar, the Issuer will give the Indenture Trustee prompt written notice
of the appointment of such Note Registrar and of the location, and any change in
the location, of the Note Register, and the Indenture Trustee shall have the
right to inspect the Note Register at all reasonable times and to obtain copies
thereof, and the Indenture Trustee shall have the right to rely upon a
certificate executed on behalf of the Note Registrar by an Executive Officer
thereof as to the names and addresses of the Holders of the Notes and the
principal amounts and the amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office or
agency of the Issuer to be maintained as provided in Section 3.02, the Issuer
shall execute, and the Indenture Trustee shall authenticate and the Noteholder
shall obtain from the Indenture Trustee, in the name of the designated
transferee or transferees, one or more new Notes of the same Class in any
authorized denominations, of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes of the
same Class in any authorized denominations, of a like aggregate amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Issuer shall execute, and the
Indenture Trustee shall authenticate and the Noteholder shall
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obtain from the Indenture Trustee, the Notes which the Noteholder making
the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by, the
Holder thereof or such Holder's attorney duly authorized in writing, with such
signature guaranteed by a commercial bank or trust company located, or having a
correspondent located in the city in which the Corporate Trust Office is
located, or by a member firm of a national securities exchange, and such other
documents as the Indenture Trustee may require.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Issuer or the Indenture Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 2.03 not involving
any transfer.
The preceding provisions of this Section notwithstanding, the Issuer shall
not be required to make and the Note Registrar need not register transfers or
exchanges of Notes selected for redemption or of any Note for a period of 15
days preceding the due date for any payment with respect to the Note.
Neither the Indenture Trustee nor the Registrar shall have any
responsibility to monitor or restrict the transfer of beneficial ownership in
any Note an interest in which is transferable through the facilities of the
Clearing Agency.
Notwithstanding the foregoing, prior to the Class A-2a Maturity Date, the
Class A-2b Notes may not be transferred without the prior written consent of the
Trust Depositor.
No transfer, sale, pledge or other disposition of any Class A-2b Note or
any interest therein shall be made unless such transfer is made pursuant to an
effective registration statement under the Securities Act and effective
registration or qualification under applicable state securities laws or is made
in a transaction that does not require such registration or qualification. Until
such time as the Class A-2b Notes shall be registered pursuant to a registration
statement filed under the Securities Act, the Class A-2b Notes shall bear a
legend to the effect set forth in the preceding sentence.
In the event that registration of a transfer of a Class A-2b Note or any
interest therein is to be made in reliance upon the exemption from registration
under the Securities Act contained in Rule 144A, such transfer shall be made
only to a Qualified Institutional Buyer which is aware that the transfer of such
Class A-2b Note is being made in reliance on Rule 144A and is acquiring such
Class A-2b Note for its own account or for the account of a Qualified
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Institutional Buyer, as the case may be, and such transferee shall be deemed to
have represented that the foregoing is true and correct and that such transferee
understands that such Class A-2b Note has not been and will not be registered
under the Securities Act and may not be reoffered, resold, pledged or otherwise
transferred except (A) to a person who such transferee reasonably believes is a
Qualified Institutional Buyer in a transaction meeting the requirements of Rule
144A and (B) in accordance with all applicable securities laws of the states of
the United States.
In the event that registration of a transfer of a Class A-2b Note or any
interest therein is to be made in reliance upon an exemption from registration
under the Securities Act (other than the exemption from registration contained
in Rule 144A) and applicable state securities laws in order to assure compliance
with the Securities Act, the transferor or the transferee shall deliver to the
Indenture Trustee, the Trust Depositor, the Trust and the Servicer an Opinion of
Counsel (which may be internal counsel) that such transfer may be made pursuant
to an exemption from the Securities Act (other than the exemption from
registration contained in Section 3(a)(2) thereof).
The Holder of a Class A-2b Note desiring to effect a transfer of such Class
A-2b Note shall, and does hereby agree to, indemnify the Indenture Trustee, the
Trust Depositor, the Trust and the Servicer against any liability that may
result if such transfer is not so exempt or is not made in accordance with such
federal and state laws.
Neither the Servicer, the Note Registrar, the Trust nor the Indenture
Trustee is obligated to register the Class A-2b Notes under the Securities Act
or under any state securities laws.
Prospective transferors of Class A-2b Notes and prospective
transferees of Class A-2b Notes that are Qualified Institutional Buyers buying
Class A-2b Notes in reliance upon Rule 144A may request from the Servicer
information regarding the Trust and the Trust assets. Within five (5) Business
Days of any such request, the Servicer shall deliver to any such prospective
transferor or transferee (i) a copy of each Monthly Report delivered to
Noteholders since the first Payment Date pursuant to Section 9.01, (ii) copies
of the Pooling and Servicing Agreement and this Indenture as well as information
relating to the Trust Depositor, the Servicer, the Contracts, the Pooling and
Servicing Agreement and this Agreement substantially in the form of the
Prospectus dated June 19, 1999 and the Prospectus Supplement relating to the
Notes, dated May 3, 2000 and (iii) such other information as may be required to
comply with Rule 144A and any interpretation thereof.
As a condition to the registration of any transfer of any Class A-2b Note,
the prospective transferee shall deliver to the Note Registrar and the Indenture
Trustee a certificate substantially in the form attached hereto as Exhibit H (a
"Class A-2b Note Transferee Letter") or shall supply other evidence to the same
effect satisfactory to the Servicer.
Section 2.05 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by them to hold the Issuer and
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the Indenture Trustee harmless, then, in the absence of notice to the
Issuer, the Note Registrar or the Indenture Trustee that such Note has been
acquired by a bona fide purchaser, the Issuer shall execute and upon its written
request the Indenture Trustee shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement
Note of the same Class; provided, however, that if any such destroyed, lost or
stolen Note, but not a mutilated Note, shall have become or within seven days
shall be due and payable, or shall have been called for redemption, instead of
issuing a replacement Note, the Issuer may pay such destroyed, lost or stolen
Note when so due or payable or upon the Redemption Date without surrender
thereof. If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a bona fide purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Issuer,
and the Indenture Trustee shall be entitled to recover such replacement Note (or
such payment) from the Person to whom it was delivered or any Person taking such
replacement Note from such Person to whom such replacement Note was delivered or
any assignee of such Person, except a bona fide purchaser, and shall be entitled
to recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Issuer or the Indenture Trustee in
connection therewith.
Upon the issuance of any replacement Note under this Section, the Issuer or
the Indenture Trustee may require the payment by the Holder of such Note of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee or the Note Registrar) connected therewith.
Every replacement Note issued pursuant to this Section in replacement of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
Section 2.06 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee, and any
of their respective agents may treat the Person in whose name any Note is
registered (as of the day of determination) as the owner of such Note for the
purpose of receiving payments of principal of and interest, if any, on such Note
and for all other purposes whatsoever, whether or not such Note be overdue, and
none of the Issuer, the Indenture Trustee nor any of their respective agents
shall be affected by notice to the contrary.
Section 2.07 Payment of Principal and Interest; Defaulted Interest.
(a) Each Class of Notes shall accrue interest at the related Interest Rate,
and such interest shall be payable on each Payment Date, subject to Section
3.01. Any installment of
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interest or principal, if any, payable on any Note which is punctually paid
or duly provided for by the Issuer on the applicable Payment Date shall be paid
to the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the Record Date, by check mailed first-class, postage prepaid to
such Person's address as it appears on the Note Register on such Record Date;
provided, however, that, unless and until Definitive Notes have been issued
pursuant to Section 2.11, with respect to Notes registered on the applicable
Record Date in the name of the nominee of the Clearing Agency (initially, Cede &
Co.), payment shall be made by wire transfer in immediately available funds to
the account designated by such nominee; provided, further, however, that payment
shall be made by wire transfer in immediately available funds to the account
designated to the Note Registrar by the Person in whose name the Class A-2b
Notes (or one or more Predecessor Notes) is registered on the Record Date, and
except for the final installment of principal payable with respect to such Note
on a Payment Date or on the related final Payment Date, as the case may be (and
except for the Redemption Price for any Note called for redemption pursuant to
Section 10.01(a)), which shall be payable as provided below.
(b) The principal of each Note shall be payable on each Payment Date to the
extent provided in the form of the related Note set forth as an Exhibit hereto.
Notwithstanding the foregoing, (i) the entire unpaid principal amount of the
Notes shall be due and payable, if not previously paid, on the date on which an
Event of Default shall have occurred and be continuing, unless the Required
Holders have waived such Event of Default in the manner provided in Section
5.02, and (ii) the Class A-2a Notes shall be due and payable, if not previously
paid, on the date on which a Class A-2a Event of Default shall have occurred and
be continuing. All principal payments on each Class of Notes shall be made pro
rata to the Noteholders of such Class entitled thereto. The Indenture Trustee
shall, to the extent practicable, notify the Person in whose name a Note is
registered at the close of business on the Record Date preceding the Payment
Date on which the Issuer expects that the final installment of principal of and
interest on such Note will be paid. Such notice shall be mailed within five
Business Days of receipt of notice of termination of the Trust pursuant to
Section 9.01(c) of the Trust Agreement and shall specify that such final
installment will be payable only upon presentation and surrender of such Note
and shall specify the place where such Note may be presented and surrendered for
payment of such installment. Notices in connection with redemptions of Notes
shall be mailed to Noteholders as provided in Section 10.02.
(c) If the Issuer defaults in a payment of interest on the Notes, the
Issuer shall pay defaulted interest at the applicable Interest Rate to the
extent lawful. The Issuer may pay such defaulted interest to the Persons who are
Noteholders on any Payment Date in the manner and to the extent provided in the
Pooling and Servicing Agreement.
(d) All payments to be made by the Issuer under this Indenture shall
be made only from the income and proceeds from the Collateral and only to the
extent that the Issuer shall have sufficient income or proceeds from the
Collateral to enable the Issuer to make payments in accordance with the terms
hereof. The Indenture Trustee is not personally liable for any amounts payable
under this Indenture, except as expressly provided herein.
Section 2.08 Cancellation. All Notes surrendered for payment, registration
of transfer, exchange or redemption shall, if surrendered to any Person other
than the Indenture
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Trustee, be delivered to the Indenture Trustee and shall be promptly canceled by
the Indenture Trustee. The Issuer may at any time deliver to the Indenture
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Issuer may have acquired in any manner whatsoever, and all
Notes so delivered shall be promptly canceled by the Indenture Trustee. No Notes
shall be authenticated in lieu of or in exchange for any Notes canceled as
provided in this Section, except as expressly permitted by this Indenture. All
canceled Notes may be held or disposed of by the Indenture Trustee in accordance
with its standard retention or disposal policy as in effect at the time unless
the Issuer shall direct by an Issuer Order that they be destroyed or returned to
it; provided that such Issuer Order is timely and the Notes have not been
previously disposed of by the Indenture Trustee.
Section 2.09 Book-Entry Notes. The Notes (other than the Class A-2b Notes),
upon original issuance, will be issued in the form of a typewritten Note or
Notes representing the Book-Entry Notes, to be delivered to DTC, the initial
Depository, by, or on behalf of, the Issuer. Such Notes shall initially be
registered on the Note Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Noteholder of such Notes will receive a
Definitive Note representing such Noteholder's interest in such Note, except as
provided in Section 2.11. Unless and until definitive, fully registered Notes
(the "Definitive Notes") have been issued to Noteholders pursuant to Section
2.11:
(a) the provisions of this Section shall be in full force and effect;
(b) the Note Registrar and the Indenture Trustee shall be entitled to
deal with the Clearing Agency for all purposes of this Indenture (including the
payment of principal of and interest on the Notes and the giving of instructions
or directions hereunder) as the sole holder of the Notes, and shall have no
obligation to the Noteholders;
(c) to the extent that the provisions of this Section conflict with
any other provisions of this Indenture, the provisions of this Section shall
control;
(d) the rights of Noteholders shall be exercised only through the
Clearing Agency and shall be limited to those established by law and agreements
between such Noteholders and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Note Depository Agreement, unless and until
Definitive Notes are issued pursuant to Section 2.11, the Clearing Agency will
make book-entry transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Notes to such Clearing
Agency Participants; and
(e) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Noteholders evidencing a specified
percentage of the Outstanding Amount, the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has received instructions
to such effect from Noteholders and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the beneficial interest
in the Notes and has delivered such instructions to the Indenture Trustee in a
form reasonably acceptable to the Indenture Trustee.
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Section 2.10 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Noteholders pursuant to Section
2.11, the Indenture Trustee shall give all such notices and communications
specified herein to be given to Noteholders to the Clearing Agency, and shall
have no obligation to the Noteholders.
Section 2.11 Definitive Notes. With respect to the Classes of Notes, if
(i)(A) the Administrator advises the Indenture Trustee in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities as described in the Note Depository Agreement, and (B) the
Indenture Trustee or the Administrator is unable to locate a qualified
successor, (ii) the Administrator at its option advises the Indenture Trustee in
writing that it elects to terminate the book-entry system through the Clearing
Agency, or (iii) after the occurrence of an Event of Default, Holders of Notes
(other than the Class A-2b Notes) representing not less than 66 2/3% of the
Outstanding Amount of such Class of Notes advise the Indenture Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of the related Noteholders, then the Indenture Trustee shall
notify all Noteholders of the related Class or Classes of Notes, through the
Clearing Agency, of the occurrence of any such event and of the availability of
Definitive Notes of the related Class of Notes to Noteholders requesting the
same. Upon surrender to the Indenture Trustee of the Note or Notes representing
the Book-Entry Notes by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee shall
authenticate the Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Note Registrar or the Indenture Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Notes of a Class, the Indenture Trustee shall
recognize the holders of the Definitive Notes as Noteholders hereunder.
The Indenture Trustee shall not be liable if the Indenture Trustee or the
Administrator is unable to locate a qualified successor Clearing Agency.
Definitive Notes shall be prepared at the expense of the Servicer and shall be
typewritten, printed, lithographed or engraved or produced by any combination of
these methods (with or without steel engraved borders), all as determined by the
officers executing such Notes, as evidenced by their execution of such Notes.
The Issuer shall execute and the Indenture Trustee shall authenticate the
Class A-2b Notes as Definitive Notes.
Section 2.12 Release of Collateral. The Indenture Trustee shall release
property from the lien of this Indenture only upon receipt of an Issuer Request
stating that all conditions precedent under the Transaction Documents to such
release and Section 11.01 hereof have been satisfied, accompanied by an
Officer's Certificate.
Section 2.13 Tax Treatment. The Issuer and the purchasers of the Notes
intend, and will take all actions consistent with the intention, that the Notes
be treated as indebtedness which is solely secured by the assets of the Trust
for all federal, state, local, and foreign income
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and franchise tax purposes and that, pursuant to Treasury Regulations
Section 301.7701-3(b)(1)(ii) as in effect for periods after January 1, 1997, the
Trust be disregarded as a separate entity from the Trust Depositor for federal
income tax purposes. The Issuer, by entering into this Indenture, and each
Noteholder, by its acceptance of its Note agrees to treat the Notes for federal,
state and local income, single business and franchise tax purposes as
indebtedness.
Section 2.14 Additional Class A-2b Notes. If the Principal Amount of the
Class A-2b Notes shall be reduced pursuant to Section 7.05(f) of the Pooling and
Servicing Agreement, the Issuer shall, upon receipt of written direction from
the Trust Depositor, execute additional Class A-2b Notes in an aggregate
principal amount as specified by the Trust Depositor in such written direction,
not to exceed the Principal Amount of the Class A-2b Notes so reduced pursuant
to Section 7.05(f) of the Pooling and Servicing Agreement, and execute and
deliver an Issuer Order to the Indenture Trustee. The Indenture Trustee shall,
upon receipt of an Issuer Order, authenticate and deliver for original issue
additional Class A-2b Notes in an aggregate principal amount as specified in
such Issuer Order. Subject to Section 8.02 hereof, the additional Class A-2b
Notes so issued hereunder shall be entitled to all amounts and all of the
benefits otherwise accorded to the original Class A-2b Notes issued pursuant to
Section 2.02 of this Indenture; provided, however, that on or prior to the Class
A-2a Maturity Date, such additional Class A-2b Notes shall only be entitled to
an amount equal to the Investment Earnings on amounts on deposit in the
subaccount of the Class A-2a Funding Account (as opposed to the entire Class
A-2a Funding Account) established by the Indenture Trustee pursuant to Section
7.01(g) as its Class A-2b Monthly Interest Distributable Amount.
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ARTICLE THREE
COVENANTS; REPRESENTATIONS AND WARRANTIES
Section 3.01 Payment of Principal and Interest. The Issuer will duly and
punctually pay the principal of and interest, if any, on the Notes in accordance
with the terms of the Notes and this Indenture. Without limiting the foregoing,
subject to Section 8.02(c), the Issuer will cause to be deposited into the Note
Distribution Account amounts allocated pursuant to Section 7.05 of the Pooling
and Servicing Agreement, and cause to be distributed all such amounts on a
Payment Date as deposited therein (i) for the benefit of the Class A-1 Notes, to
the Class A-1 Noteholders, (ii) for the benefit of the Class A-2a Notes, to the
Class A-2a Noteholders, (iii) for the benefit of the Class A-2b Notes, to the
Class A-2b Noteholders, (iv) for the benefit of the Class A-3 Notes, to the
Class A-3 Noteholders, (v) for the benefit of the Class A-4 Notes, to the Class
A-4 Noteholders, (vi) for the benefit of the Class B Notes, to the Class B
Noteholders, (vii) for the benefit of the Class C Notes, to the Class C
Noteholders and (viii) for the benefit of the Class D Notes, to the Class D
Noteholders, in each case as further specified herein. Amounts properly withheld
under the Code by any Person from a payment to any Noteholder of interest and/or
principal shall be considered as having been paid by the Issuer to such
Noteholder for all purposes of this Indenture.
Section 3.02 Maintenance of Office or Agency. The Issuer will maintain in
New York, New York, an office or agency where Notes may be surrendered for
registration of transfer or exchange, and where notices and demands to or upon
the Issuer in respect of the Notes and this Indenture may be served. The Issuer
hereby initially appoints the Indenture Trustee to serve as its agent for the
foregoing purposes. The Issuer will give prompt written notice to the Indenture
Trustee of the location, and of any change in the location, of any such office
or agency. If at any time the Issuer shall fail to maintain any such office or
agency or shall fail to furnish the Indenture Trustee with the address thereof,
such surrenders, notices and demands may be made or served at the Corporate
Trust Office, and the Issuer hereby appoints the Indenture Trustee as its agent
to receive all such surrenders, notices and demands.
Section 3.03 Money for Payments to be Held in Trust. As provided in Section
8.02, all payments of amounts due and payable with respect to any Notes that are
to be made from amounts withdrawn from the Collection Account and the Note
Distribution Account pursuant to Section 8.02(b) shall be made on behalf of the
Issuer by the Indenture Trustee or by another Paying Agent (pursuant to the
written instructions of the Servicer), and no amounts so withdrawn from the
Collection Account and the Note Distribution Account for payments of Notes shall
be paid over to the Issuer except as provided in the Pooling and Servicing
Agreement.
On or before the Business Day immediately preceding each Payment Date and
Redemption Date, upon written notice and instruction from the Servicer, the
Indenture Trustee shall withdraw from the Collection Account and deposit or
cause to be deposited in the Note Distribution Account, to the extent available,
an aggregate sum sufficient to pay the amounts then becoming due, such sum to be
held in trust for the benefit of the Persons entitled thereto and
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(unless the Paying Agent is the Indenture Trustee) shall promptly notify
the Indenture Trustee of its action or failure to so act.
The Issuer will cause each Paying Agent other than the Indenture Trustee to
execute and deliver to the Indenture Trustee an instrument in which such Paying
Agent shall agree with the Indenture Trustee (and if the Indenture Trustee acts
as Paying Agent, it hereby so agrees), subject to the provisions of this
Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of amounts due with respect to
the Notes in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and pay such sums to such Persons as herein provided;
(b) give the Indenture Trustee notice of any default by the Issuer (or any
other obligor upon the Notes) of which it has actual knowledge in the making of
any payment required to be made with respect to the Notes;
(c) at any time during the continuance of any such default, upon the
written request of the Indenture Trustee, forthwith pay to the Indenture Trustee
all sums so held in trust by such Paying Agent;
(d) immediately resign as a Paying Agent and forthwith pay to the Indenture
Trustee all sums held by it in trust for the payment of Notes if at any time it
ceases to meet the standards required to be met by a Paying Agent at the time of
its appointment; and
(e) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Order direct
any Paying Agent to pay to the Indenture Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts
as those upon which the sums were held by such Paying Agent; and upon such
payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money held
by the Indenture Trustee or any Paying Agent in trust for the payment of any
amount due with respect to any Note and remaining unclaimed for two years after
such amount has become due and payable shall be discharged from such trust and
upon receipt of an Issuer Request shall be deposited by the Indenture Trustee in
the Collection Account; and the Holder of such Note shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof, and all
liability of the Indenture Trustee or such Paying Agent with respect to such
trust money shall thereupon cease; provided, however, that the Indenture Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Issuer cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and
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of general circulation in The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to or for the account of the Issuer.
The Indenture Trustee may also adopt and employ, at the expense of the Issuer,
any other reasonable means of notification of such repayment (including, but not
limited to, mailing notice of such repayment to Holders whose Notes have been
called but have not been surrendered for redemption or whose right to or
interest in moneys due and payable but not claimed is determinable from the
records of the Indenture Trustee or of any Paying Agent, at the last address of
record for each such Holder).
Section 3.04 Existence. The Issuer will keep in full effect its existence,
rights and franchises as a business trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other state or of the United States, in which
case the Issuer will keep in full effect its existence, rights and franchises
under the laws of such other jurisdiction) and will obtain and preserve its
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Indenture, the Notes, the Collateral and each other instrument or agreement
included in the Collateral.
Section 3.05 Protection of Collateral. The Issuer intends the security
interest Granted pursuant to this Indenture in favor of the Indenture Trustee on
behalf of the Noteholders to be prior to all other liens (other than Permitted
Liens) in respect of the Collateral, and the Issuer shall take all actions
necessary to obtain and maintain, for the benefit of the Indenture Trustee on
behalf of the Noteholders, a first lien on and a first priority, perfected
security interest in the Collateral (subject to Permitted Liens). The Issuer
will from time to time execute, deliver and file all such supplements and
amendments hereto and all such financing statements, continuation statements,
instruments of further assurance and other instruments, all as prepared by the
Servicer and delivered to the Issuer, and will take such other action necessary
or advisable to:
(a) Grant more effectively all or any portion of the Collateral;
(b) maintain or preserve the lien and security interest (and the priority
thereof) created by this Indenture or carry out more effectively the purposes
hereof;
(c) perfect, publish notice of or protect the validity of any Grant made or
to be made by this Indenture;
(d) enforce any of the Collateral;
(e) preserve and defend title to the Collateral and the rights of the
Indenture Trustee and the Noteholders in such Collateral against the claims of
all persons and parties; and
(f) pay all taxes or assessments levied or assessed upon the Collateral
when due.
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The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute all financing statements, continuation statements or
other instruments prepared by and at the expense of the Servicer required to be
executed pursuant to this Section.
Section 3.06 [Reserved].
Section 3.07 Performance of Obligations; Servicing of Contracts.
(a) The Issuer will not take any action and will use its best efforts not
to permit any action to be taken by others that would release any Person from
any such Person's material covenants or obligations under any instrument or
agreement included in the Collateral or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
expressly provided in the Transaction Documents or such other instrument or
agreement.
(b) The Issuer may contract with other Persons to assist it in performing
its duties and obligations under this Indenture, and any performance of such
duties by a Person identified to the Indenture Trustee in an Officer's
Certificate shall be deemed to be action taken by the Issuer. The Indenture
Trustee shall not be responsible for the action or inaction of such Persons, the
Servicer or the Administrator. Initially, the Issuer has contracted with the
Servicer and the Administrator to assist the Issuer in performing its duties
under this Indenture.
(c) The Issuer will punctually perform and observe all of its obligations
and agreements contained in this Indenture, the other Transaction Documents and
in the instruments and agreements included in the Collateral, including but not
limited to filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by the terms of this Indenture and
the Pooling and Servicing Agreement in accordance with and within the time
periods provided for herein and therein. Except as otherwise expressly provided
therein, the Issuer shall not waive, amend, modify, supplement or terminate any
Transaction Document or any provision thereof without the consent of the
Indenture Trustee, acting, if required by the terms of the Transaction
Documents, at the direction of the Required Holders.
(d) If the Issuer shall have knowledge of the occurrence of a Servicer
Default, the Issuer shall promptly notify the Indenture Trustee and each Rating
Agency thereof. Upon any termination of the Servicer's rights and powers
pursuant to the Pooling and Servicing Agreement, the Issuer shall promptly
notify the Indenture Trustee. As soon as a Successor Servicer is appointed, the
Issuer shall notify the Indenture Trustee and the Rating Agencies of such
appointment (to the extent such party has not already been notified pursuant to
the Pooling and Servicing Agreement), specifying in such notice the name and
address of such Successor Servicer.
(e) The Issuer agrees that it will not waive timely performance or
observance by the Servicer or Financial of their respective duties under the
Transaction Documents if the effect thereof would adversely affect the Holders
of the Notes.
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Section 3.08 Negative Covenants. Until the Termination Date, the Issuer
shall not:
(a) except as expressly permitted by the Transaction Documents, sell,
transfer, exchange or otherwise dispose of any of the properties or assets of
the Issuer, including those included in the Collateral, unless directed to do so
by the Indenture Trustee at the request of the Required Holders;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly withheld
from such payments under the Code or applicable state law) or assert any claim
against any present or former Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Collateral; or
(c) (A) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien created by this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to be
released from any covenant; or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (B) permit any lien,
charge, excise, claim, security interest, mortgage or other encumbrance (other
than the lien of this Indenture) to be created on or extend to or otherwise
arise upon or burden the Collateral or any part thereof or any interest therein
or the proceeds thereof (other than Permitted Liens), (C) permit the lien
created by this Indenture not to constitute a valid first priority (other than
with respect to Permitted Liens) security interest in the Collateral, or (D)
amend, modify or fail to comply with the provisions of the Transaction Documents
without the prior written consent of the Indenture Trustee acting at the
direction of the Required Holders, except where the Transaction Documents allow
for amendment or modification without the consent or approval of the Indenture
Trustee; or
(d) dissolve or liquidate in whole or in part.
Section 3.09 Issuer May Consolidate, etc. Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving such
consolidation or merger shall be a Person organized and existing under the
laws of the United States or any State and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Indenture
Trustee, in form and substance satisfactory to the Indenture Trustee, the
due and punctual payment of the principal of and interest on all Notes and
the performance or observance of every agreement and covenant of this
Indenture and each other Transaction Document on the part of the Issuer to
be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
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(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel which shall
be delivered to and shall be satisfactory to the Indenture Trustee to the
effect that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or the Equity Certificateholder;
(v) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken;
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel (which shall describe the
actions taken as required by clause (v) above or that no such actions will
be taken) each stating that such consolidation or merger and such
supplemental indenture comply with this Article Three and that all
conditions precedent herein provided for relating to such transaction have
been complied with; and
(vii) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger has a net worth, immediately after such
consolidation or merger, that is (A) greater than zero and (B) not less
than the net worth of the Issuer immediately prior to giving effect to such
consolidation or merger.
(b) The Issuer shall not convey or transfer all or substantially all of its
properties or assets, including those included in the Collateral, to any Person
(except as expressly permitted by the Transaction Documents), unless:
(i) the Person that acquires by conveyance or transfer the properties
and assets of the Issuer shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States or any State,
(B) expressly assume, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form and substance satisfactory to
the Indenture Trustee, the due and punctual payment of the principal of and
interest on all Notes and the performance or observance of every agreement
and covenant of this Indenture and each other Transaction Document on the
part of the Issuer to be performed or observed, all as provided herein, (C)
expressly agree by means of such supplemental indenture that all right,
title and interest so conveyed or transferred shall be subject and
subordinate to the rights of Holders of the Notes and (D) unless otherwise
provided in such supplemental indenture, expressly agree to indemnify,
defend and hold harmless the Issuer and the Indenture Trustee against and
from any loss, liability or expense arising under or related to this
Indenture and the Notes;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
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(iv) the Issuer shall have received an Opinion of Counsel which shall
be delivered to and shall be satisfactory to the Indenture Trustee to the
effect that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or the Equity Certificateholder;
(v) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken;
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel (which shall describe the
actions taken as required by clause (v) above or that no such actions will
be taken) each stating that such conveyance or transfer and such
supplemental indenture comply with this Article Three and that all
conditions precedent herein provided for relating to such transaction have
been complied with (including any filings required by Exchange Act); and
(vii) the Issuer has a net worth, immediately after such conveyance or
transfer, that is (A) greater than zero and (B) not less than the net worth
of the Issuer immediately prior to giving effect to such conveyance or
transfer.
Section 3.10 Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.09(a), the Person formed by or surviving such consolidation or merger
(if other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with same
effect as if such Person has been named as the Issuer herein.
(b) Upon a conveyance or transfer of all or substantially all the assets or
properties of the Issuer in accordance with Section 3.09(b), the Issuer will be
released from every covenant and agreement of this Indenture to be observed or
performed on the part of the Issuer with respect to the Notes immediately upon
the delivery of written notice to the Indenture Trustee stating that the Issuer
is to be so released.
Section 3.11 No Other Business. The Issuer shall not engage in any business
other than financing, purchasing, owning, selling and managing the Contracts in
the manner contemplated by this Indenture and the other Transaction Documents
and activities incidental thereto.
Section 3.12 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
Indebtedness except for (i) the Notes and (ii) any other Indebtedness permitted
by or arising under the other Transaction Documents. The proceeds of the Notes
and the Equity Certificate shall be used exclusively to fund the Issuer's
purchase of the Contracts and the other assets specified in the Pooling and
Servicing Agreement, to fund the Cash Collateral Account and to pay the
transactional expenses of the Issuer.
Section 3.13 Notice of Events of Default. The Issuer agrees to give the
Indenture Trustee, the Class A-2 Swap Counterparty, the Class A-3 Swap
Counterparty and each
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Rating Agency prompt written notice of each Event of Default hereunder, a
Class A-2a Event of Default hereunder and of a Servicer Default under the
Pooling and Servicing Agreement.
Section 3.14 Further Instruments and Acts. Upon request of the Indenture
Trustee, the Issuer will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
Section 3.15 Compliance with Laws. The Issuer shall comply with the
requirements of all applicable laws, the non-compliance with which would,
individually or in the aggregate, materially and adversely affect the ability of
the Issuer to perform its obligations under the Notes, this Indenture or any
other Transaction Document.
Section 3.16 Amendments of Trust Agreement. The Issuer shall not agree to
any amendment to Section 11.01 of the Trust Agreement to eliminate the
requirements thereunder that the Indenture Trustee or the Holders of the Notes
consent to amendments thereto as provided therein.
Section 3.17 Removal of Administrator. So long as any Notes are issued and
outstanding, the Issuer shall not remove the Administrator without cause unless
the Rating Agency Condition shall have been satisfied in connection with such
removal.
Section 3.18 Representations and Warranties of Issuer. The Issuer
represents and warrants as follows:
(a) Power and Authority. It has full power, authority and legal right to
execute, deliver and perform its obligations as Issuer under this Indenture, the
Pooling and Servicing Agreement, the Notes, the Cash Collateral Account
Agreement, the Administration Agreement, the Class A-2 Swap Agreement and the
Class A-3 Swap Agreement (the foregoing documents, the "Issuer Documents").
(b) Due Authorization; Binding Obligation. The execution and delivery of
the Issuer Documents and the consummation of the transactions provided for
therein have been duly authorized by all necessary action on its part. Issuer
Documents constitute the legal, valid and binding obligation of the Issuer
enforceable in accordance with their terms, except as enforcement of such terms
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and by the availability of equitable
remedies.
(c) No Conflict. The execution and delivery of the Issuer Documents, the
performance of the transactions contemplated thereby and the fulfillment of the
terms thereof will not conflict with, result in any breach of any of the
materials terms and provisions of, or constitute (with or without notice or
lapse of time or both) a default under, any indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which the Issuer is a party or
by which it or any of its property is bound.
(d) No Violation. The execution and delivery of the Issuer Documents, the
performance of the transactions contemplated thereby and the fulfillment of the
terms thereof
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will not conflict with or violate, in any material respect, any Requirements
of Law applicable to the Issuer.
(e) All Consents Required. All approvals, authorizations, consents, orders
or other actions of any Person or any Governmental Authority required in
connection with the execution and delivery of the Issuer Documents, the
performance of the transactions contemplated thereby and the fulfillment of the
terms thereof have been obtained.
(f) Location. The Issuer has its chief executive office and place of
business (as such terms are used in Article 9 of the UCC) in Millsboro,
Delaware. The Issuer agrees that it will not change the location of such office
to a location outside of Millsboro, Delaware, without at least thirty (30) days
prior written notice to Financial, the Servicer, the Indenture Trustee and the
Rating Agencies.
Section 3.19 Enforcement of Class A-2 Swap Agreement and Class A-3 Swap
Agreement. The Issuer will maintain the Class A-2 Swap Agreement and the Class
A-3 Swap Agreement and will diligently enforce its rights thereunder and will
not voluntarily consent to or permit any rescission of or, except as permitted
by Section 11.20 hereof, consent to any amendment to or otherwise take any
action under or in connection with the Class A-2 Swap Agreement or the Class A-3
Swap Agreement which in any manner will adversely affect the rights of the
Holders of the Class A-2 or Class A-3 Notes from time to time.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.01, 3.03, 3.04, 3.05,
3.07, 3.08, 3.10, 3.12, 3.13, 3.15 and 3.16, (v) the rights, obligations and
immunities of the Indenture Trustee hereunder (including the rights of the
Indenture Trustee under Article VI and the obligations of the Indenture Trustee
under Section 4.02) and (vi) the rights of Noteholders as beneficiaries hereof
with respect to the property so deposited with the Indenture Trustee payable to
all or any of them, and the Indenture Trustee, on demand of and at the expense
of the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes, when
(A) either
1. all Notes theretofore authenticated and delivered (other than
(i) Notes that have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 2.05 and (ii) Notes for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 3.03) have been
delivered to the Indenture Trustee for cancellation; or
2. all Notes not theretofore delivered to the Indenture Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at the applicable Maturity Date
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving of notice
of redemption by the Indenture Trustee in the name, and at the expense, of
the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be irrevocably deposited with the Indenture Trustee
cash or direct obligations of or obligations guaranteed by the United
States (which will mature prior to the date such amounts are payable), in
trust in an Eligible Deposit Account (which shall be the Collection Account
or Note Distribution Account) for such purpose, in an amount sufficient to
pay and discharge the entire indebtedness on such Note not theretofore
delivered to the Indenture Trustee for cancellation when due to the final
scheduled Payment Date or Redemption Date (if Notes shall have been called
for redemption pursuant to Section 10.01(a)), as the case may be;
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(B) the Issuer has paid or performed or caused to be paid or
performed all amounts and obligations which the Issuer may owe to or on
behalf of the Indenture Trustee for the benefit of the Noteholders under
this Indenture or the Notes;
(C) all amounts payable to the Class A-2 Swap Counterparty under
the Class A-2 Swap Agreement have been paid;
(D) all amounts payable to the Class A-3 Swap Counterparty under
the Class A-3 Swap Agreement have been paid; and
(E) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel and (if required by the TIA
or the Indenture Trustee) an Independent Certificate from a firm of
certified public accountants, each meeting the applicable requirements of
Section 11.01(a) and, subject to Section 11.02, stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with and the Rating Agency Condition has
been satisfied.
Section 4.02 Application of Trust Money. All moneys deposited with the
Indenture Trustee pursuant to Section 4.01 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Holders of the particular Notes for the payment or
redemption of which such moneys have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest; but such
moneys need not be segregated from other funds except to the extent required
herein or in the Pooling and Servicing Agreement or required by law.
Section 4.03 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all moneys then held by any Paying Agent other than the Indenture Trustee under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer, be paid to the Indenture Trustee to be held and applied according
to Section 3.03 and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
Section 4.04 Release of Collateral. The Indenture Trustee shall
release property from the lien of this Indenture only upon receipt of an Issuer
Request accompanied by an Officer's Certificate and an Opinion of Counsel and
Independent Certificates in accordance with TIA 'SS''SS' 314(c) and 314(d)(1) or
an Opinion of Counsel in lieu of such Independent Certificates to the effect
that the TIA does not require any such Independent Certificates.
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ARTICLE FIVE
REMEDIES
Section 5.01 Events of Default.
"Events of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) failure to pay on any Payment Date the full amount of accrued
interest on any Note, which failure continues unremedied for five (5) or more
calendar days after such Payment Date, provided that a default in the payment of
interest on the Class A-2 or Class A-3 Notes due entirely to the failure of the
respective Class A-2 or Class A-3 Swap Counterparty to make a required payment
under the respective Class A-2 or Class A-3 Swap Agreement shall not constitute
a default under this clause;
(b) failure to pay the then outstanding principal amount of any Note,
if any, on its related Maturity Date; except that any failure to pay the then
outstanding principal amount of any Class A-2a Note on the Class A-2a Maturity
Date shall not be an Event of Default, but shall be a "Class A-2a Event of
Default" (provided that failure to pay the Class A-2a Notes on the Class A-2b
Maturity Date shall constitute an Event of Default);
(c) failure on the part of the Issuer or the Trust Depositor to
observe or perform any covenants or agreements of such entity set forth in the
Pooling and Servicing Agreement or the Indenture, which failure has a material
adverse effect on the Noteholders and which continues unremedied for a period of
sixty (60) calendar days after written notice;
(d) any representation or warranty made by the Issuer or the Trust
Depositor in the Pooling and Servicing Agreement or the Indenture or any
information required to be given by the Trust Depositor to the Indenture Trustee
to identify the Contracts proves to have been incorrect in any material respect
when made and continues to be incorrect in any material respect for a period of
(sixty) 60 days after written notice and as a result of which the interests of
the Noteholders are materially and adversely affected; provided, however, that
an Event of Default shall not be deemed to occur thereunder if Financial has
repurchased the related Contracts through the Trust Depositor during such period
in accordance with the provisions of the Pooling and Servicing Agreement and the
Purchase and Sale Agreement;
(e) the occurrence of an Insolvency Event relating to the Trust
Depositor or the Issuer; or
(f) the Issuer becomes an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
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Section 5.02 Rights Upon Event of Default; Notice.
If an Event of Default referred to in subparagraph (e) of Section 5.01
has occurred, then and in every such case the unpaid principal of the Notes,
together with interest accrued but unpaid thereon, and all other amounts due to
the Noteholders under the Indenture, shall immediately and without further act
become due and payable. If any other Event of Default has occurred, the Required
Holders by written notice to the Indenture Trustee may require the Indenture
Trustee to, or the Indenture Trustee may without such notice, declare by written
notice to the Issuer (with a copy to the Trust Depositor and each Rating Agency)
that the unpaid principal of the Notes together with interest accrued but unpaid
thereon, and all other amounts due to the Noteholder under the Indenture shall
immediately and without further act become due and payable.
In the case of any event described in clause (a), (b), (c), (d) or (f)
above, an Event of Default with respect to the Notes shall not be deemed to have
occurred if the Required Holders waive such Event of Default pursuant to a
written notice to the Issuer, Indenture Trustee and the Servicer. In the event a
Responsible Officer of the Indenture Trustee has actual knowledge of an Event of
Default, it shall give written notice thereof to the Trust Depositor, Financial,
the Servicer, the Owner Trustee and the Rating Agencies. The Indenture Trustee
shall not be deemed to have notice of an Event of Default unless it shall have
received a written notice pursuant to this Section 5.02 or a Responsible Officer
has actual knowledge of an Event of Default.
If an Insolvency Event relating to the Trust Depositor occurs,
pursuant to the Trust Agreement and the Pooling and Servicing Agreement, on the
day of such Insolvency Event, the Trust Depositor shall promptly give notice in
writing to the Indenture Trustee of the Insolvency Event, the Indenture Trustee
shall, following receipt of such notice, notify the Noteholders in writing of
such Insolvency Event and the Indenture Trustee shall, unless notified to the
contrary in writing by the Required Holders within 30 days after the Indenture
Trustee's so notifying them, promptly act pursuant to and in accordance with the
terms thereof to sell, dispose of or otherwise liquidate the Collateral in a
commercially reasonable manner and on commercially reasonable terms. The
proceeds from any such sale, disposition or liquidation of Contracts shall be
deposited in the Collection Account and allocated as described in the Pooling
and Servicing Agreement and herein.
Promptly following its receipt of notice hereunder or under any other
Transaction Document of any Event of Default, the Indenture Trustee shall send a
copy thereof to the Issuer, the Class A-2 Swap Counterparty, the Class A-3 Swap
Counterparty and each Rating Agency.
Section 5.03 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee; Authority of Indenture Trustee.
(a) The Issuer covenants that if the Notes are accelerated following
the occurrence of an Event of Default, the Issuer will, upon demand of the
Indenture Trustee, pay to it, for the benefit of the Holders of the Notes, the
whole amount then due and payable on such Notes for principal and interest, with
interest upon the overdue principal, and, to the extent
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payment at such rate of interest shall be legally enforceable, upon overdue
installments of interest, at the applicable Interest Rate and in addition
thereto such further amount as shall be sufficient to cover costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Indenture Trustee and its agents and counsel.
(b) The Indenture Trustee following the occurrence of an Event of
Default, shall have full right, power and authority to take, or defer from
taking, any and all acts with respect to the administration, maintenance or
disposition of the Collateral.
(c) If an Event of Default occurs, the Indenture Trustee may in its
discretion (except as provided in Section 5.03(d)), and shall at the direction
of the Required Holders, proceed to protect and enforce its rights and the
rights of the Noteholders, by appropriate Proceedings to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
(d) Notwithstanding anything to the contrary contained in this
Indenture if an Event of Default shall have occurred, and if the Issuer fails to
perform its obligations under Section 10.01(b) when and as due, the Indenture
Trustee may in its discretion, and shall at the direction of the Required
Holders, proceed to protect and enforce its rights and the rights of the
Noteholders by such appropriate Proceedings to protect and enforce any such
rights, whether for specific performance of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy or legal or equitable right vested in the Indenture
Trustee by this Indenture or by law, provided that the Indenture Trustee shall
only be entitled to take any such actions to the extent such actions (i) are
taken only to enforce the Issuer's obligations to redeem the principal amount of
Notes, and (ii) are taken only against the Collateral, any investments therein
and any proceeds thereof.
(e) In case there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Collateral, Proceedings under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture
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Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and
each predecessor Indenture Trustee, except as a result of negligence or bad
faith) and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of Notes in any election of a trustee, a
standby trustee or Person performing similar functions in any such
Proceedings;
(iii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute all amounts received
with respect to the claims of the Noteholders and of the Indenture Trustee
on their behalf; and
(iv) to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Indenture Trustee or the Holders of Notes allowed in any judicial
proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Noteholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad faith.
(f) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
compensation affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(g) All rights of action and of asserting claims under this Indenture
or under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Notes.
(h) In any Proceedings brought by the Indenture Trustee (including any
Proceedings involving the interpretation of any provision of this Indenture),
the Indenture Trustee
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shall be held to represent all of the Holders of the Notes, and it shall not be
necessary to make any Noteholder a party to any such proceedings.
Section 5.04 Remedies. If an Event of Default shall have occurred the
Indenture Trustee (subject to Section 5.05) may, and shall (subject to Section
6.02) if so directed by the Required Holders in writing:
(a) institute Proceedings in its own name and as or on behalf of a
trustee of an express trust for the collection of all amounts then payable on
the Notes or under this Indenture with respect thereto, whether by declaration
or otherwise, enforce any judgment obtained, and collect from the Issuer and any
other obligor upon such Notes moneys adjudged due;
(b) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Collateral;
(c) exercise any remedies of a secured party under the UCC and any
other remedy available to the Indenture Trustee and take any other appropriate
action to protect and enforce the rights and remedies of the Indenture Trustee
on behalf of the Noteholders under this Indenture or the Notes; and
(d) direct the Owner Trustee to sell the Collateral or any portion
thereof or rights or interest therein, at one or more public or private sales
called and conducted in any manner permitted by law; provided, however, that the
Indenture Trustee may not sell or otherwise liquidate the Collateral following
an Event of Default, other than an Event of Default described in Section 5.01(a)
or (b), unless (A) the Holders of 100% of the Principal Amount of the Notes
consent thereto, (B) the proceeds of such sale or liquidation distributable to
the Noteholders are sufficient to discharge in full all amounts then due and
unpaid upon such Notes for principal and interest and all amounts due under the
Class A-2 Swap Agreement and the Class A-3 Swap Agreement or (C) the Indenture
Trustee determines that the Collateral will not continue to provide sufficient
funds for the payment of principal of and interest on the Notes as they would
have become due if the Notes had not been declared due and payable, and the
Indenture Trustee provides prior written notice to each Rating Agency and
obtains the consent of the Required Holders. In determining such sufficiency or
insufficiency with respect to clauses (B) and (C), the Indenture Trustee may,
but need not, obtain at the expense of the Servicer and rely upon an opinion of
an Independent investment banking or an Independent Certificate from an
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Collateral for such purpose; provided,
however, upon the occurrence of an Event of Default described in Section
5.01(e), caused solely from an event described in such subparagraph occurring
with respect to the Trust Depositor, the Collateral will be liquidated by the
Indenture Trustee and the Trust will be terminated 90 days after the date of
such Insolvency Event, unless, before the end of such 90-day period, the
Indenture Trustee shall have received written instructions from the Required
Holders, to the effect that such Required Holders disapprove of the liquidation
of such Collateral and termination of such Trust.
Section 5.05 Optional Preservation of the Contracts. Following an
Event of Default and except as otherwise provided above, the Indenture Trustee
may, but need not, at the
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expense of the Servicer elect to maintain possession of the Collateral. It is
the desire of the parties hereto and the Noteholders that there be at all times
sufficient funds for the payment of principal and interest on the Notes. In
determining whether to maintain possession of the Collateral, the Indenture
Trustee may, but need not, obtain at the expense of the Servicer and rely upon
an opinion of an Independent investment banking or Independent Certificate of an
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Collateral for such purpose.
Section 5.06 Priorities.
(a) If the Indenture Trustee collects any money or property pursuant
to this Article Five, it shall remit the money or property in the order and
priority set forth in Section 7.05(c) of the Pooling and Servicing Agreement.
(b) The Indenture Trustee may fix a record date and payment date for
any payment to Noteholders pursuant to this Section. At least 15 days before
such record date, the Issuer shall mail to each Noteholder and the Indenture
Trustee a notice that states the record date, the payment date and the amount to
be paid.
Section 5.07 Limitation of Suits. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (and in all events subject to Section 11.16):
(a) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding Amount of the
Notes have made written request to the Indenture Trustee to institute such
Proceeding in respect of such Event of Default in its own name as Indenture
Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in complying with such request;
(d) the Indenture Trustee for sixty (60) days after its receipt of
such notice, request and offer of indemnity has failed to institute such
Proceedings; and
(e) no direction inconsistent with such written request has been given
to the Indenture Trustee during such sixty (60) day period by the Holders of a
majority of the Outstanding Amount of the Notes, voting together as a single
class.
It is understood and intended that no one or more Holders of Notes
shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Notes or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except in
the manner herein provided.
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In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of Notes,
each representing less than a majority of the Outstanding Amount of the Notes,
the Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
Section 5.08 Unconditional Rights of Noteholders to Receive Principal
and Interest. Notwithstanding any other provisions in the Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest on such Note on or after the
respective due dates thereof expressed in such Note or in this Indenture (or, in
the case of redemption, on or after the Redemption Date) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
Section 5.09 Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Indenture Trustee
and the Noteholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article Five or by
law to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
Section 5.12 Control by Noteholders. The Required Holders shall have
the right to direct the time, method and place of conducting any Proceeding for
any remedy available to the Indenture Trustee with respect to the Notes or
exercising any trust or power conferred on the Indenture Trustee (in all events
subject to Section 6.02(f)); provided that:
(a) such direction shall not be in conflict with any rule of law or
with any other provision of this Indenture;
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(b) subject to the terms of Section 5.04, any direction to the
Indenture Trustee to sell or liquidate the Collateral shall be by the Holders of
Notes representing not less than 100% of the Outstanding Amount of the Notes;
(c) if the conditions set forth in Section 5.05 have been satisfied
and the Indenture Trustee elects to retain the Collateral pursuant to such
Section, then any direction to the Indenture Trustee by Holders of Notes
representing less than 100% of the Outstanding Amount of the Notes to sell or
liquidate the Collateral shall be of no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this Section,
subject to Section 6.01, the Indenture Trustee need not take any action that it
determines might involve it in liability.
Section 5.13 Waiver of Past Defaults. In the case of any waiver of an
Event of Default, the Issuer, the Indenture Trustee and the Holders of the Notes
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other Event of Default or
impair any right consequent thereto. Upon any such waiver, such Event of Default
shall cease to exist and be deemed to have been cured and not to have occurred,
for every purpose of this Indenture.
Section 5.14 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (i) any suit instituted by the
Indenture Trustee, (ii) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes or (iii) any suit instituted by any Noteholder
for the enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture (or,
in the case of redemption, on or after the Redemption Date).
Section 5.15 Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantages of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
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Section 5.16 Action on Notes. The Indenture Trustee's right to seek
and recover judgment on the Notes or under this Indenture shall not be affected
by the seeking, obtaining or application of any other relief under or with
respect to this Indenture. Neither the lien of this Indenture nor any rights or
remedies of the Indenture Trustee or the Noteholders shall be impaired by the
recovery of any judgment by the Indenture Trustee against the Issuer or by the
levy of any execution under such judgment upon any portion of the Collateral or
upon any of the assets of the Issuer. Any money or property collected by the
Indenture Trustee under this Article V shall be applied in accordance with
Section 7.05(c) of the Pooling and Servicing Agreement.
Section 5.17 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so
and at the Administrator's expense, the Issuer shall take all such lawful action
as the Indenture Trustee may request to compel or secure the performance and
observance by the Trust Depositor and the Servicer as applicable, of each of
their obligations to the Issuer under or in connection with the Pooling and
Servicing Agreement in accordance with the terms thereof, and to exercise any
and all rights, remedies, powers and privileges lawfully available to the Issuer
under or in connection with the Pooling and Servicing Agreement to the extent
and in the manner directed by the Indenture Trustee, including the transmission
of notices of default on the part of the Trust Depositor or the Servicer
thereunder and the institution of legal or administrative actions or proceedings
to compel or secure performance by the Trust Depositor or the Servicer of each
of their obligations under the Pooling and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing, including facsimile) of the Required Holders shall, exercise all
rights, remedies, powers, privileges and claims of the Issuer against the Trust
Depositor or the Servicer under or in connection with the Pooling and Servicing
Agreement, including the right or power to take any action to compel or secure
performance or observance by the Trust Depositor or the Servicer of each of
their obligations to the Issuer thereunder and to give any consent, request,
notice, direction, approval, extension or waiver under the Pooling and Servicing
Agreement, and any right of the Issuer to take such action shall be suspended.
Section 5.18. Class A-2a Events of Default.
(a) If a Class A-2a Event of Default shall have occurred, the unpaid
Principal Amount of the Class A-2a Notes shall automatically become due and
payable at par together with all accrued and unpaid interest thereon, without
presentment, demand, protest or notice of any kind, all of which are hereby
waived by the Issuer.
(b) If a Class A-2a Event of Default occurs and is continuing, the
Indenture Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Issuer for the whole amount of principal
and interest remaining unpaid. In exercising its rights and obligations under
this Section 5.18, the Indenture Trustee, if directed in writing by all of the
Class A-2a Noteholders, shall sell the rights to receive the interest and
principal due to the Class A-2a Noteholders pursuant to Section 7.05 of the
Pooling and Servicing Agreement to
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a third party and neither the Indenture Trustee nor any Class A-2a Noteholder
shall have any rights against the Issuer other than such sale.
(c) Any money collected by the Indenture Trustee pursuant to this
Section following such a sale following a Class A-2a Event of Default, and any
moneys that may then be held or thereafter received by the Indenture Trustee for
the benefit of the Class A-2a Notes shall be applied in the following order, at
the date or dates fixed by the Indenture Trustee, upon representation of the
Class A-2a Notes and surrender thereof:
first to the payment of all costs and expenses of collection
incurred by the Indenture Trustee and the Class A-2a Noteholders (including the
reasonable fees and expenses of any counsel to the Indenture Trustee and the
Class A-2a Noteholders); and
second (i) to the payment of all accrued and unpaid interest on the
Principal Amount of the Class A-2a Notes, and (ii) to the payment of the
Principal Amount of the Class A-2a Notes.
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ARTICLE SIX
THE INDENTURE TRUSTEE
Section 6.01 Duties of Indenture Trustee.
(a) If an Event of Default has occurred, the Indenture Trustee shall
exercise the rights and powers vested in it by this Indenture and in the same
degree of care and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of such person's own affairs.
(b) Except upon and after the occurrence of an Event of Default of
which a Responsible Officer of the Indenture Trustee has actual knowledge.
(i) the Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture against
the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the factual statements
and the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; however, the Indenture Trustee shall
examine the certificates and opinions to determine whether or not they
conform on their face to the requirements of this Indenture and the other
Transaction Documents to which the Indenture Trustee is a party. If any
such instrument is found not to conform in any material respect to the
requirements of this Indenture or the other Transaction Documents to which
the Indenture Trustee is a party, the Indenture Trustee shall notify the
Noteholders of such instrument in the event that the Indenture Trustee,
after so requesting, does not receive a satisfactorily corrected
instrument.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of Section 6.01(b);
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or other officers of
the Indenture Trustee unless it is proved that the Indenture Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.12 or any written direction
of the Required Holders.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to paragraphs (a), (b) and (c) of this Section.
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(e) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing with
the Issuer.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms of
this Indenture or the Pooling and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayments
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) The Indenture Trustee shall have no discretionary duties other
than those explicitly set forth in this Indenture.
(i) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this section and to the provisions of the
TIA.
Without limiting the generality of this Section 6.01, the
Indenture Trustee shall have no duty (A) to see to any recording, filing,
or depositing of this Indenture or any Transaction Document or any
financing statement or continuation statement evidencing a security
interest, or to see to the maintenance of any such recording or filing or
depositing or to any rerecording, refiling or redepositing of any thereof,
(B) to see to any insurance, or (C) to see to the payment or discharge of
any tax, assessment, or other governmental charge or any lien or
encumbrance of any kind owing with respect to, assessed or levied against,
any part of the Collateral.
Section 6.02 Rights of Indenture Trustee.
(a) The Indenture Trustee may rely on any document believed by it to
be genuine and to have been signed or presented by the proper person. The
Indenture Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate (with respect to factual matters), advice of
counsel or an Opinion of Counsel, as applicable. The Indenture Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officer's Certificate, advice of counsel or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of any such
agent, attorney or custodian appointed by the Indenture Trustee with due care.
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(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
(f) The Indenture Trustee shall, upon the occurrence of an Event of
Default (that has not been cured), exercise the rights and powers vested in it
by this Indenture in a manner consistent with Section 6.01; provided, however,
that the Indenture Trustee shall be under no obligation to institute, conduct or
defend any litigation under this Indenture or in relation to this Indenture, at
the request, order or direction of any of the Holders of Notes, pursuant to the
provisions of this Indenture, unless such Holders of Notes shall have offered to
the Indenture Trustee reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred therein or thereby.
(g) The Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless so requested by the Holders of Notes evidencing
not less than 25% of the Outstanding Amount of the Notes; provided, however,
that if the payment within a reasonable time to the Indenture Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Indenture Trustee, not reasonably
assured to the Indenture Trustee by the security afforded to it by the terms of
this Indenture or the Pooling and Servicing Agreement, the Indenture Trustee may
require reasonable indemnity against such cost, expense or liability as a
condition to so proceeding; the reasonable expense of every such examination
shall be paid by the Person making such request, or, if paid by the Indenture
Trustee, shall be reimbursed by the Person making such request upon demand.
(h) The right of the Indenture Trustee to perform any discretionary
act enumerated in this Indenture shall not be construed as a duty, and the
Indenture Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of such act.
Section 6.03 Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or its Affiliates with the same
rights it would have if it were not Indenture Trustee. Any Paying Agent, Note
Registrar, co-registrar or co-paying agent may do the same with like rights.
However, the Indenture Trustee is required to comply with Section 6.11.
Section 6.04 Indenture Trustee's Disclaimer. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture, the Collateral or the Notes, it shall not be
accountable for the Issuer's use of the proceeds from the
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Notes, and it shall not be responsible for any statement of the Issuer in the
Transaction Documents or in any document issued in connection with the sale of
the Notes or in the Notes other than the Indenture Trustee's certificate of
authentication.
Section 6.05 Notice of Defaults. If a Default occurs and if it is
known to a Responsible Officer of the Indenture Trustee, the Indenture Trustee
shall mail to each Noteholder notice of the Default within ninety (90) days
after it occurs. A Default shall be known to a Responsible Officer of the
Indenture Trustee if a Responsible Officer of the Indenture Trustee has actual
knowledge of such Default or has received notice thereof pursuant to Section
5.02. In the absence of such knowledge or notice, the Indenture Trustee may
conclusively assume that there is no default. Except in the case of an Event of
Default in payment of principal of or interest on any Note (including payments
pursuant to the redemption of such Notes), the Indenture Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of Noteholders.
Section 6.06 Reports by Indenture Trustee to Holders. The Indenture
Trustee shall deliver to each Noteholder such information, including without
limitation, IRS Form 1099, as may be required to enable such holder to prepare
its federal and state income tax returns.
Section 6.07 Compensation and Indemnity. The Issuer shall pay or shall
cause the Administrator or Servicer to pay to the Indenture Trustee from time to
time reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall or shall cause the Administrator or Servicer to
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture Trustee's
agents, counsel, accountants and experts. The Issuer shall indemnify or shall
cause the Administrator or Servicer to indemnify the Indenture Trustee and its
officers, directors, employees and agents against any and all loss, liability or
expense (including attorneys' fees) incurred by it in connection with the
administration of this trust and the performance of its duties hereunder and
under the other Transaction Documents. The Indenture Trustee shall notify the
Issuer, the Servicer and the Administrator promptly of any claim for which it
may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer,
the Servicer and the Administrator shall not relieve the Issuer or the
Administrator of its obligations hereunder. The Issuer shall defend or shall
cause the Administrator or Servicer to defend any such claim, and the Indenture
Trustee may have separate counsel and the Issuer shall pay or shall cause the
Administrator or Servicer to pay the fees and expenses of such counsel. Neither
the Issuer nor the Administrator or Servicer need reimburse any expense or
indemnify against any loss, liability or expense incurred by the Indenture
Trustee through the Indenture Trustee's own willful misconduct, negligence or
bad faith. The parties hereto agree and acknowledge that, notwithstanding
anything to the contrary, all payments required to be made pursuant to this
Section 6.07 shall not be made from the Trust Assets; provided, however, if an
Event of Default has occurred, payments required to be made pursuant to this
Section 6.07, to the extent unpaid, shall be paid in accordance with Section
5.06; provided, further, that any payments required to be made pursuant to this
Section 6.07, if unpaid, shall not constitute a general recourse claim against
the Issuer. Anything in this Indenture or any
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other Transaction Documents to the contrary notwithstanding, in no event shall
the Indenture Trustee be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including but not limited to lost profits), even
if the Indenture Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
The Issuer's, Servicer's and Administrator's payment obligations to
the Indenture Trustee pursuant to this Section shall survive the resignation and
removal of the Indenture Trustee and the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of a Default specified in
Section 5.01(e) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar law.
Section 6.08 Replacement of Indenture Trustee. The Indenture Trustee
may resign at any time by so notifying the Issuer and the Servicer. The Issuer
may remove the Indenture Trustee if:
(a) the Indenture Trustee fails to comply with Section 6.11;
(b) a court having jurisdiction in the premises in respect of the
Indenture Trustee in an involuntary case or proceeding under federal or state
banking or bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law, shall
have entered a decree or order granting relief or appointing a receiver,
liquidator, assignee, custodian, trustee, conservator, sequestrator (or similar
official) for the Indenture Trustee or for any substantial part of the Indenture
Trustee's property, or ordering the winding-up or liquidation of the Indenture
Trustee's affairs, provided any such decree or order shall have continued
unstayed and in effect for a period of thirty (30) consecutive days;
(c) the Indenture Trustee commences a voluntary case under any federal
or state banking or bankruptcy laws, as now or hereafter constituted, or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, conservator, sequestrator or other
similar official for the Indenture Trustee or for any substantial part of the
Indenture Trustee's property, or makes any assignment for the benefit of
creditors or fails generally to pay its debts as such debts become due or takes
any corporate action in furtherance of any of the foregoing; or
(d) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed, the Issuer shall
promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee and to the Issuer. Thereupon
the resignation or removal of the retiring Indenture Trustee shall become
effective, and the successor Indenture Trustee shall have all the rights, powers
and duties of the Indenture Trustee under this Indenture. The Issuer or the
successor Indenture Trustee shall mail a notice of its succession to Noteholders
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and the Rating Agencies. The retiring Indenture Trustee shall promptly transfer
all property held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Holders of a majority in Outstanding Amount
of the Notes may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Any resignation or removal of the Indenture Trustee and appointment of
a successor Indenture Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Indenture Trustee pursuant to this Section and payment of all fees and expenses
owed to the outgoing Indenture Trustee. Notwithstanding the replacement of the
Indenture Trustee pursuant to this Section, the retiring Indenture Trustee shall
be entitled to payment or reimbursement of such amounts as such Person is
entitled pursuant to Section 6.07.
Section 6.09 Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee; provided, that
such corporation or banking association shall be otherwise qualified and
eligible under Section 6.11.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor Indenture Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have. The Rating
Agencies will be notified of any such merger or consolidation.
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.
(a) Notwithstanding any other provision of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Collateral may at the time be located, the Indenture
Trustee and the Administrator acting jointly shall have the power and may
execute and deliver all instruments to appoint one or more Persons to act as a
co-Indenture Trustee or co-Indenture Trustees, jointly with the Indenture
Trustee, or separate
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Indenture Trustee or separate Indenture Trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity and for the
benefit of the Noteholders, such title to the Collateral, or any part hereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Indenture Trustee and the Administrator
may consider necessary or desirable. If the Administrator shall not have joined
in such appointment within fifteen (15) days after the receipt by it of a
request so to do, the Indenture Trustee alone shall have the power to make such
appointment. No co-Indenture Trustee or separate Indenture Trustee hereunder
shall be required to meet the terms of eligibility of a successor Indenture
Trustee under Section 6.11 and no notice to Noteholders of the appointment of
any co-Indenture Trustee or separate Indenture Trustee shall be required under
Section 6.08.
(b) Every separate Indenture Trustee and co-Indenture Trustee shall,
to the extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee and such separate Indenture
Trustee or co-Indenture Trustee jointly (it being understood that such
separate Indenture Trustee or co-Indenture Trustee is not authorized to act
separately without the Indenture Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed the Indenture Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate Indenture Trustee or co-Indenture
Trustee, but solely at the direction of the Indenture Trustee;
(ii) no Indenture Trustee hereunder shall be personally liable
by reason of any act or omission of any other Indenture Trustee hereunder;
and
(iii) the Indenture Trustee and the Administrator may at any time
accept the resignation of or remove any separate Indenture Trustee or
co-Indenture Trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate
Indenture Trustees and co-Indenture Trustees, as effectively as if given to each
of them. Every instrument appointing any separate Indenture Trustee or
co-Indenture Trustee shall refer to this Agreement and the conditions of this
Article. Each separate Indenture Trustee and co-Indenture Trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of co-appointment, either jointly with the Indenture
Trustee or separately, as may be provided therein, subject to all the provisions
of this Indenture, specifically including every provision of this Indenture
relating to the conduct of, affecting the liability of or affording protection
to, the Indenture Trustee. Every such instrument shall be filed with the
Indenture Trustee and a copy thereof given to the Administrator.
(d) Any separate Indenture Trustee or co-Indenture Trustee may at any
time constitute the Indenture Trustee, its agent or attorney-in-fact with full
power and authority, to the
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extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate Indenture Trustee or
co-Indenture Trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Indenture Trustee, to the extent permitted by law,
without the appointment of a new or successor Indenture Trustee. Notwithstanding
anything to the contrary in this Indenture, the appointment of any separate
Indenture Trustee or co-Indenture Trustee shall not relieve the Indenture
Trustee of its obligations and duties under this Indenture.
Section 6.11 Eligibility. The Indenture Trustee shall at all times
satisfy the requirements of TIA 'SS' 310(a). The Indenture Trustee hereunder
shall at all times be a financial institution organized and doing business under
the laws of the United States of America or any state, authorized under such
laws to exercise corporate trust powers, whose long term unsecured debt is rated
at least Baa3 by Moody's and shall have a combined capital and surplus of at
least $50,000,000 or shall be a member of a bank holding system the aggregate
combined capital and surplus of which is $50,000,000 and subject to supervision
or examination by federal or state authority, provided that the Trustee's
separate capital and surplus shall at all times be at least the amount required
by Section 310(a)(2) of the TIA. If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of a supervising or
examining authority, then for the purposes of this Section 6.11, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.11, the Trustee shall resign immediately in the
manner and with the effect specified in Section 6.08. The Indenture Trustee
shall comply with TIA 'SS' 310(b); provided, however, that there shall be
excluded from the operation of TIA 'SS' 310(b)(1) any indenture or indentures
under which other securities of the Issuer are outstanding if the requirements
for such exclusion set forth in TIA 'SS' 310(b)(1) are met.
Section 6.12 Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA 'SS' 311(a), excluding any creditor
relationship listed in TIA 'SS' 311(b). An Indenture Trustee who has resigned or
been removed shall be subject to TIA 'SS' 311(a) to the extent indicated.
Section 6.13 Representations and Warranties of Indenture Trustee. The
Indenture Trustee in its individual capacity and as Indenture Trustee represents
and warrants as follows:
(a) Organization and Corporate Power. It is a duly organized and
validly existing New York banking corporation in good standing under the laws of
each jurisdiction where its business so requires. It has full corporate power,
authority and legal right to execute, deliver and perform its obligations as
Indenture Trustee under this Indenture, the Administration Agreement and Cash
Collateral Account Agreement (the foregoing documents, the "Indenture Trustee
Documents") and to authenticate the Notes.
(b) Due Authorization; Binding Obligation. The execution and delivery
of the Indenture Trustee Documents, the consummation of the transactions
provided for therein and the authentication of the Notes have been duly
authorized by all necessary corporate action on its
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part, either in its individual capacity or as Indenture Trustee, as the case may
be. The Indenture Trustee Documents constitute the legal, valid and binding
obligation of the Indenture Trustee enforceable in accordance with their terms,
except as enforcement may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditor's rights generally and by the availability
of equitable remedies.
(c) No Conflict. The execution and delivery of the Indenture Trustee
Documents, the performance of the transactions contemplated thereby and the
fulfillment of the terms thereof (including the authentication of the Notes),
will not conflict with, result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or lapse of time or both) a
default under, any indenture, contract, agreement, mortgage, deed or trust, or
other instrument to which the Indenture Trustee is a party or by which it or any
of its property is bound.
(d) No Violation. The execution and delivery of the Indenture Trustee
Documents, the performance of the transactions contemplated thereby and the
fulfillment of the terms thereof (including the authentication of the Notes),
will not conflict with or violate, in any material respect, any Requirements of
Law applicable to the Indenture Trustee.
(e) All Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or any Governmental Authority applicable
to the Indenture Trustee, required in connection with the execution and delivery
of the Indenture Trustee Documents, the performance by the Indenture Trustee of
the transactions contemplated thereby and the fulfillment by the Indenture
Trustee of the terms thereof (including the authentication of the Notes), have
been obtained.
(f) Validity, Etc. Each Indenture Trustee Document constitutes a
legal, valid and binding obligation of the Indenture Trustee, enforceable
against the Indenture Trustee in accordance with its terms, except as such
enforceability may be limited by Insolvency Laws and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity) or by an implied covenant of good
faith and fair dealing.
Section 6.14 Execution of Transaction Documents. The Issuer hereby
requests and the Indenture Trustee agrees to execute and deliver the Indenture
Trustee Documents.
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ARTICLE SEVEN
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01 Issuer to Furnish Indenture Trustee Names and Addresses
of Noteholders. The Issuer will furnish or cause to be furnished to the
Indenture Trustee (i) not more than five days after the earlier of (a) each
Record Date and (b) three months after the last Record Date, a list, in such
form as the Indenture Trustee may reasonably require, of the names and addresses
of the Noteholders as of such Record Date and (ii) at such other times as the
Indenture Trustee may request in writing, within (thirty) 30 days after receipt
by the Issuer of any such request, a list of similar form and content as of a
date not more than ten days prior to the time such list is furnished; provided,
however, that so long as the Indenture Trustee is the Note Registrar, no such
list shall be required to be furnished.
Section 7.02 Preservation of Information: Communication to
Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Noteholders contained in
the most recent list furnished to the Indenture Trustee as provided in Section
7.01 and the names and addresses of Noteholders received by the Indenture
Trustee in its capacity as Note Registrar and shall otherwise comply with TIA
'SS' 312(a). The Indenture Trustee may destroy any list furnished to it as
provided in such Section 7.01 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA 'SS' 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall
have the protection of TIA 'SS' 312(c).
Section 7.03 Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within fifteen (15) days
after the Issuer or the Trust Depositor is required (if at all) to file the
same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any
of the foregoing as the Commission may from time to time by rules and
regulations prescribe) that the Issuer or Trust Depositor may be required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports with respect
to compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations;
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(iii) supply to the Indenture Trustee (and the Indenture Trustee
shall transmit by mail to all Noteholders described in TIA 'SS' 313(c))
copies of any information, documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) of this Section 7.03(a) and by
rules and regulations prescribed from time to time by the Commission;
(iv) file with the Indenture Trustee reports in compliance with
TIA'SS' 314(a) and TIA 'SS' 314(b).
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
Section 7.04 Reports by Indenture Trustee. If required by TIA
'SS' 313(a), within sixty (60) days after January 31 beginning with January 31,
2001, the Indenture Trustee shall mail to each Noteholder as required by TIA
'SS' 313(c) a brief report dated as of such date that complies with TIA
'SS' 313(a). The Indenture Trustee also shall comply with TIA 'SS' 313(b).
A copy of each report at the time of its mailing to Noteholders shall
be filed by the Indenture Trustee with the Commission and each stock exchange,
if any, on which the Notes are listed. The Issuer shall notify the Indenture
Trustee if and when the Notes are listed on any stock exchange.
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ARTICLE EIGHT
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01 Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture and the
Pooling and Servicing Agreement. The Indenture Trustee shall apply all such
money received by it as provided in this Indenture. Except as otherwise
expressly provided in this Indenture, if any default occurs in the making of any
payment or performance under any agreement or instrument that is part of the
Collateral, the Indenture Trustee may take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate Proceedings. Any such action shall be without prejudice to any
right to claim a Default or Event of Default under this Indenture and any right
to proceed thereafter as provided in Article Five.
Section 8.02 Trust Accounts.
(a) On or prior to the Closing Date, the Indenture Trustee shall
establish and maintain, in the name of the Indenture Trustee, for the benefit of
the Noteholders and the Equity Certificateholder, the Trust Accounts as provided
in Section 7.01 of the Pooling and Servicing Agreement.
(b) The Indenture Trustee agrees that if it does not act as Securities
Intermediary with respect to each of the Trust Accounts and does not have
control of the Trust Accounts as set forth in Section 8-106(e) of the UCC, then
notwithstanding anything else contained herein, the Indenture Trustee agrees
that with respect to each of the Trust Accounts, the Indenture Trustee will
cause each Securities Intermediary establishing such Trust Accounts to enter
into an agreement whereby each such Securities Intermediary agrees that it will
(i) comply with Entitlement Orders relating to such Trust Account issued by the
Indenture Trustee without further consent by the Issuer; (ii) credit all Trust
Account Property or Eligible Investments to the applicable Trust Account; (iii)
treat each item of property credited to such Trust Account as a Financial Asset;
(iv) not accept for credit to any Trust Account any Trust Account Property or
Eligible Investment which is registered in the name of, or payable to the order
of, or specially indorsed to, any person other than the Securities Intermediary
unless it has been indorsed to such Securities Intermediary or is indorsed in
blank and (v) such Securities Intermediary has agreed that it will waive any
right of set-off unrelated to its fees for such Trust Account. The Indenture
Trustee agrees that if it acts as Securities Intermediary with respect to a
Trust Account, it will (i) credit all Trust Account Property or Eligible
Investments to the applicable Trust Account; (ii) treat each item of property
credited to such Trust Account as a Financial Asset; and (iii) not accept for
credit to any Trust Account any Trust Account Property or Eligible Investment
which is registered in the name of, or payable to the order of, or specially
indorsed to, any person other than it unless it has been indorsed to it or is
indorsed in blank.
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(c) On or before each Payment Date, all amounts required to be
disbursed to the Indenture Trustee with respect to the preceding Collection
Period pursuant to Section 7.05 of the Pooling and Servicing Agreement will be
transferred from the Collection Account, Class A-2a Funding Account, Class A
Principal Account and/or the Cash Collateral Account and deposited by the
Indenture Trustee upon receipt to the Note Distribution Account.
(d) On each Payment Date, the Indenture Trustee shall distribute all
amounts on deposit in the Note Distribution Account to Noteholders in respect of
the Notes to the extent of amounts due and unpaid on the Notes for principal and
interest in the order and priority set forth in Section 7.05(b) or (c), as the
case may be, of the Pooling and Servicing Agreement.
(e) On the Class A-2a Maturity Date, prior to distributions pursuant
to Section 7.05(c) of the Pooling and Servicing Agreement, the Indenture Trustee
shall distribute to the Class A-2a Noteholders all amounts on deposit in the
Class A-2a Funding Account (exclusive of Investment Earnings thereon).
(f) If at any time there is a loss of principal on amounts on deposit
in the Class A-2a Funding Account, the Principal Amount of the Class A-2b Notes
shall be reduced by an amount equal to such principal loss. At any time
thereafter, if such loss is subsequently recovered, (i) prior to the Class A-2a
Maturity Date, such amounts shall be held on deposit in the Class A-2a Funding
Account and the Principal Amount of the Class A-2b Notes shall be increased by
such recovery amount, or (ii) on and after the Class A-2a Maturity Date, such
recovery amount shall be applied first, to the Class A-2a Noteholders as a
reduction of principal until the Principal Amount of the Class A-2a Notes has
been reduced to zero and the Principal Amount of the Class A-2b Notes shall be
increased by such recovery amount and then, to the Class A-2b Noteholders
(without any reduction or increase in the Principal Amount of the Class A-2b
Notes); provided, however, that if additional Class A-2b Notes are issued
pursuant to Section 2.14 of this Indenture such amounts shall be distributed to
the original Class A-2b Noteholders as a payment of principal without any
reduction in the Principal Amount of the original Class A-2b Notes.
(g) In the event that the foregoing provisions providing for the
reduction of the Principal Amount of the Class A-2b Notes by an amount equal to
the principal loss in the Class A-2a Funding Account (the "Class A-2a
Shortfall") are not enforced, or are otherwise set aside or disregarded by a
court of competent jurisdiction, the principal balance of the Class A-2b Notes
shall be deemed junior and subordinate, in an amount equal to the Class A-2a
Shortfall, to the claims and rights (including any rights with respect to
interest on such subordinated amount, including post-petition interest, whether
or not allowed as a claim in any bankruptcy or other insolvency proceeding) of
all of the other Notes in right of payment and priority, notwithstanding any
other term or provision of this Indenture or the Class A-2b Notes to the
contrary. To give effect to this subordination, by acceptance of a Class A-2b
Note the holder thereof agrees that, notwithstanding any other term or provision
of the Indenture to the contrary:
(i) during the existence and continuance of a Class A-2a Shortfall,
the holders of the Class A-2b Notes shall not be entitled to receive
any payment or other distribution on account of the Class A-2a
Shortfall, and shall not be entitled to
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exercise any rights of subrogation or reimbursement with respect to
the Class A-2a Shortfall, unless and until all other Notes have been
indefeasibly paid in full in cash;
(ii) the holders of the Class A-2b Notes shall not effect, and by
accepting such Notes hereby irrevocably waive, any right to setoff,
recoup or otherwise apply any obligations of such holder on deposit in
the Class A-2a Funding Account to any of the Notes of any class held
by them;
(iii) the obligations and agreements set forth in this subsection (g)
shall be enforceable in any bankruptcy, reorganization, receivership,
liquidation or other insolvency proceeding of any kind of the Issuer,
including without limitation, pursuant to any plan of reorganization
of the Issuer in a chapter 11 case; and
(iv) the provisions of this subsection (g) shall constitute a
subordination agreement enforceable under Section 510(a) of the
Bankruptcy Code.
Section 8.03 General Provisions Regarding Accounts.
(a) So long as no Default or Event of Default shall have occurred, all
or a portion of the funds in the Trust Accounts shall be invested in accordance
with the provisions of Section 7.03 of the Pooling and Servicing Agreement.
Except as otherwise provided in Section 7.03 of the Pooling and Servicing
Agreement, all income or other gain from investments of moneys deposited in the
Collection Account and the Note Distribution Account shall be deposited by the
Indenture Trustee in the Collection Account and the Note Distribution Account,
as the case may be. All income or other gain resulting from investment of funds
deposited in the Cash Collateral Account shall be retained therein until applied
in accordance with the Cash Collateral Account Agreement. All income or other
gain resulting from investment of funds deposited in the Class A Principal
Account shall be deposited in the Collection Account. All income or other gain
resulting from investment of funds deposited in the Class A-2a Funding Account
shall be deposited in the Collection Account. Any loss resulting from such
investments shall be charged to the related Trust Account. The Issuer will not
direct the Indenture Trustee to make any investment of any funds or to sell any
investment held in any of the Trust Accounts unless the security interest
granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the Indenture
Trustee, the Issuer shall deliver to the Indenture Trustee an Opinion of
Counsel, acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.01(c), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in any of the Trust Accounts
resulting from any loss on any Eligible Investment included therein except for
losses attributable to the Indenture Trustee's failure to make payments on such
Eligible Investments issued by the Indenture Trustee, in its commercial capacity
as principal obligor and not as Indenture Trustee, in accordance with their
terms.
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(c) If (i) the Issuer shall have failed to give written investment
directions for any funds on deposit in the Trust Accounts to the Indenture
Trustee by 11:00 a.m., New York City time (or such other time as may be agreed
by the Issuer and Indenture Trustee), on any Business Day or (ii) a Default or
Event of Default shall have occurred and be continuing with respect to the Notes
but the Notes shall not have been declared due and payable pursuant to Section
5.02 or (iii) if such Notes shall have been declared due and payable following
an Event of Default, but amounts collected or receivable from the Collateral are
being applied in accordance with Section 5.05 as if there had not been such a
declaration, then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Trust Accounts in Eligible
Investments described in clause (vi) of the definition thereof in the Pooling
and Servicing Agreement.
Section 8.04 Release of Collateral.
(a) Subject to the payment of its fees, expenses and indemnification
pursuant to Section 6.07, the Indenture Trustee may, and when required by the
provisions of this Indenture or the Pooling and Servicing Agreement shall,
execute instruments to release property from the lien of this Indenture, or
convey the Indenture Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this Indenture.
No party relying upon an instrument executed by the Indenture Trustee as
provided in this Article shall be bound to ascertain the Indenture Trustee's
authority, inquire into the satisfaction of any conditions precedent or see to
the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Indenture Trustee pursuant to Section 6.07 have
been paid and all Amounts due under the Class A-2 Swap Agreement and the Class
A-3 Swap Agreement have been paid, release any remaining portion of the
Collateral that secured the Notes from the lien of this Indenture and release to
the Issuer or any other Person entitled thereto any funds then on deposit in the
Trust Accounts. The Indenture Trustee shall release property from the lien of
this Indenture pursuant to this Section 8.04(b) only upon receipt of an Issuer
Request accompanied by an Officer's Certificate, an Opinion of Counsel and (if
required by the TIA as so stated in the Opinion of Counsel) Independent
Certificates in accordance with TIA 'SS''SS' 314(c) and 314(d)(1) and in each
case meeting the applicable requirements of Section 11.01.
Section 8.05 Opinion of Counsel. The Indenture Trustee shall receive
at least seven days prior written notice when requested by the Issuer to take
any action pursuant to Section 8.04(a), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require, as a condition to such
action, an Opinion of Counsel, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
will not materially and adversely impair the security for the Notes or the
rights of the Noteholders in contravention of the provisions for this Indenture;
provided, however, that such Opinion of Counsel shall not be required to express
an opinion as to the fair value of the Collateral. Counsel rendering any such
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Noteholders.
Without the consent of the Holders of any Notes and with prior notice
to each Rating Agency, the Issuer and the Indenture Trustee, when authorized by
an Issuer Order and upon receipt by the Indenture Trustee of an Opinion of
Counsel, and the other parties hereto at any time from time to time, may enter
into one or more indentures supplemental hereto (which shall conform to the
provisions of the TIA as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure, convey
and confirm unto the Indenture Trustee any property subject or required to
be subjected to the lien created by this Indenture, or to subject to the
lien created by this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another Person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein and
in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit of
the Holders of the Notes, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be inconsistent
with any other provision herein or in any supplemental indenture or the
Transaction Documents or to make any other provisions with respect to
matters or questions arising under this Indenture or in any supplemental
indenture; provided that such action shall not adversely affect the
interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor Indenture Trustee with respect to the
Notes and to add to or change any of the provisions of this Indenture as
shall be necessary to facilitate the administration of the trusts hereunder
by more than one Indenture Trustee, pursuant to the requirements of Article
Six;
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification
of this Indenture under the TIA or under any similar federal statute
hereafter enacted and to add to this Indenture such other provisions as may
be expressly required by the TIA; and
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(viii) to elect into the FASIT provisions of the Code,
provided an Opinion of Counsel to the effect that such election will not
adversely affect the Noteholders, is delivered to the Issuer and Indenture
Trustee.
The Indenture Trustee is hereby authorized to join in the exemption of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
Section 9.02 Supplemental Indentures With Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order and upon
receipt by the Indenture Trustee of an Opinion of Counsel, also may, with prior
notice to each Rating Agency, and with the consent of a Majority in Interest, by
Act of such Holders delivered to the Issuer and the Indenture Trustee, enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; provided, however, that, no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(i) change the date of payment of any installment of principal
of or interest on any Note, or reduce the principal amount thereof, the
interest rate thereon or the Redemption Date Amount with respect thereto,
change the provisions of this Indenture relating to the application of
collections on, or the proceeds of the sale of, the Collateral to payment
of principal of or interest on the Notes, or change any place of payment
where, or the coin or currency in which, any Note or the interest thereon
is payable, or impair the right to institute suit for the enforcement of
the provisions of this Indenture requiring the application of funds
available therefor, as provided in Article Five, to the payment of any such
amount due on the Notes on or after the respective due dates thereof (or,
in the case of redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the
Notes, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture;
(iii) modify or alter the provisions of the second proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the
Notes required to direct the Indenture Trustee to sell or liquidate the
Collateral pursuant to Section 5.04 or amend the provisions of this Article
which specify the percentage of the Outstanding Amount of the Notes
required to amend this Indenture or the other Transaction Documents;
(v) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional
provisions of this
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Indenture or the other Transaction Documents cannot be modified or waived
without the consent of the Holder of each Outstanding Note affected
thereby; or
(vi) permit the creation of any lien ranking prior to or on a
parity with the lien created by this Indenture with respect to any part of
the Collateral or, except as otherwise permitted or contemplated herein,
terminate the lien created by this Indenture on any property at any time
subject hereto or deprive the Holder of any Note of the security provided
by the lien created by this Indenture;
provided, further, however, that no such supplemental indenture shall
(x) adversely affect the rights and obligations of the Class A-2 Swap
Counterparty under the Class A-2 Swap Agreement (including, without limitation,
the priority of payments owed to the Class A-2 Swap Counterparty under the Class
A-2 Swap Agreement) without the written consent of the Class A-2 Swap
Counterparty or (y) adversely affect the rights and obligations of the Class A-3
Swap Counterparty under the Class A-3 Swap Agreement (including, without
limitation, the priority of payments owed to the Class A-3 Swap Counterparty
under the Class A-3 Swap Agreement) without the written consent of the Class A-3
Swap Counterparty.
Neither the Issuer, the Indenture Trustee nor any of their respective
affiliates shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Noteholder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture, the Pooling and Servicing Agreement or the
Notes unless such consideration is offered to be paid to all Noteholders that so
consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
The Indenture Trustee may in its discretion determine whether or not
any Notes would be affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of the Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The Indenture
Trustee shall not be liable for any such determination made in good faith as in
reliance upon an Opinion of Counsel.
It shall not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the parties hereto of any supplemental
indenture pursuant to this Section, the Issuer shall mail to the Holders of the
Notes to which such amendment or supplemental indenture relates a notice setting
forth in general terms the substance of such supplemental indenture. Promptly
after the execution by the parties hereto of any supplemental indenture pursuant
to this Section, the Issuer shall mail to the Class A-2 Swap Counterparty and
the Class A-3 Swap Counterparty a copy of such supplemental indenture. Any
failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
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Section 9.03 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Indenture Trustee shall be entitled to receive, and subject
to Sections 6.01 and 6.02 shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
Section 9.04 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this Indenture of
the parties hereto and the Holders of the Notes shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 9.05 Conformity With Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act as then in
effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
Section 9.06 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and if required by the Indenture Trustee or the
Issuer shall, bear a notation in form approved by the Indenture Trustee as to
any matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
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ARTICLE TEN
REDEMPTION AND OPTIONAL PURCHASE OF NOTES
Section 10.01 Redemption.
(a) In the event that Financial pursuant to Section 7.08 of the
Pooling and Servicing Agreement, purchases (through the Trust Depositor) the
corpus of the Trust, the Notes are subject to redemption in whole, but not in
part, on the Payment Date on which such repurchase occurs, for a purchase price
equal to the outstanding principal, and accrued interest on the Notes (the
"Redemption Price"); provided, however, that the Issuer has available funds
sufficient to pay such amounts. Financial, the Servicer or the Issuer shall
furnish each Rating Agency notice of such redemption. If the Notes are to be
redeemed pursuant to this Section 10.01(a), the Servicer or the Issuer shall
furnish notice of such election to the Indenture Trustee not later than twenty
(20) days prior to the Redemption Date and the Issuer shall deposit with the
Indenture Trustee in the Note Distribution Account the Redemption Price of the
Notes to be redeemed whereupon all such Notes shall be due and payable on the
Redemption Date upon the furnishing of a notice complying with Section 10.02 to
each Holder of the Notes.
(b) In the event that the assets of the Trust are sold pursuant to
Section 9.02 of the Trust Agreement or Section 5.03(b) of this Indenture, the
proceeds of such sale shall be distributed as provided in Section 5.06. If
amounts are to be paid to Noteholders pursuant to this Section 10.01(b), the
Servicer or the Issuer shall, to the extent practicable, furnish notice of such
event to the Indenture Trustee not later than twenty (20) days prior to the
Redemption Date whereupon all such amounts shall be payable on the Redemption
Date.
Section 10.02 Form of Redemption Notice. Notice of redemption under
section 10.01(a) shall be given by the Indenture Trustee by first-class mail,
postage prepaid, mailed not less than five days prior to the applicable
Redemption Date to each Holder of Notes, as of the close of business on the
Record Date preceding the applicable Redemption Date, at such Holder's address
appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Date Amount; and
(iii) the place where such Notes are to be surrendered for
payment of the Redemption Date Amount (which shall be the office or agency
of the Issuer to be maintained as provided in Section 3.02).
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuer. Failure to give notice of
redemption, or any defect therein, to any Holder of any Note shall not impair or
affect the validity of the redemption of any other Note.
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Section 10.03 Notes Payable on Redemption Date. The Notes or portions
thereof to be redeemed shall, following notice of redemption (if any) as
required by Section 10.02, on the Redemption Date become due and payable at the
Redemption Date Amount and (unless the Issuer shall default in the payment of
the Redemption Date Amount) no interest shall accrue on the Redemption Date
Amount for any period after the date to which accrued interest is calculated for
purposes of calculating the Redemption Date Amount.
Section 10.04 Optional Purchase of Class D Notes by Depositor.
The Trust Depositor shall have the right to purchase, on any Payment
Date, all, but not less than all, of the Class D Notes, at a price calculated by
the Servicer equal to the Principal Amount thereof, plus a premium equal to the
excess, discounted as described below, of (i) the amount of interest that would
have accrued on the Class D Notes at the Class D Interest Rate during the period
commencing on and including the Payment Date on which the Class D Notes are to
be so purchased to but excluding the Class D Maturity Date, over (ii) the amount
of interest that would have accrued on the Class D Notes over the same period at
a per annum rate of interest equal to 0.25% plus the bond equivalent yield to
maturity on the fifth Business Day preceding such Payment Date of a United
States Treasury security, which is trading in the public securities market,
maturing on a date closest to the date equal to the remaining weighted average
life of the Class D Notes. Such excess shall be discounted to present value to
such Payment Date at the yield described in clause (ii) above. For purposes of
the preceding two sentences only, (i) the Principal Amount of the Class D Notes
upon which interest will be deemed to accrue, and (ii) the weighted average
remaining life of the Class D Notes, shall be determined based upon the
amortization of the Contract Pool Principal Balance remaining at such Payment
Date at a conditional prepayment rate equal to 9.0%. Interest payable on the
Class D Notes on such Payment Date shall be paid to the Holders of Class D Notes
on the related Record Date in the ordinary manner. If the Trust Depositor elects
to purchase the Class D Notes as described in this paragraph, the Trust
Depositor shall furnish notice of such election and the Payment Date on which
the purchase is to be made (the "Purchase Date") to the Indenture Trustee no
less than 25 days (or such lesser number of days as shall be satisfactory to the
Indenture Trustee) prior to such Purchase Date, and shall thereafter deposit, or
cause to be deposited, into the Note Distribution Account the purchase price of
the Class D Notes, whereupon all Class D Notes shall be subjected to purchase on
such Purchase Date upon the furnishing of a notice complying with Section 10.05
to each Holder of Class D Notes.
Section 10.05 Form of Purchase Notice. Notice of purchase under
section 10.04 shall be given by the Indenture Trustee not less than five days
prior to the Purchase Date by first-class mail, postage prepaid, mailed to each
Holder of Class D Notes, as of the close of business on the Record Date with
respect to the Payment Date immediately preceding the Purchase Date, at such
Holder's address appearing in the Note Register.
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All notices of purchase shall state:
(i) the Purchase Date;
(ii) the purchase price;
(iii) the place where such Notes are to be surrendered for
payment of the purchase price (the "Place of Purchase," which shall be the
office or agency of the Issuer to be maintained as provided in Section
3.02); and
(iv) that interest payable on the Class D Notes on such Purchase
Date shall be paid to the Holders of record on the related Record Date in
the ordinary manner.
Notice of purchase of the Notes shall be given by the Indenture
Trustee in the name and at the expense of the Trust Depositor. Failure to give
notice of purchase, or any defect therein, to any Holder of any Class D Note
shall not impair or effect the validity of the purchase of any other Class D
Note.
Section 10.06 Class D Notes to be Purchased on Purchase Date.
(a) The Class D Notes shall, following notice of purchase as required
by Section 10.05, be purchased on the Purchase Date, but solely from the moneys
deposited in the Note Distribution Account for such purpose, at the purchase
price therefor, such purchase price to be payable upon presentation and
surrender of the Class D Notes to the Trustee at the Corporate Trust Office.
(b) All Class D Notes must be surrendered for purchase on the Purchase
Date. Provided that funds are available and on hand with the Indenture Trustee
to pay the purchase price thereof, (1) the Class D Notes shall be "deemed
purchased" on the Purchase Date, whether or not received by the Indenture
Trustee on such date, (2) interest on the Class D Notes, whether or not such
Class D Notes are received by the Indenture Trustee, shall cease to accrue on
the Purchase Date and the former Holders of such Class D Notes shall have no
further interest or rights in such Class D Notes except that said former Holders
shall be entitled to payment of the purchase price thereof, exclusively from
moneys in the Note Distribution Account held by the Indenture Trustee for such
payment, upon presentation of such Class D Notes to the Indenture Trustee at the
Corporate Trust Office at or before 10:00 a.m., New York City time, on such
Purchase Date or any Business Day thereafter, (3) on and after the Purchase
Date, the Indenture Trustee, the Note Registrar and each Paying Agent shall no
longer treat the former Holders of such Class D Notes as the Holders thereof
except for purposes of such Holders' right to receive payment of the purchase
price of such Class D Notes, and (4) on the Purchase Date, the Indenture Trustee
shall authenticate one or more new Class D Notes of authorized denominations and
in the aggregate principal amount of the Class D Notes in the name of the Trust
Depositor or any other Person or Persons designated by the Trust Depositor, as
provided in and subject to the terms of this Indenture.
(c) Any Class D Notes issued in lieu of Class D Notes purchased or
otherwise deemed purchased pursuant to this Section 10.06 shall not be canceled
or the indebtedness
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represented thereby otherwise extinguished, it being the intention of the Issuer
and the Trust Depositor that such Class D Notes remain outstanding and represent
a continuing indebtedness of the Issuer, whether such Class D Notes are held by
the Trust Depositor or any other purchaser.
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ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01 Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the
Indenture Trustee to take any action under any provision of this Indenture, the
Issuer shall furnish to the Indenture Trustee (i) an Officer's Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, (ii) an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, and (iii) (if required by the TIA as
so stated in the Opinion of Counsel) an Independent Certificate from a firm of
certified public accountants meeting the applicable requirements of this section
and TIA ss.314(c), except that, in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such
certificate or opinion has read or has caused to be read such covenant
or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination or investigation as
is necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether, in the opinion of
each such signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other
property or securities with the Indenture Trustee that is to be made the basis
for authentication and delivery of the Notes or the release of any property
subject to the lien created by this Indenture, the Issuer shall, in addition to
any obligation imposed in Section 11.01(a) or elsewhere in this Indenture,
furnish to the Indenture Trustee an Officer's Certificate certifying or stating
the opinion of the signer thereof as to the fair value (within ninety (90) days
of such deposit) of the Collateral or other property or securities to be so
deposited.
(ii) Whenever the Issuer is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signer thereof as to the matters described in clause
(i) above, the Issuer shall also deliver to the Indenture Trustee
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an Independent Certificate as to the named matters, if the fair value
of the property to be so deposited and of all other such property made
the basis of any such withdrawal or release since the commencement of
the then-current fiscal year of the Issuer, as set forth in the
certificates delivered pursuant to clause (i) above and this clause
(ii), is 10% or more of the Outstanding Amount of the Notes, but such a
certificate need not be furnished with respect to any property so
deposited, if the fair value thereof as set forth in the related
Officer's Certificate is less than $25,000 or less than one percent of
the Outstanding Amount of the Notes.
(iii) Other than with respect to any release
described in clause (A) or (B) of Section 11.01(b)(v), whenever any
property or securities are to be released from the lien created by this
Indenture, the Issuer shall also furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within ninety (90) days
of such release) of the property or securities proposed to be released
and stating that in the opinion of such person the proposed release
will not impair the security created by this Indenture in contravention
of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signer thereof as to the matters described in clause
(iii) above, the Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value of the
property or securities and of all other property or securities (other
than property described in clauses (A) or (B) of Section 11.01(b)(v))
released from the lien created by this Indenture since the commencement
of the then current fiscal year, as set forth in the certificates
required by clause (iii) above and this clause (iv), equals 10% or more
of the Outstanding Amount of the Notes, but such certificate need not
be furnished in the case of any release of property or securities if
the fair value thereof as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent of the then
Outstanding Amount of the Notes.
(v) Notwithstanding any other provision of this
Section, the Issuer may, without compliance with the other provisions
of this Section, (A) collect, liquidate, sell or otherwise dispose of
the Contracts as and to the extent permitted or required by the
Transaction Documents, (B) make cash payments out of the Trust Accounts
as and to the extent permitted or required by the Transaction
Documents, so long as the Issuer shall deliver to the Indenture Trustee
every twelve months, commencing on the December 2001 Payment Date, an
Officer's Certificate stating that all the dispositions of Collateral
described in clauses (A) or (B) that occurred during the preceding
twelve calendar months were in the ordinary course of the Issuer's
business and that the proceeds thereof were applied in accordance with
the Transaction Documents.
Section 11.02 Form of Documents Delivered to Indenture
Trustee. In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such
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Person may certify or give an opinion with respect to some matters and one or
more other such Person as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Servicer, Financial or the Issuer, stating that the information with respect
to such factual matters is in the possession of the Servicer, Financial or the
Issuer, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application
or certificate or report to the Indenture Trustee, it is provided that the
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer's compliance with any term hereof, it
is intended that the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or report (as the case
may be), of the facts and opinions stated in such document shall in such case be
conditions precedent to the right of the Issuer to have such application granted
or to the sufficiency of such certificate or report. The foregoing shall not,
however, be construed to affect the Indenture Trustee's right to rely upon the
truth and accuracy of any statement or opinion contained in any such document as
provided in Article Six.
Section 11.03 Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
(manually or by facsimile) by Noteholders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Noteholders in person or by agents duly appointed in writing; and except as
herein otherwise expressly provided such action shall become effective when such
instrument or instruments are delivered to the Indenture Trustee, and, where it
is hereby expressly required, to the Issuer. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.01) conclusive in favor of the Indenture Trustee and the Issuer, if made in
the manner provided in this Section.
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(b) The fact and date of the execution by any person of any
such instrument or writing may be proved in any manner that the Indenture
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Notes shall bind the Holder
of every Note issued upon the registration thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon, whether or not notation of
such action is made upon such Note.
Section 11.04 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 at the address specified in
the Pooling and Servicing Agreement for such recipient.
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 11.05 Notices to Noteholders; Waiver. Where this
Indenture provides for Notice to Noteholders of any event, such Notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such Notice. In any case where Notice to Noteholders is given by mail,
neither the failure to mail such Notice nor any defect in any Notice so mailed
to any particular Noteholder shall affect the sufficiency of such Notice with
respect to other Noteholders, and any Notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for Notice in any manner, such
Notice may be waived in writing by any Person entitled to receive such Notice,
either before or after the event, and such waiver shall be the equivalent of
such Notice. Waivers of Notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event of Noteholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
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Where this Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance constitute a
Default or Event of Default.
Section 11.06 Alternate Payment and Notice Provisions.
Notwithstanding any provisions of this Indenture or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Indenture Trustee or any
Paying Agent to such Holder, that is different from the methods provided for in
this Indenture for such payments or notices. The Issuer will furnish to the
Indenture Trustee a copy of each such agreement and the Indenture Trustee will
cause payments to be made and notices to be given in accordance with such
agreements.
Section 11.07 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 11.08 Successors and Assigns. All covenants and
agreements in this Indenture and the Notes by the Issuer shall bind its
successors and assigns, whether so expressed or not. All agreements of the
Indenture Trustee in this Indenture shall bind its successors, co-Indenture
Trustees and agents.
Section 11.09 Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 11.10 Benefits of Indenture. Nothing in this Indenture
or in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Noteholders, and any
other party secured hereunder, and any other Person with an ownership or
security interest in any part of the Collateral, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 11.11 Legal Holidays. In any case where the date on
which any payment is due shall not be a Business Day, then (notwithstanding any
other provision of the Notes or this Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
Section 11.12 Governing Law. THIS INDENTURE SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS,
RIGHTS, AND REMEDIES OF THE PARTIES UNDER THE AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 11.13 Counterparts. This Indenture may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
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Section 11.14 Recording of Indenture. If this Indenture is
subject to recording in any appropriate public recording offices, such recording
is to be effected by the Issuer and at its expense accompanied by an Opinion of
Counsel (which may be counsel to the Issuer or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
Section 11.15 Trust Obligation.
(a) No recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) the Indenture Trustee
or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Indenture Trustee or the Owner Trustee in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any
such Person may have expressly agreed (it being understood that the Indenture
Trustee and the Owner Trustee have no such obligations in their individual
capacity) and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law, for any unpaid consideration
for stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity. For all purposes of this Indenture, 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 Article
Six, Seven and Eight of the Trust Agreement.
Section 11.16 No Petition. The parties hereto, by entering
into this Indenture, and each Noteholder, by accepting a Note or a beneficial
interest in a Note, hereby covenant and agree that they will not at any time
institute against Financial, the Trust Depositor or the Issuer, or join in any
institution against Financial, the Trust Depositor or the Issuer, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, this
Indenture or any of the other Transaction Documents.
Section 11.17 Inspection. The Issuer agrees that, on
reasonable prior notice, it will permit any representative of the Indenture
Trustee, during the Issuer's normal business hours, to examine all the books of
account, records, reports and other papers of the Issuer, to make copies and
extracts therefrom, to cause such books to be audited by independent certified
public accountants, and to discuss the Issuer's affairs, finances and accounts
with the Issuer's officers, employees and independent certified public
accountants, all at such reasonable times and as often as may be reasonably
requested. The Indenture Trustee shall and shall cause its representatives to
hold in confidence all such information except to the extent disclosure may be
required by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent that the Indenture Trustee may reasonably
determine that such disclosure is consistent with its obligations hereunder.
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Section 11.18 Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
that is required to be included in this Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control.
Section 11.19 Communication by Noteholders With Other
Noteholders. Noteholders may communicate with other Noteholders with respect to
their rights under this Indenture or the Notes pursuant to Section 312(b) of the
TIA. Every Noteholder, by receiving and holding the same, agrees with the Issuer
and the Indenture Trustee that none of the Issuer and the Indenture Trustee nor
any agent of the Issuer and the Indenture Trustee shall be deemed to be in
violation of any existing law, or any law hereafter enacted which does not
specifically refer to Section 312 of the TIA, by reason of the disclosure of any
such information as to the names and addresses of the Noteholders in accordance
with Section 312 of the TIA, regardless of the source from which such
information was derived, and that the Indenture Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the TIA.
The provisions of TIA ss.ss.310 through 317 that impose duties
on any person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
Section 11.20 Amendment of Cash Collateral Account Agreement.
(a) The Indenture Trustee may consent to amendments to the
Cash Collateral Account Agreement without the consent of any of the Noteholders,
(i) to cure any ambiguity, (ii) to correct or supplement any provisions in the
Cash Collateral Account Agreement that may be inconsistent with any other
provision therein, or (iii) to make any other provisions with respect to matters
or questions arising under the Cash Collateral Account Agreement that are not
inconsistent with the provisions thereof; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of the Noteholders.
(b) The Indenture Trustee may also consent to amendments to
the Cash Collateral Account Agreement with the consent of a Majority in Interest
of the Notes for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Cash Collateral Account
Agreement; provided, however, that no such amendment shall (a) reduce the amount
available in the Cash Collateral Account for the payment of interest or
principal to Noteholders, or (b) reduce the aforesaid percentage required to
consent to any such amendment, without the consent of the Holders of all Notes
then Outstanding and affected thereby; and provided, further, that no such
amendment shall be effective unless and until the Rating Agency Condition has
been satisfied.
(c) Promptly after the execution of any such amendment, the
Indenture Trustee shall furnish written notification of the substance of such to
each Noteholder.
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(d) It shall not be necessary for the consent of Noteholders
pursuant to Section 11.20(b) to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 11.21 Amendment of Class A-2 Swap Agreement
(a) The Issuer and the Indenture Trustee may consent to
amendments to the Class A-2 Swap Agreement without the consent of any of the
Class A-2 Noteholders, (i) to cure any ambiguity, (ii) to correct or supplement
any provisions in the Class A-2 Swap Agreement that may be inconsistent with any
other provision therein, or (iii) to make any other provisions with respect to
matters or questions arising under the Class A-2 Swap Agreement that are not
inconsistent with the provisions thereof; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of the Class A-2 Noteholders.
(b) The Issuer and the Indenture Trustee may also consent to
amendments to the Class A-2 Swap Agreement with the consent of the holders of at
least 662/3% of the aggregate Principal Amount of Class A-2 Notes then
Outstanding for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Class A-2 Swap Agreement;
provided, however, that no such amendments shall (a) reduce the amount payable
under the Class A-2 Swap Agreement to be used to pay interest on Class A-2
Notes, or (b) reduce the aforesaid percentage required to consent to any such
amendment, without the consent of the Holders of all Class A-2 Notes then
Outstanding; and provided, further, that no such amendment shall be effective
unless and until the Rating Agency Condition has been satisfied.
(c) Promptly after the execution of any such amendment, the
Indenture Trustee shall furnish written notification of the substance of such to
each Class A-2 Noteholder.
(d) It shall not be necessary for the consent of the Class A-2
Noteholders pursuant to Section 11.21(b) to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 11.22 Amendment of Class A-3 Swap Agreement
(a) The Issuer and the Indenture Trustee may consent to
amendments to the Class A-3 Swap Agreement without the consent of any of the
Class A-3 Noteholders, (i) to cure any ambiguity, (ii) to correct or supplement
any provisions in the Class A-3 Swap Agreement that may be inconsistent with any
other provision therein, or (iii) to make any other provisions with respect to
matters or questions arising under the Class A-3 Swap Agreement that are not
inconsistent with the provisions thereof; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of the Class A-3 Noteholders.
(b) The Issuer and the Indenture Trustee may also consent to
amendments to the Class A-3 Swap Agreement with the consent of the holders of at
least 662/3% of the aggregate Principal Amount of Class A-3 Notes then
Outstanding for the purpose of adding any provisions
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to or changing in any manner or eliminating any of the provisions of the Class
A-3 Swap Agreement; provided, however, that no such amendments shall (a) reduce
the amount payable under the Class A-3 Swap Agreement to be used to pay interest
on Class A-3 Notes, or (b) reduce the aforesaid percentage required to consent
to any such amendment, without the consent of the Holders of all Class A-3 Notes
then Outstanding; and provided, further, that no such amendment shall be
effective unless and until the Rating Agency Condition has been satisfied.
(c) Promptly after the execution of any such amendment, the
Indenture Trustee shall furnish written notification of the substance of such to
each Class A-3 Noteholder.
(d) It shall not be necessary for the consent of the Class A-3
Noteholders pursuant to Section 11.22(b) to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and delivered as of the day and year first above
written.
CIT EQUIPMENT COLLATERAL 2000-1
By: ALLFIRST FINANCIAL CENTER
NATIONAL ASSOCIATION, not in its individual
capacity but solely on behalf of the Issuer
as Owner Trustee under the Trust Agreement
By: /s/ Pamela S. Hazelip
---------------------------
Name: Pamela S. Hazelip
Title: Vice President
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as Indenture
Trustee
By: /s/ Craig M. Kantor
--------------------------
Name: Craig M. Kantor
Title: Vice President
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<PAGE>
STATE OF New York )
) ss
COUNTY OF New York )
On 5/10/00 before me, Tracey F. Dillon,
personally appeared Pamela S. Hazelip,
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 such person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Tracey F. Dillon [Seal]
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<PAGE>
STATE OF New York )
) ss
COUNTY OF New York )
On 5/10/00 before me, Tracey F. Dillon,
personally appeared Craig M. Kantor,
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 such person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Tracey F. Dillon [Seal]
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<PAGE>
EXHIBIT A-1
FORM OF CLASS A-1 NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS
NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CIT EQUIPMENT COLLATERAL 2000-1
6.723024% CLASS A-1 RECEIVABLE-BACKED NOTES
REGISTERED $288,583,600
No. R-1 CUSIP NO. 125564AA2
CIT Equipment Collateral 2000-1, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of Two Hundred Eighty-Eight Million Five
Hundred Eighty-Three Thousand Six Hundred Dollars ($288,583,600) payable on the
earlier of May 21, 2001 (the "Class A-1 Maturity Date") and the Redemption Date,
if any, pursuant to Section 10.01 of the Indenture referred to on the reverse
hereof.
The Issuer will pay interest on this Note at the rate per
annum shown above on each Payment Date until the principal of this Note is paid
or made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
Section 3.01 of the Indenture. Interest on this Note will accrue for each
Payment Date from the most recent Payment Date on which interest has been paid
to but excluding such Payment Date or, if no interest has yet been paid, from
the Closing Date. Interest will be
A-1-1
<PAGE>
computed on the basis of a 360-day year and actual days elapsed. Such principal
of and interest on this Note shall be paid in the manner specified on the
reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
A-1-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by an Authorized Officer, as of the date
set forth below.
Date: May 10, 2000 CIT EQUIPMENT COLLATERAL 2000-1
By: Allfirst Financial Center National Association, not
in its individual capacity but solely on behalf of the
Issuer as Owner Trustee under the Trust Agreement
By: __________________________________________________
Name:________________________________________
Title:_______________________________________
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
The Chase Manhattan Bank, not in its individual
capacity but solely as Indenture Trustee
By: __________________________________________________
Authorized Signatory
A-1-3
<PAGE>
[REVERSE OF CLASS A-1 NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 6.723024% Class A-1 Receivable-Backed Notes (the
"Class A-1 Notes"), all issued under an Indenture, dated as of April 1, 2000
(the "Indenture"), between the Issuer and The Chase Manhattan Bank, as Indenture
Trustee (the "Indenture Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Class A-1 Notes are subject to all terms of the
Indenture. All terms used in this Note that are defined in the Indenture, as
supplemented or amended, shall have the meanings assigned to them in or pursuant
to the Indenture, as so supplemented or amended. All terms used in this Note
that are defined in the Pooling and Servicing Agreement dated as of April 1,
2000 by and among Newcourt Financial USA Inc., AT&T Capital Corporation, NCT
Funding Company, L.L.C. and the Issuer (the "Pooling and Servicing Agreement")
shall have the meanings assigned to them therein.
The Class A-1 Notes and the other Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture subject to the priorities of allocations as to interest and principal
payments as described therein and in the Pooling and Servicing Agreement.
Principal of the Class A-1 Notes will be payable on the
earlier of the Class A-1 Maturity Date and the Redemption Date, if any, selected
pursuant to the Indenture. Notwithstanding the foregoing, the entire unpaid
principal amount of the Class A-1 Notes shall be due and payable on the date on
which an Event of Default shall have occurred and be continuing unless the
Required Holders have waived such Event of Default.
Payments of interest on this Note due and payable on each
Payment Date shall be made by check mailed to the Person whose name appears as
the Registered Holder of this Note (or one or more Predecessor Notes) on the
Note Register as of the close of business on each Record Date, except that with
respect to Notes registered on the Record Date in the name of nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account designated
by such nominee. Such checks shall be mailed to the Person entitled thereto at
the address of such Person as it appears on the Note Register as of the
applicable Record Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note (or any
one or more Predecessor Notes) affected by any payments made on any Payment Date
shall be binding upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five (5) Business Days of such Payment Date and the amount
then due and payable shall be payable only upon presentation and surrender of
this Note at the Corporate Trust Office of the Indenture Trustee or at the
office of the Indenture Trustee's agent appointed for such purposes located in
New York City.
A-1-4
<PAGE>
As provided in the Indenture, the Notes may be redeemed
pursuant to Section 10.01 of the Indenture, in whole, but not in part, at the
option of Financial, on the Payment Date on or after the date on which the
Aggregate Principal Amount of the Notes outstanding is less than 10% of the
Contract Pool Principal Balance on the Initial Cutoff Date.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
eligible guarantor institution which is a participant in the Securities Transfer
Agent's Medallion Program (STAMP) or similar signature guarantee program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new program, and such other documents as the Indenture Trustee may require,
and thereupon one or more new Class A-1 Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign
of the Indenture Trustee or the Owner Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
Indenture Trustee and the Owner Trustee have no such obligations in their
individual capacities) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that by accepting the benefits of the
Indenture and such Note that such Noteholder will not at any time institute
against Financial, the Trust Depositor or the Issuer, or join in any institution
against the Trust Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness
which is solely secured by the Collateral and that the Trust
A-1-5
<PAGE>
will be disregarded as a separate entity for federal income tax purposes
pursuant to Treasury Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder,
by acceptance of a Note (and each Noteholder by acceptance of a beneficial
interest in a Note), agrees to treat the Notes for federal, state and local
income, single business and franchise tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of
this Note, the Issuer and the Indenture Trustee and any agent of the Issuer and
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such
agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with its consent of the Majority in Interest of the
Notes. The Indenture also contains provisions permitting the Noteholders
representing specified percentages of the Outstanding Amount of the Notes, on
behalf of the Noteholders, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder (or any one of
more Predecessor Notes) shall be conclusive and binding upon such Holders and
upon all future Noteholders and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Noteholders issued thereunder.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency herein
prescribed.
A-1-6
<PAGE>
EXHIBIT A-2a
FORM OF CLASS A-2a NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS
NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CIT EQUIPMENT COLLATERAL 2000-1
FLOATING RATE CLASS A-2a RECEIVABLE-BACKED NOTES
REGISTERED $144,291,800
No. R-1 CUSIP NO. 125564AB0
CIT Equipment Collateral 2000-1, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of One Hundred Forty-Four Million Two
Hundred Ninety-One Thousand Eight Hundred Dollars ($144,291,800) payable on the
earlier of March 20, 2001 (the "Class A-2a Maturity Date") and the Redemption
Date, if any, pursuant to Section 10.01 of the Indenture referred to on the
reverse hereof.
The Issuer will pay interest on this Note, on or prior to the
Class A-2a Maturity Date, at the rate equal to One-Month LIBOR (as defined in
the Pooling and Servicing Agreement described on the reverse hereof) minus 0.01%
and, after the Class A-2a Maturity Date, at the rate equal to One-Month LIBOR
plus 0.13%, on each Payment Date, until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding on
the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
the Indenture provided, however, that to the extent the amount of interest on
such Note or any Payment Date exceeds an amount of
A-2a-1
<PAGE>
interest equal to 7.2475% per annum on the Note (based on a 360-day year
comprised of twelve 30-day months), the Holder of this Note shall be entitled to
be paid such excess only from amounts received by the Issuer under the Class A-2
Swap Agreement (as defined in such Pooling and Servicing Agreement) and as
otherwise provided in the Indenture. Interest on this Note will accrue for each
Payment Date from the most recent Payment Date on which interest has been paid
to but excluding such Payment Date or, if no interest has yet been paid, from
the Closing Date. Interest will be computed on the basis of a 360-day year and
actual days elapsed. Such principal of and interest on this Note shall be paid
in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
A-2a-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Date: May 10, 2000 CIT EQUIPMENT COLLATERAL 2000-1
By: Allfirst Financial Center National Association,
not in its individual capacity but solely on behalf
of the Issuer as Owner Trustee under the Trust
Agreement
By:______________________________________
Printed Name:
Title:
A-2a-3
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
The Chase Manhattan Bank, not in its individual
capacity but solely as Indenture Trustee
By: ______________________________________
Authorized Signatory
A-2a-4
<PAGE>
[REVERSE OF CLASS A-2a NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Floating Rate Class A-2a Receivable-Backed Notes (the
"Class A-2a Notes"), all issued under an Indenture, dated as of April 1, 2000
(the "Indenture"), between the Issuer and The Chase Manhattan Bank, as Indenture
Trustee (the "Indenture Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Notes are subject to all terms of the Indenture. All
terms used in this Note that are defined in the Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the
Indenture, as so supplemented or amended. All terms used in this Note that are
defined in the Pooling and Servicing Agreement dated as of April 1, 2000 by and
among Newcourt Financial USA Inc., AT&T Capital Corporation, NCT Funding
Company, L.L.C. and the Issuer (the "Pooling and Servicing Agreement") shall
have the meanings assigned to them therein.
The Class A-2a Notes and the other Classes of Notes described
in the Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture subject to the priorities of allocations as to interest and principal
payments as described therein and in the Pooling and Servicing Agreement.
Principal of the Class A-2a Notes will be payable on the
earlier of the Class A-2a Maturity Date and the Redemption Date, if any,
pursuant to Section 10.01 of the Indenture. Notwithstanding the foregoing, the
entire unpaid principal amount of the Class A-2a Notes shall be due and payable
on the date on which an Event of Default or a Class A-2a Event of Default shall
have occurred and be continuing unless the Required Holders waive such Event of
Default (provided that a Class A-2a Event of Default may not be waived).
Payments of interest on this Note due and payable on each
Payment Date shall be made by check mailed to the Person whose name appears as
the Registered Holder of this Note (or one or more Predecessor Notes) on the
Note Register as of the close of business on each Record Date, except that with
respect to Notes registered on the Record Date in the name of nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account designated
by such nominee. Such checks shall be mailed to the Person entitled thereto at
the address of such Person as it appears on the Note Register as of the
applicable Record Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note (or any
one or more Predecessor Notes) affected by any payments made on any Payment Date
shall be binding upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five (5) Business Days of such Payment Date and the amount
then due and payable shall be payable only upon presentation
A-2a-5
<PAGE>
and surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in New York City.
As provided in the Indenture, the Notes may be redeemed
pursuant to Section 10.01 of the Indenture, in whole, but not in part, at the
option of Financial, on any Payment Date on or after the date on which the
aggregate Principal Amount of the Notes outstanding is less than 10% of the
Contract Pool Principal Balance as of the Initial Cutoff Date.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
eligible guarantor institution which is a participant in the Securities Transfer
Agent's Medallion Program (STAMP) or similar signature guarantee program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new program, and such other documents as the Indenture Trustee may require,
and thereupon one or more new Class A-2a Notes of authorized denomination and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacities) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that by accepting the benefits of the
Indenture and such Note that such Noteholder will not at any time institute
against Financial, the Trust Depositor or the Issuer, or join in any institution
against the Trust Depositor or the Issuer, of any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents.
A-2a-6
<PAGE>
The Issuer has entered into the Indenture, and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness
which is solely secured by the Collateral and that the Trust will be disregarded
as a separate entity for federal income tax purposes pursuant to Treasury
Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder, by acceptance of a
Note or of a beneficial interest in a Note, agrees to treat the Notes for the
federal, state and local income, single business and franchise tax purposes as
indebtedness.
Prior to the due presentment for registration of transfer of
this Note, the Issuer and the Indenture Trustee and any agent of the Issuer, the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes under the
Indenture at any time by the Issuer with the consent of the Majority in Interest
of its Notes. The Indenture also contains provisions permitting the Holders of
Notes representing specified percentages of the Outstanding Amount of the Notes,
on behalf of the Holders of all the Notes, to waive compliance by the Issuer
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note (or any one of more Predecessor Notes) shall be conclusive and binding
upon such Holders and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
The Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency herein
prescribed.
A-2a-7
<PAGE>
EXHIBIT A-2b
FORM OF CLASS A-2b NOTE
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE ISSUER
HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). THIS SECURITY MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN A TRANSACTION MEETING THE
REQUIREMENTS OF (i) RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A OR (ii) ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE DATED AS OF APRIL
1, 2000 (THE "INDENTURE") BETWEEN THE ISSUER AND THE CHASE MANHATTAN BANK,
INCLUDING (WITHOUT LIMITATION) DELIVERY OF AN INVESTOR LETTER IN THE FORM
REQUIRED BY THE INDENTURE AND WHICH MAY BE IN EITHER CASE EFFECTED WITHOUT LOSS
OF ANY APPLICABLE INVESTMENT COMPANY ACT EXEMPTION AND (B) IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER
APPLICABLE JURISDICTION. EACH PURCHASER OF THIS SECURITY WILL BE REQUIRED TO
MAKE IN WRITING THE REPRESENTATIONS AND AGREEMENTS SPECIFIED IN THE INDENTURE
AND, BY ACCEPTANCE OF ANY SECURITY, WILL BE DEEMED TO HAVE MADE SUCH
ACKNOWLEDGMENTS, REPRESENTATIONS AND AGREEMENTS. ANY TRANSFER IN VIOLATION OF
THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL
NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY
INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE INDENTURE TRUSTEE OR ANY
INTERMEDIARY.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY
THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
A-2b-1
<PAGE>
CIT EQUIPMENT COLLATERAL 2000-1
FLOATING RATE CLASS A-2b RECEIVABLE-BACKED NOTES
REGISTERED $144,291,800
No. R-1 CUSIP NO. 125564AH7
CIT Equipment Collateral 2000-1, a business trust organized and existing
under the laws of the State of Delaware (herein referred to as the "Issuer"),
for value received, hereby promises to pay to [_________], or its registered
assigns, the principal sum of One Hundred Forty-Four Million Two Hundred
Ninety-One Thousand Eight Hundred Dollars ($144,291,800) payable on the earlier
of September 20, 2002 (the "Class A-2b Maturity Date") and the Redemption Date,
if any, pursuant to Section 10.01 of the Indenture referred to on the reverse
hereof.
On and prior to the Class A-2a Maturity Date, the Issuer will pay interest
on this Note in an amount equal to the Investment Earnings on amounts on deposit
in the Class A-2a Funding Account. After the Class A-2a Maturity Date, the
Issuer will pay interest on this Note at the rate equal to One-Month LIBOR plus
0.13% (as defined in the Pooling and Servicing Agreement described on the
reverse hereof), on each Payment Date, until the principal of this Note is paid
or made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
the Indenture provided, however, that to the extent the amount of interest on
such Note or any Payment Date exceeds an amount of interest equal to 7.2475% per
annum on the Note (based on a 360-day year comprised of twelve 30-day months),
the Holder of this Note shall be entitled to be paid such excess only from
amounts received by the Issuer under the Class A-2 Swap Agreement (as defined in
such Pooling and Servicing Agreement) and as otherwise provided in the
Indenture. Interest on this Note will accrue for each Payment Date from the most
recent Payment Date on which interest has been paid to but excluding such
Payment Date or, if no interest has yet been paid, from the Closing Date.
Interest will be computed on the basis of a 360-day year and actual days
elapsed. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any
A-2b-2
<PAGE>
benefit under the indenture referred to on the reverse hereof, or be valid
or obligatory for any purpose.
A-2b-3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: May 10, 2000 CIT EQUIPMENT COLLATERAL 2000-1
By: Allfirst Financial Center National
Association, not in its individual
capacity but solely on behalf of the
Issuer as Owner Trustee under the
Trust Agreement
By:______________________________________
Printed Name:
Title:
A-2b-4
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
The Chase Manhattan Bank, not in its
individual capacity but solely as
Indenture Trustee
By:
______________________________________
Authorized Signatory
A-2b-5
<PAGE>
[REVERSE OF CLASS A-2b NOTE]
This Note is the one of a duly authorized issue of Notes of the Issuer,
designated as its Floating Rate Class A-2b Receivable-Backed Note (the "Class
A-2b Note"), all issued under an Indenture, dated as of April 1, 2000 (the
"Indenture"), between the Issuer and The Chase Manhattan Bank, as Indenture
Trustee (the "Indenture Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Notes are subject to all terms of the Indenture. All
terms used in this Note that are defined in the Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the
Indenture, as so supplemented or amended. All terms used in this Note that are
defined in the Pooling and Servicing Agreement dated as of April 1, 2000 by and
among Newcourt Financial USA Inc., AT&T Capital Corporation, NCT Funding
Company, L.L.C. and the Issuer (the "Pooling and Servicing Agreement") shall
have the meanings assigned to them therein.
The Class A-2b Note and the other Classes of Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture subject to the priorities of allocations as to interest and principal
payments as described therein and in the Pooling and Servicing Agreement.
Principal of the Class A-2b Note will be payable on the earlier of the
Class A-2b Maturity Date and the Redemption Date, if any, pursuant to Section
10.01 of the Indenture. Notwithstanding the foregoing, the entire unpaid
principal amount of the Class A-2b Note shall be due and payable on the date on
which an Event of Default shall have occurred and be continuing unless the
Required Holders waive such Event of Default.
Certain payments on the Class A-2b Note are junior and subordinate to all
of the other Notes in right of payment and priority in accordance with Section
8.02(g) of the Indenture.
Payments of interest on this Note due and payable on each Payment Date
shall be made by check mailed to the Person whose name appears as the Registered
Holder of this Note (or one or more Predecessor Notes) on the Note Register as
of the close of business on each Record Date, provided that payments will be
made by wire transfer in immediately available funds to the account designated
to the Note Registrar by the Holder of this Note. Such checks shall be mailed to
the Person entitled thereto at the address of such Person as it appears on the
Note Register as of the applicable Record Date without requiring that this Note
be submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) affected by any payments made
on any Payment Date shall be binding upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Payment Date, then the
Indenture Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Registered Holder hereof as of the Record Date preceding such
Payment Date by notice mailed within five (5) Business Days of such Payment Date
and the amount then due and payable shall be payable only upon presentation and
surrender
A-2b-6
<PAGE>
of this Note at the Indenture Trustee's principal Corporate Trust Office or
at the office of the Indenture Trustee's agent appointed for such purposes
located in New York City.
As provided in the Indenture, the Notes may be redeemed pursuant to Section
10.01 of the Indenture, in whole, but not in part, at the option of Financial,
on any Payment Date on or after the date on which the aggregate Principal Amount
of the Notes outstanding is less than 10% of the Contract Pool Principal Balance
as of the Initial Cutoff Date.
Prior to the Class A-2a Maturity Date, this Note may not be transferred
without the prior written consent of the Trust Depositor.
As a condition to the registration of any transfer of this Note, the
prospective transferee shall deliver to the Note Registrar and the Indenture
Trustee the Class A-2b Note Transferee Letter or shall supply other evidence to
the same effect satisfactory to the Servicer.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an eligible guarantor
institution which is a participant in the Securities Transfer Agent's Medallion
Program (STAMP) or similar signature guarantee program, and such other documents
as the Indenture Trustee may require, and thereupon one or more new program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new Class A-2b Note of authorized denomination and in the same aggregate
principal amount will be issued to the designated transferee or transferees. No
service charge will be charged for any registration of transfer or exchange of
this Note, but the transferor may be required to pay a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial interest in a Note
covenants and agrees that no recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee in their individual capacities, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee or the Owner Trustee in their
individual capacities, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in their individual capacities, except as
any such Person may have expressly agreed and except (it being understood that
the Indenture Trustee and the Owner Trustee have no such obligations in their
individual capacities) that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
A-2b-7
<PAGE>
Each Noteholder, by acceptance of a Note or a beneficial interest in a Note
covenants and agrees that by accepting the benefits of the Indenture and such
Note that such Noteholder will not at any time institute against Financial, the
Trust Depositor or the Issuer, or join in any institution against the Trust
Depositor or the Issuer, of any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness which is solely
secured by the Collateral and that the Trust will be disregarded as a separate
entity for federal income tax purposes pursuant to Treasury Regulations Section
301.7701-3 (b)(1)(ii). Each Noteholder, by acceptance of a Note or of a
beneficial interest in a Note, agrees to treat the Notes for the federal, state
and local income, single business and franchise tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer and the Indenture Trustee and any agent of the Issuer, the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Majority in Interest of its Notes.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Outstanding Amount of the Notes, on
behalf of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note (or any one of more Predecessor Notes) shall be conclusive and binding
upon such Holders and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
The Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws. No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of
A-2b-8
<PAGE>
and interest on this Note at the times, place, and rate, and in the coin or
currency herein prescribed.
A-2b-9
<PAGE>
EXHIBIT A-3
FORM OF CLASS A-3 NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY
THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CIT EQUIPMENT COLLATERAL 2000-1
FLOATING RATE CLASS A-3 RECEIVABLE-BACKED NOTES
REGISTERED $187,959,055
No. R-1 CUSIP NO. 125564AC8
CIT Equipment Collateral 2000-1, a business trust organized and existing
under the laws of the State of Delaware (herein referred to as the "Issuer"),
for value received, hereby promises to pay to Cede & Co., or its registered
assigns, the principal sum of One Hundred Eighty-Seven Million Nine Hundred
Fifty-Nine Thousand Fifty-Five Dollars ($187,959,055) payable on the earlier of
January 20, 2004 (the "Class A-3 Maturity Date") and the Redemption Date, if
any, pursuant to Section 10.01 of the Indenture referred to on the reverse
hereof.
The Issuer will pay interest on this Note at the rate equal to One-Month
LIBOR plus 0.13 (as defined in the Pooling and Servicing Agreement described on
the reverse hereof), on each Payment Date, until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all payments
of principal made on the preceding Payment Date), subject to certain limitations
contained in the Indenture provided, however, that to the extent the amount of
interest on such Note or any Payment Date exceeds an amount of interest equal to
7.4780% per annum on the Note (based on a 360-day year comprised of twelve
30-day months), the Holder of this Note shall
A-3-1
<PAGE>
be entitled to be paid such excess only from amounts received by the Issuer
under the Class A-3 Swap Agreement (as defined in such Pooling and Servicing
Agreement) and as otherwise provided in the Indenture. Interest on this Note
will accrue for each Payment Date from the most recent Payment Date on which
interest has been paid to but excluding such Payment Date or, if no interest has
yet been paid, from the Closing Date. Interest will be computed on the basis of
a 360-day year and actual days elapsed. Such principal of and interest on this
Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
A-3-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: May 10, 2000 CIT EQUIPMENT COLLATERAL 2000-1
By: Allfirst Financial Center National
Association, not in its individual
capacity but solely on behalf of the
Issuer as Owner Trustee under the
Trust Agreement
By:_____________________________________
Printed Name:
Title:
A-3-3
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
The Chase Manhattan Bank, not in its
individual capacity but solely as
Indenture Trustee
By:
____________________________________
Authorized Signatory
A-3-4
<PAGE>
[REVERSE OF CLASS A-3 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Floating Rate Class A-3 Receivable-Backed Notes (the "Class
A-3 Notes"), all issued under an Indenture, dated as of April 1, 2000 (the
"Indenture"), between the Issuer and The Chase Manhattan Bank, as Indenture
Trustee (the "Indenture Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Notes are subject to all terms of the Indenture. All
terms used in this Note that are defined in the Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the
Indenture, as so supplemented or amended. All terms used in this Note that are
defined in the Pooling and Servicing Agreement dated as of April 1, 2000 by and
among Newcourt Financial USA Inc., AT&T Capital Corporation, NCT Funding
Company, L.L.C. and the Issuer (the "Pooling and Servicing Agreement") shall
have the meanings assigned to them therein.
The Class A-3 Notes and the other Classes of Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture subject to the priorities of allocations as to interest and principal
payments as described therein and in the Pooling and Servicing Agreement.
Principal of the Class A-3 Notes will be payable on the earlier of the
Class A-3 Maturity Date and the Redemption Date, if any, pursuant to Section
10.01 of the Indenture. Notwithstanding the foregoing, the entire unpaid
principal amount of the Class A-3 Notes shall be due and payable on the date on
which an Event of Default shall have occurred and be continuing unless the
Required Holders waive such Event of Default.
Payments of interest on this Note due and payable on each Payment Date
shall be made by check mailed to the Person whose name appears as the Registered
Holder of this Note (or one or more Predecessor Notes) on the Note Register as
of the close of business on each Record Date, except that with respect to Notes
registered on the Record Date in the name of nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Note be submitted for notation of
payment. Any reduction in the principal amount of this Note (or any one or more
Predecessor Notes) affected by any payments made on any Payment Date shall be
binding upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Payment Date, then the Indenture Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Payment Date by notice mailed within
five (5) Business Days of such Payment Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York City.
A-3-5
<PAGE>
As provided in the Indenture, the Notes may be redeemed pursuant to Section
10.01 of the Indenture, in whole, but not in part, at the option of Financial,
on any Payment Date on or after the date on which the aggregate Principal Amount
of the Notes outstanding is less than 10% of the Contract Pool Principal Balance
as of the Initial Cutoff Date.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an eligible guarantor
institution which is a participant in the Securities Transfer Agent's Medallion
Program (STAMP) or similar signature guarantee program, and such other documents
as the Indenture Trustee may require, and thereupon one or more new program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new Class A-3 Notes of authorized denomination and in the same aggregate
principal amount will be issued to the designated transferee or transferees. No
service charge will be charged for any registration of transfer or exchange of
this Note, but the transferor may be required to pay a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial interest in a Note
covenants and agrees that no recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee in their individual capacities, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee or the Owner Trustee in their
individual capacities, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in their individual capacities, except as
any such Person may have expressly agreed (it being understood that the
Indenture Trustee and the Owner Trustee have no such obligations in their
individual capacities) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder, by acceptance of a Note or a beneficial interest in a Note
covenants and agrees that by accepting the benefits of the Indenture and such
Note that such Noteholder will not at any time institute against Financial, the
Trust Depositor or the Issuer, or join in any institution against the Trust
Depositor or the Issuer, of any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness which is solely
secured by the Collateral and that the Trust
A-3-6
<PAGE>
will be disregarded as a separate entity for federal income tax purposes
pursuant to Treasury Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder,
by acceptance of a Note or of a beneficial interest in a Note, agrees to treat
the Notes for the federal, state and local income, single business and franchise
tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer and the Indenture Trustee and any agent of the Issuer, the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Majority in Interest of its Notes.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Outstanding Amount of the Notes, on
behalf of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note (or any one of more Predecessor Notes) shall be conclusive and binding
upon such Holders and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
The Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
A-3-7
<PAGE>
EXHIBIT A-4
FORM OF CLASS A-4 NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY
THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CIT EQUIPMENT COLLATERAL 2000-1
7.58% CLASS A-4 RECEIVABLE-BACKED NOTES
REGISTERED $93,030,239
No. R-1 CUSIP NO. 125564AD6
CIT Equipment Collateral 2000-1, a business trust organized and existing
under the laws of the State of Delaware (herein referred to as the "Issuer"),
for value received, hereby promises to pay to Cede & Co., or its registered
assigns, the principal sum of Ninety-Three Million Thirty Thousand Two Hundred
Thirty-Nine Dollars ($93,030,239) payable on the earlier of March 20, 2008 (the
"Class A-4 Maturity Date") and the Redemption Date, if any, pursuant to Section
10.01 of the Indenture referred to on the reverse hereof.
The Issuer will pay interest on this Note at the rate per annum shown above
on each Payment Date until the principal of this Note is paid or made available
for payment, on the principal amount of this Note outstanding on the preceding
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in the
Indenture. Interest on this Note will accrue for each Payment Date from the most
recent Payment Date on which interest has been paid to but excluding such
Payment Date or, if no interest has yet been paid, from the Closing Date.
Interest will be computed on the basis
A-4-1
<PAGE>
of a 360-day year of twelve 30-day months. Such principal of and interest
on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
A-4-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: May 10, 2000 CIT EQUIPMENT COLLATERAL 2000-1
By: Allfirst Financial Center National
Association, not in its individual
capacity but solely on behalf of the
Issuer as Owner Trustee under the
Trust Agreement
By:_________________________________
Name:
Title:
A-4-3
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
The Chase Manhattan Bank, not in its
individual capacity but solely as
Indenture Trustee
By:_________________________________
Authorized Signatory
A-4-4
<PAGE>
[REVERSE OF CLASS A-4 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 7.58% Class A-4 Receivable-Backed Notes (the "Class A-4
Notes"), all issued under an Indenture, dated as of April 1, 2000 (the
"Indenture"), between the Issuer and The Chase Manhattan Bank, as Indenture
Trustee (the "Indenture Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Notes are subject to all terms of the Indenture. All
terms used in this Note that are defined in the Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the
Indenture, as so supplemented or amended. All terms used in this Note that are
defined in the Pooling and Servicing Agreement dated as of April 1, 2000 by and
among Newcourt Financial USA Inc., AT&T Capital Corporation, NCT Funding
Company, L.L.C. and the Issuer (the "Pooling and Servicing Agreement") shall
have the meanings assigned to them therein.
The Class A-4 Notes and the other Classes of Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture subject to the priorities of allocations as to interest and principal
payments as described therein and in the Pooling and Servicing Agreement.
Principal of the Class A-4 Notes will be payable on the earlier of the
Class A-4 Maturity Date and the Redemption Date, if any, pursuant to Section
10.01 of the Indenture. Notwithstanding the foregoing, the entire unpaid
principal amount of the Class A-4 Notes shall be due and payable on the date on
which an Event of Default shall have occurred and be continuing unless the
Required Holders waive such Event of Default.
Payments of interest on this Note due and payable on each Payment Date
shall be made by check mailed to the Person whose name appears as the Registered
Holder of this Note (or one or more Predecessor Notes) on the Note Register as
of the close of business on each Record Date, except that with respect to Notes
registered on the Record Date in the name of nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Note be submitted for notation of
payment. Any reduction in the principal amount of this Note (or any one or more
Predecessor Notes) affected by any payments made on any Payment Date shall be
binding upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Payment Date, then the Indenture Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Payment Date by notice mailed within
five (5) Business Days of such Payment Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York City.
A-4-5
<PAGE>
As provided in the Indenture, the Notes may be redeemed pursuant to Section
10.01 of the Indenture, in whole, but not in part, at the option of Financial,
on any Payment Date on or after the date on which the aggregate Principal Amount
of the Notes outstanding is less than 10% of the initial Contract Pool Principal
Balance as of the Initial Cutoff Date.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an eligible guarantor
institution which is a participant in the Securities Transfer Agent's Medallion
Program (STAMP) or similar signature guarantee program, and such other documents
as the Indenture Trustee may require, and thereupon one or more new program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new Class A-4 Notes of authorized denomination and in the same aggregate
principal amount will be issued to the designated transferee or transferees. No
service charge will be charged for any registration of transfer or exchange of
this Note, but the transferor may be required to pay a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial interest in a Note
covenants and agrees that no recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee in their individual capacities, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee or the Owner Trustee in their
individual capacities, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in their individual capacities, except as
any such Person may have expressly agreed (it being understood that the
Indenture Trustee and the Owner Trustee have no such obligations in their
individual capacities) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder, by acceptance of a Note or a beneficial interest in a Note
covenants and agrees that by accepting the benefits of the Indenture and such
Note that such Noteholder will not at any time institute against Financial, the
Trust Depositor or the Issuer, or join in any institution against the Trust
Depositor or the Issuer, of any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness which is solely
secured by the Collateral and that the Trust
A-4-6
<PAGE>
will be disregarded as a separate entity for federal income tax purposes
pursuant to Treasury Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder,
by acceptance of a Note or of a beneficial interest in a Note, agrees to treat
the Notes for the federal, state and local income, single business and franchise
tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer and the Indenture Trustee and any agent of the Issuer, the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Majority in Interest of its Notes.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Outstanding Amount of the Notes, on
behalf of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note (or any one of more Predecessor Notes) shall be conclusive and binding
upon such Holders and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
The Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
A-4-7
<PAGE>
EXHIBIT B
FORM OF CLASS B NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY
THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CIT EQUIPMENT COLLATERAL 2000-1
7.54% CLASS B RECEIVABLE-BACKED NOTES
REGISTERED $11,391,458
No. R-1 CUSIP NO. 125564AE4
CIT Equipment Collateral 2000-1, a business trust organized and existing
under the laws of the State of Delaware (herein referred to as the "Issuer"),
for value received, hereby promises to pay to Cede & Co., or its registered
assigns, the principal sum of Eleven Million Three Hundred Ninety-One Thousand
Four Hundred Fifty-Eight Dollars ($11,391,458) payable on the earlier of
November 20, 2008 (the "Class B Maturity Date") and the Redemption Date, if any,
pursuant to Section 10.01 of the Indenture referred to on the reverse hereof.
The Issuer will pay interest on this Note at the rate per annum shown above
on each Payment Date until the principal of this Note is paid or made available
for payment, on the principal amount of this Note outstanding on the preceding
Payment Date (after giving effect to all payments of principal made on the
preceding Payment Date), subject to certain limitations contained in the
Indenture. Interest on this Note will accrue for each Payment Date from the most
recent Payment Date on which interest has been paid to but excluding such
Payment Date or, if no interest has yet been paid, from the Closing Date.
Interest will be computed on the basis
B-1
<PAGE>
of a 360-day year of twelve 30-day months. Such principal of and interest
on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
The payment of interest and principal on the Class B Notes is subject to
certain prior payment rights of the Holders of Class A Notes, as set forth in
the Indenture.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
B-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
Date: May 10, 2000 CIT EQUIPMENT COLLATERAL 2000-1
By: Allfirst Financial Center National
Association, not in its individual
capacity but solely on behalf of the
Issuer as Owner Trustee under the
Trust Agreement
By:______________________________________
Name:
Title:
B-3
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
The Chase Manhattan Bank, not in its
individual capacity but solely as
Indenture Trustee
By: ________________________________
Authorized Signatory
B-4
<PAGE>
[REVERSE OF CLASS B NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 7.54% Class B Receivable-Backed Notes (the "Class B Notes"),
all issued under an Indenture, dated as of April 1, 2000 (the "Indenture"),
between the Issuer and The Chase Manhattan Bank, as Indenture Trustee (the
"Indenture Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are defined in the Indenture, as supplemented or amended,
shall have the meanings assigned to them in or pursuant to the Indenture, as so
supplemented or amended. All terms used in this Note that are defined in the
Pooling and Servicing Agreement dated as of April 1, 2000 by and among Newcourt
Financial USA Inc., AT&T Capital Corporation, NCT Funding Company, L.L.C. and
the Issuer (the "Pooling and Servicing Agreement") shall have the meanings
assigned to them therein.
The Class B Notes and the other Classes of Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture subject to the priorities of allocations as to interest and principal
payments as described therein and in the Pooling and Servicing Agreement.
Principal of the Class B Notes will be payable on the earlier of the
Class B Maturity Date and the Redemption Date, if any, pursuant to Section 10.01
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Class B Notes shall be due and payable on the date on which an
Event of Default shall have occurred and be continuing unless the Required
Holders waive such Event of Default.
Payments of interest on this Note due and payable on each Payment Date
shall be made by check mailed to the Person whose name appears as the Registered
Holder of this Note (or one or more Predecessor Notes) on the Note Register as
of the close of business on each Record Date, except that with respect to Notes
registered on the Record Date in the name of nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Note be submitted for notation of
payment. Any reduction in the principal amount of this Note (or any one or more
Predecessor Notes) affected by any payments made on any Payment Date shall be
binding upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Payment Date, then the Indenture Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Payment Date by notice mailed within
five (5) Business Days of such Payment Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York City.
B-5
<PAGE>
As provided in the Indenture, the Notes may be redeemed pursuant to
Section 10.01 of the Indenture, in whole, but not in part, at the option of
Financial, on any Payment Date on or after the date on which the aggregate
Principal Amount of the Notes outstanding is less than 10% of the initial
Contract Pool Principal Balance as of the Initial Cutoff Date.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an eligible guarantor
institution which is a participant in the Securities Transfer Agent's Medallion
Program (STAMP) or similar signature guarantee program, and such other documents
as the Indenture Trustee may require, and thereupon one or more new program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new Class B Notes of authorized denomination and in the same aggregate
principal amount will be issued to the designated transferee or transferees. No
service charge will be charged for any registration of transfer or exchange of
this Note, but the transferor may be required to pay a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial interest in a
Note covenants and agrees that no recourse may be taken, directly or indirectly,
with respect to the obligations of the Issuer, the Owner Trustee or the
Indenture Trustee on the Notes or under the Indenture or any certificate or
other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacities) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Each Noteholder, by acceptance of a Note or a beneficial interest in a
Note covenants and agrees that by accepting the benefits of the Indenture and
such Note that such Noteholder will not at any time institute against Financial,
the Trust Depositor or the Issuer, or join in any institution against the Trust
Depositor or the Issuer, of any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is issued
with the intention that, for federal, state and local income, single business
and franchise tax purposes, the Notes will qualify as indebtedness which is
solely secured by the Collateral and that the Trust
B-6
<PAGE>
will be disregarded as a separate entity for federal income tax purposes
pursuant to Treasury Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder,
by acceptance of a Note or of a beneficial interest in a Note, agrees to treat
the Notes for the federal, state and local income, single business and franchise
tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of this
Note, the Issuer and the Indenture Trustee and any agent of the Issuer, the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Majority in Interest of the Notes.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Outstanding Amount of the Notes, on
behalf of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note (or any one of more Predecessor Notes) shall be conclusive and binding
upon such Holders and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
The Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
B-7
<PAGE>
EXHIBIT C
FORM OF CLASS C NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT
INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CIT EQUIPMENT COLLATERAL 2000-1
7.63% CLASS C RECEIVABLE-BACKED NOTES
REGISTERED $15,188,611
No. R-1 CUSIP NO. 125564AF1
CIT Equipment Collateral 2000-1, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of Fifteen Million One Hundred
Eighty-Eight Thousand Six Hundred Eleven Dollars ($15,188,611) payable on the
earlier of November 20, 2008 (the "Class C Maturity Date") and the Redemption
Date, if any, pursuant to Section 10.01 of the Indenture referred to on the
reverse hereof.
The Issuer will pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in the
Indenture. Interest on this Note will accrue for each Payment Date from the most
recent Payment Date on which interest has been paid to but excluding such
Payment Date or, if no interest has yet been paid, from the Closing Date.
Interest will be computed on the basis
C-1
<PAGE>
of a 360-day year of twelve 30-day months. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
Payment of interest and principal on the Class C Notes is subject to
certain prior payment rights of the Holders of Class A and Class B Notes as set
forth in the Indenture.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
C-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date: May 10, 2000 CIT EQUIPMENT COLLATERAL 2000-1
By: Allfirst Financial Center National Association,
not in its individual capacity but solely on
behalf of the Issuer as Owner Trustee under
the Trust Agreement
By:______________________________________
Name:
Title:
C-3
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
The Chase Manhattan Bank, not in its individual
capacity but solely as Indenture Trustee
By: ____________________________________
Authorized Signatory
C-4
<PAGE>
[REVERSE OF CLASS C NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 7.63% Class C Receivable- Backed Notes (the "Class C Notes"),
all issued under an Indenture, dated as of April 1, 2000 (the "Indenture"),
between the Issuer and The Chase Manhattan Bank, as Indenture Trustee (the
"Indenture Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are defined in the Indenture, as supplemented or amended,
shall have the meanings assigned to them in or pursuant to the Indenture, as so
supplemented or amended. All terms used in this Note that are defined in the
Pooling and Servicing Agreement dated as of April 1, 2000 by and among Newcourt
Financial USA Inc., AT&T Capital Corporation, NCT Funding Company, L.L.C. and
the Issuer (the "Pooling and Servicing Agreement") shall have the meanings
assigned to them therein.
The Class C Notes and the other Classes of Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture subject to the priorities of allocations as to interest and principal
payments as described therein and in the Pooling and Servicing Agreement.
Principal of the Class C Notes will be payable on the earlier of the
Class C Maturity Date and the Redemption Date, if any, pursuant to Section 10.01
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Class C Notes shall be due and payable on the date on which an
Event of Default shall have occurred and be continuing unless the Required
Holders waive such Event of Default.
Payments of interest on this Note due and payable on each Payment Date
shall be made by check mailed to the Person whose name appears as the Registered
Holder of this Note (or one or more Predecessor Notes) on the Note Register as
of the close of business on each Record Date, except that with respect to Notes
registered on the Record Date in the name of nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Note be submitted for notation of
payment. Any reduction in the principal amount of this Note (or any one or more
Predecessor Notes) affected by any payments made on any Payment Date shall be
binding upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Payment Date, then the Indenture Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Payment Date by notice mailed within
five (5) Business Days of such Payment Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York City.
C-5
<PAGE>
As provided in the Indenture, the Notes may be redeemed pursuant to
Section 10.01 of the Indenture, in whole, but not in part, at the option of
Financial, on any Payment Date on or after the date on which the aggregate
Principal Amount of the Notes outstanding is less than 10% of the initial
Contract Pool Principal Balance as of the Initial Cutoff Date.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an eligible guarantor
institution which is a participant in the Securities Transfer Agent's Medallion
Program (STAMP) or similar signature guarantee program, and such other documents
as the Indenture Trustee may require, and thereupon one or more new program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new Class C Notes of authorized denomination and in the same aggregate
principal amount will be issued to the designated transferee or transferees. No
service charge will be charged for any registration of transfer or exchange of
this Note, but the transferor may be required to pay a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or beneficial interest in a
Note covenants and agrees that no recourse may be taken, directly or indirectly,
with respect to the obligations of the Issuer, the Owner Trustee or the
Indenture Trustee on the Notes or under the Indenture or any certificate or
other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacities) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Each Noteholder, by acceptance of a Note or a beneficial interest in a
Note covenants and agrees that by accepting the benefits of the Indenture and
such Note that such Noteholder will not at any time institute against Financial,
the Trust Depositor or the Issuer, or join in any institution against the Trust
Depositor or the Issuer of any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is issued
with the intention that, for federal, state and local income, single business
and franchise tax purposes, the Notes will qualify as indebtedness which is
solely secured by the Collateral and that the Trust
C-6
<PAGE>
will be disregarded as a separate entity for federal income tax purposes
pursuant to Treasury Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder,
by acceptance of a Note or of a beneficial interest in a Note, agrees to treat
the Notes for the federal, state and local income, single business and franchise
tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of this
Note, the Issuer and the Indenture Trustee and any agent of the Issuer, the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Majority in Interest of the Notes.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Outstanding Amount of the Notes, on
behalf of the Holders of all the Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note (or any one of more Predecessor Notes) shall be conclusive and binding
upon such Holders and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
The Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
C-7
<PAGE>
EXHIBIT D
FORM OF CLASS D NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT
INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CIT EQUIPMENT COLLATERAL 2000-1
8.09% CLASS D RECEIVABLE-BACKED NOTES
REGISTERED $18,985,762
No. R-1 CUSIP NO. 125564AG9
CIT Equipment Collateral 2000-1, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of Eighteen Million Nine Hundred and
Eighty-Five Thousand Seven Hundred Sixty-Two Dollars ($18,985,762) payable on
the earlier of November 20, 2008 (the "Class D Maturity Date") and the
Redemption Date, if any, pursuant to Section 10.01 of the Indenture referred to
on the reverse hereof.
The Issuer will pay interest on this Note at the rate per annum shown
above on each Payment Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made on
the preceding Payment Date), subject to certain limitations contained in the
Indenture. Interest on this Note will accrue for each Payment Date from the most
recent Payment Date on which interest has been paid to but excluding such
Payment Date or, if no interest has yet been paid, from the Closing Date.
Interest will be computed on the basis
D-1
<PAGE>
of a 360-day year of twelve 30-day months. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Payment of interest and principal on the Class D Notes is subject to
certain prior payment rights of the Holders of Class A, Class B and Class C
Notes as set forth in the Indenture.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
D-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date: May 10, 2000 CIT EQUIPMENT COLLATERAL 2000-1
By: Allfirst Financial Center National Association,
not in its individual capacity but solely on
behalf of the Issuer as Owner Trustee under
the Trust Agreement
By:______________________________________
Name:
Title:
D-3
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
The Chase Manhattan Bank, not in its
individual capacity but solely as
Indenture Trustee
By:______________________________________
Authorized Signatory
D-4
<PAGE>
[REVERSE OF CLASS D NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 8.09% Class D Receivable- Backed Notes (the "Class D Notes"),
all issued under an Indenture, dated as of April 1, 2000 (the "Indenture"),
between the Issuer and The Chase Manhattan Bank, as Indenture Trustee (the
"Indenture Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are defined in the Indenture, as supplemented or amended,
shall have the meanings assigned to them in or pursuant to the Indenture, as so
supplemented or amended. All terms used in this Note that are defined in the
Pooling and Servicing Agreement dated as of April 1, 2000 by and among Newcourt
Financial USA Inc., AT&T Capital Corporation, NCT Funding Company, L.L.C. and
the Issuer (the "Pooling and Servicing Agreement") shall have the meanings
assigned to them therein.
The Class D Notes and the other Classes of Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture subject to the priorities of allocations as to interest and principal
payments as described therein and in the Pooling and Servicing Agreement.
Principal of the Class D Notes will be payable on the earlier of the
Class D Maturity Date and the Redemption Date, if any, pursuant to Section 10.01
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Class D Notes shall be due and payable on the date on which an
Event of Default shall have occurred and be continuing unless the Required
Holders waive such Event of Default.
Payments of interest on this Note due and payable on each Payment Date
shall be made by check mailed to the Person whose name appears as the Registered
Holder of this Note (or one or more Predecessor Notes) on the Note Register as
of the close of business on each Record Date, except that with respect to Notes
registered on the Record Date in the name of nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Note be submitted for notation of
payment. Any reduction in the principal amount of this Note (or any one or more
Predecessor Notes) affected by any payments made on any Payment Date shall be
binding upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Payment Date, then the Indenture Trustee, in the name of and on
behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Payment Date by notice mailed within
five (5) Business Days of such Payment Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in New York City.
D-5
<PAGE>
As provided in the Indenture, the Notes may be redeemed pursuant to
Section 10.01 of the Indenture, in whole, but not in part, at the option of
Financial, on any Payment Date on or after the date on which the aggregate
Principal Amount of the Notes outstanding is less than 10% of the initial
Contract Pool Principal Balance as of the Initial Cutoff Date.
The Trust Depositor will have the right to purchase all of the Class D
Notes on any Payment Date (the "Purchase Date"), at a purchase price equal to
the principal balance thereof plus a premium equal to the excess, discounted as
described below, of (i) the amount of interest that would have accrued on the
Class D Notes at the Class D Interest Rate during the period commencing on and
including the Payment Date on which the Class D Notes are to be so purchased to
but excluding Class D Maturity Date, over (ii) the amount of interest that would
have accrued on the Class D Notes over the same period at a per annum rate of
interest equal to 0.25% plus the bond equivalent yield to maturity on the fifth
Business Day preceding such Payment Date of a United States Treasury security,
which is trading in the public securities market, maturing on a date closest to
the date equal to the remaining weighted average life of the Class D Notes. Such
excess shall be discounted to present value to such Payment Date at the yield
described in clause (ii) above. For purposes of the preceding two sentences
only, (i) the Class A Principal Balance upon which interest will be deemed to
accrue, and (ii) the weighted average remaining life of the Class D Notes, shall
be determined based upon the amortization of the Contract Pool Principal Balance
remaining at such Payment Date at a rate equal to 9.0% CPR. Interest payable on
the Class D notes on any such Payment Date shall be paid to the Holders of
record on the related Record Date in the ordinary manner. At such time as the
Depositor elects to so purchase the Class D Notes and notice thereof has been
given as provided in the Indenture, provided moneys are on deposit with the
Trustee in the amount necessary, and available, to pay the purchase price
thereof, (1) this Note shall be "deemed purchased" on the Purchase Date, whether
or not received by the Trustee on such date, (2) interest hereon, whether or not
this Note is received by the Trustee, shall cease to accrue on the Purchase Date
and the former Holder of this Note shall have no further interest or rights in
this Note except that said former Holder shall be entitled to payment of the
purchase price hereof, exclusively from moneys held by the Trustee for such
payment, upon presentation of this Note to the Trustee at the Place of Purchase
at or before 10:00 a.m., New York City time, on such Purchase Date or any
Business Day thereafter, (3) on and after the Purchase Date, the Trustee, the
Note Registrar and each Paying Agent shall no longer treat the former Holder of
this Note as the Holder hereof except for purposes of such Holder's right to
receive payment of the purchase price thereof and (4) the Indenture Trustee
shall authenticate one or more new Class D Notes in the name of its Trust
Depositor or its designee.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an eligible guarantor
institution which is a participant in the Securities Transfer Agent's Medallion
Program (STAMP) or similar signature guarantee program, and such other documents
as the Indenture Trustee may require, and thereupon one or more new program, and
such other documents as the Indenture Trustee may require, and
D-6
<PAGE>
thereupon one or more new Class D Notes of authorized denomination and in the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial interest in a
Note covenants and agrees that no recourse may be taken, directly or indirectly,
with respect to the obligations of the Issuer, the Owner Trustee or the
Indenture Trustee on the Notes or under the Indenture or any certificate or
other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacities) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Each Noteholder, by acceptance of a Note or a beneficial interest in a
Note covenants and agrees that by accepting the benefits of the Indenture and
such Note that such Noteholder will not at any time institute against Financial,
the Trust Depositor or the Issuer, or join in any institution against the Trust
Depositor or the Issuer of any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is issued
with the intention that, for federal, state and local income, single business
and franchise tax purposes, the Notes will qualify as indebtedness which is
solely secured by the Collateral and that the Trust will be disregarded as a
separate entity for federal income tax purposes pursuant to Treasury Regulations
Section 301.7701-3 (b)(1)(ii). Each Noteholder, by acceptance of a Note or of a
beneficial interest in a Note, agrees to treat the Notes for the federal, state
and local income, single business and franchise tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of this
Note, the Issuer and the Indenture Trustee and any agent of the Issuer, the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights
D-7
<PAGE>
of the Holders of the Notes under the Indenture at any time by the Issuer with
the consent of the Majority in Interest of the Notes. The Indenture also
contains provisions permitting the Holders of Notes representing specified
percentages of the Outstanding Amount of the Notes, on behalf of the Holders of
all the Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such Holders and upon
all future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of Holders of the Notes issued thereunder.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
D-8
<PAGE>
EXHIBIT E
[RESERVED]
E-1
<PAGE>
EXHIBIT F
FORM OF NOTE ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocably constituting
and appointing
________________________________________________________________________________
to transfer said Note on the books kept for registration thereof, with full
power of substitution in the premises.
Dated: ____________________
Signature Guaranteed:
_____________________________________ _______________________________________
Signature must be guaranteed by an Notice: The signature(s) on this
eligible guarantor institution which assignment must correspond with the
is a participant in the Securities name(s) as it appears on the face of
Transfer Agent's Medallion Program the within Note in every particular,
(STAMP) or similar signature without alteration or enlargement of
guarantee program any change whatsoever
___________________________________
(Authorized Officer)
F-1
<PAGE>
EXHIBIT G
FORM OF NOTE DEPOSITORY AGREEMENT
G-1
<PAGE>
EXHIBIT H
FORM OF CLASS A-2b NOTE TRANSFEREE LETTER
The Chase Manhattan Bank, as Note Registrar
and Indenture Trustee
450 West 33rd Street
New York, NY 10001
Re: Transfer of CIT Equipment Collateral 2000-1 Class A-2b Note
Ladies and Gentlemen:
This letter is delivered pursuant to Section 2.04 of the Indenture,
dated as of April 1, 2000 (the "Indenture"), between CIT Equipment Collateral
2000-1, as Issuer and The Chase Manhattan Bank, as indenture trustee, in
connection with the transfer by [ ] (the "Transferor") to the undersigned (the
"Transferee") of $__________ Initial Class A-2b Principal Amount, in
certificated, fully registered form (such registered interest being the
"Notes").
Capitalized terms used herein but defined in Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act") are used herein as
defined in Rule 144A. Other capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Indenture.
A. In connection with such transfer, the undersigned hereby certifies to the
Indenture Trustee and the Note Registrar as follows:
1. The Transferee (A) is a qualified institutional buyer under Rule
144A, (B) is aware that the sale of the Notes to it are being made in reliance
on the exemption from registration provided by Rule 144A under the Securities
Act or on another exemption from the registration requirements of the Securities
Act and (C) is acquiring the Notes for its own account or for one or more
accounts, each of which is a qualified institutional buyer and as to each of
which exercises sole investment discretion, for the Transferee and for each such
account.
2. The Transferee understands that the Notes are being offered only in
a transaction not involving any public offering in the United States within the
meaning of the Securities Act, the Notes have not been and will not be
registered under the Securities Act, and, if in the future the Transferee
decides to offer, resell, pledge or otherwise transfer the Notes, such Notes may
be offered, resold, pledged or otherwise transferred only in accordance with the
legend on such as Notes as set forth below. The Transferee acknowledges that no
representation is made by the Issuer as to the availability of any exemption
under the Securities Act or any state securities laws of resale of the Notes.
H-1
<PAGE>
3. The Transferee understands that the Notes offered in reliance on
Rule 144A or on another exemption from the registration requirements of the
Securities Act will bear the legend set forth below and will be represented by
one or more Notes.
4. The Transferee acknowledges that the Issuer is not and will not be
registered as an investment company under the Investment Company Act of 1940, as
amended (the "Investment Company Act"), but that the Issuer is relying on an
exemption from registration under the Investment Company Act.
5. The Transferee acknowledges the intention of the parties to the
Indenture that the Notes be treated as debt of the Issuer and agrees to treat
the Notes as debt of the Issuer.
6. The Transferee has had an opportunity to obtain any information
from, and ask any questions of, the Issuer and the Trust Depositor relevant to
an investment in the Notes and the risks of an investment in the Notes. The
Transferee has such knowledge and experience in financial and business matters
that the Transferee is capable of evaluating the merits and risks of the
Transferee's investment in the Notes and is able to bear such risks, and has
obtained, in the Transferee's judgment, sufficient information from the Issuer
and the Trust Depositor to evaluate the merits and risks of such investment.
7. The Transferee acknowledges and agrees that (i) it has received
copies of the final executed Transaction Documents, (ii) the terms and
provisions of such Transaction Documents will govern the Transferee's investment
in the Notes and will supersede all oral or written descriptions, summaries or
statements regarding the terms and provisions of all documentation relating to
such investment, (iii) no oral or written summary, description or statement
regarding the terms or provisions of all documentation relating to the
Transaction Documents or of any other documentation relating to the investment
to be made by the Transferee shall be deemed to constitute a representation by
the Issuer or the Trust Depositor or any other Person to the Transferee
regarding the terms or provisions of the Transaction Documents or such other
documentation to be made by the Transferee, nor shall the omission to include
any term or provision of the Transaction Documents or such other documentation
in any oral or written description, summary or statement regarding the terms of
the Transferee's investment be deemed a representation to the Transferee
regarding the absence of such term or provision from the Transaction Documents
or such other documentation, and (iv) in making an investment in the Notes, the
Transferee is not relying on any oral or written description, summary or
statement regarding the terms and provisions of the Transaction Documents or
such other documentation.
8. The Transferee acknowledges that certain payments on the Class A-2b
Notes are junior and subordinate to all of the other Notes in right of payment
and priority in accordance with Section 8.02(g) of the Indenture.
B. The Notes will bear a legend to the following effect unless the Issuer
determines otherwise in compliance with applicable law:
H-2
<PAGE>
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
THE ISSUER HAS NOT BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT
COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT COMPANY ACT"). THIS
SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED,
EXCEPT (A) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER, IN A TRANSACTION MEETING THE
REQUIREMENTS OF (i) RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A OR (ii)
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN
THE INDENTURE DATED AS OF APRIL 1, 2000 (THE "INDENTURE") BETWEEN THE
ISSUER AND THE CHASE MANHATTAN BANK, INCLUDING (WITHOUT LIMITATION)
DELIVERY OF AN INVESTOR LETTER IN THE FORM REQUIRED BY THE INDENTURE
AND WHICH MAY BE IN EITHER CASE EFFECTED WITHOUT LOSS OF ANY
APPLICABLE INVESTMENT COMPANY ACT EXEMPTION AND (B) IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND
ANY OTHER APPLICABLE JURISDICTION. EACH PURCHASER OF THIS SECURITY
WILL BE REQUIRED TO MAKE IN WRITING THE REPRESENTATIONS AND AGREEMENTS
SPECIFIED IN THE INDENTURE AND, BY ACCEPTANCE OF ANY SECURITY, WILL BE
DEEMED TO HAVE MADE SUCH ACKNOWLEDGMENTS, REPRESENTATIONS AND
AGREEMENTS. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO
FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO
TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY
INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE INDENTURE TRUSTEE OR
ANY INTERMEDIARY.
C. The Transferee:
[ ] has a U.S. Employer Identification Number and such number is
______________; or
[ ] does not have a U.S. employer identification number.
H-3
<PAGE>
D. Please make all payment due on the Notes:
(a) by wire transfer to the following account at a bank or other
entity in the United States, having appropriate facilities therefor:
Account Number ____________________ Institution
(b) by mailing a check to the following address:
_____________________________
_____________________________
_____________________________
_____________________________
Very truly yours,
[Name of Transferee]
By: _______________________
Name:
Title:
H-4
<PAGE>
AMENDED AND RESTATED
TRUST AGREEMENT
by and between
NCT FUNDING COMPANY, L.L.C.
as Trust Depositor,
and
ALLFIRST FINANCIAL CENTER NATIONAL ASSOCIATION
as Owner Trustee
Dated as of April 1, 2000
CIT EQUIPMENT COLLATERAL 2000-1
<PAGE>
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS..................................................................................1
Section 1.01. Defined Terms Generally..........................................................1
Section 1.02. Specific Defined Terms...........................................................1
Section 1.03. Usage of Terms...................................................................4
Section 1.04. Section References...............................................................4
Section 1.05. Accounting Terms.................................................................4
ARTICLE II ORGANIZATION AND ESTABLISHMENT OF TRUST.....................................................4
Section 2.01. Establishment of Trust; Name.....................................................4
Section 2.02. Office...........................................................................5
Section 2.03. Purposes and Powers..............................................................5
Section 2.04. Appointment of Owner Trustee.....................................................6
Section 2.05. Initial Capital Contribution; Organizational Expenses............................6
Section 2.06. Declaration of Trust.............................................................6
Section 2.07. Liability of Trust Depositor.....................................................6
Section 2.08. Title to Trust Property..........................................................7
Section 2.09. Situs of Trust...................................................................7
Section 2.10. Representations and Warranties of the Trust Depositor............................7
Section 2.11. Federal Income Tax Treatment.....................................................8
ARTICLE III EQUITY CERTIFICATE AND TRANSFERS OF INTERESTS THEREIN.....................................10
Section 3.01. Initial Ownership...............................................................10
Section 3.02. The Equity Certificate..........................................................10
Section 3.03. Authentication and Delivery of Equity Certificate...............................10
Section 3.04. Registration of Transfer and Exchange of the Equity Certificate.................11
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Equity Certificate...................11
Section 3.06. Persons Deemed Owners...........................................................12
Section 3.07. Access to List of Equity Certificateholder's Name and Addresses.................12
Section 3.08. Maintenance of Office or Agency.................................................12
Section 3.09. Ownership by Trust Depositor of Equity Certificate..............................12
ARTICLE IV ACTIONS BY OWNER TRUSTEE...................................................................13
Section 4.01. Prior Notice to Equity Certificateholder with Respect to Certain Matters........13
Section 4.02. Action by Owner with Respect to Certain Matters.................................13
Section 4.03. Action by Owner with Respect to Bankruptcy......................................14
Section 4.04. Restrictions on Owner's Power...................................................14
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ARTICLE V APPLICATION AND DISTRIBUTION OF TRUST FUNDS; CERTAIN DUTIES................................15
Section 5.01. [Reserved]......................................................................15
Section 5.02. [Reserved]......................................................................15
Section 5.03. Reports.........................................................................15
Section 5.04. Taxes...........................................................................15
Section 5.05. Method of Payment...............................................................15
Section 5.06. No Segregation of Moneys; No Interest...........................................15
Section 5.07. Accounting and Reports to the Equity Certificateholder, the Internal
Revenue Service and Others.................................................16
Section 5.08. Signature on Returns; Tax Matters Partner.......................................16
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE......................................................17
Section 6.01. General Authority...............................................................17
Section 6.02. General Duties..................................................................17
Section 6.03. Action Upon Instruction.........................................................17
Section 6.04. No Duties Except as Specified in This Agreement or in Instructions..............18
Section 6.05. No Action Except Under Specified Documents or Instructions......................19
Section 6.06. Restrictions....................................................................19
Section 6.07. Administration Agreement........................................................19
ARTICLE VII CONCERNING THE OWNER TRUSTEE..............................................................21
Section 7.01. Acceptance of Trusts and Duties.................................................21
Section 7.02. Furnishing of Documents.........................................................22
Section 7.03. Representations and Warranties..................................................22
Section 7.04. Reliance; Advice of Counsel.....................................................23
Section 7.05. Not Acting in Individual Capacity...............................................23
Section 7.06. Owner Trustee Not Liable for Notes, Equity Certificate or Contracts.............23
Section 7.07. Owner Trustee May Own Notes.....................................................24
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE............................................................25
Section 8.01. Owner Trustee's Fees and Expenses...............................................25
Section 8.02. Indemnification.................................................................25
Section 8.03. Non-recourse Obligations........................................................26
ARTICLE IX TERMINATION OF TRUST.......................................................................27
Section 9.01. Termination of Trust............................................................27
Section 9.02. Dissolution upon Bankruptcy of Trust Depositor..................................28
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES......................................29
Section 10.01. Eligibility Requirements for Owner Trustee.....................................29
Section 10.02. Resignation or Removal of Owner Trustee........................................29
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Section 10.03. Successor Owner Trustee........................................................30
Section 10.04. Merger or Consolidation of Owner Trustee.......................................30
Section 10.05. Appointment of Co-Trustee or Separate Trustee..................................30
ARTICLE XI MISCELLANEOUS..............................................................................33
Section 11.01. Supplements and Amendments.....................................................33
Section 11.02. Limitations on Rights of Others................................................34
Section 11.03. Notices........................................................................34
Section 11.04. Severability of Provisions.....................................................35
Section 11.05. Counterparts...................................................................35
Section 11.06. Successors and Assigns.........................................................35
Section 11.07. No Petition....................................................................36
Section 11.08. No Recourse....................................................................36
Section 11.09. Headings.......................................................................36
Section 11.10. Governing Law..................................................................36
Section 11.11. Certain Servicer Payment Obligations...........................................36
Section 11.12. JURISDICTION...................................................................36
Section 11.13. WAIVER OF JURY TRIAL...........................................................37
EXHIBITS
Exhibit A - [RESERVED] A-1
Exhibit B - Form of Equity Certificate B-1
</TABLE>
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This AMENDED AND RESTATED TRUST AGREEMENT dated as of April 1,
2000, is made by and between NCT Funding Company, L.L.C., a Delaware limited
liability company, as Trust Depositor (the "Trust Depositor"), and Allfirst
Financial Center National Association, as Owner Trustee.
Whereas, the parties hereto wish to amend and restate the
Trust Agreement dated as of March 31, 2000, as amended and restated as of March
31, 2000 (the "Original Trust Agreement").
Whereas, in connection herewith the Trust Depositor is willing
to assume certain obligations pursuant hereto, and
Whereas, in connection herewith the Trust Depositor is willing
to purchase the Equity Certificate (as defined herein) to be issued pursuant to
this Agreement and to assume certain obligations pursuant hereto;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and for other good and valuable consideration, the receipt and
adequacy of which are acknowledged, the parties hereto agree that the Original
Trust Agreement shall be amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms Generally. Capitalized terms used
that are not otherwise specifically defined herein shall have the same meaning
given to such terms when used in the Pooling Agreement (as defined in Section
1.02 below).
Section 1.02. Specific Defined Terms. Whenever used in this
Agreement, the following words and phrases, unless otherwise specified or the
context otherwise requires, shall have the following meanings:
"Administration Agreement" means the Administration Agreement,
dated as of the date hereof, among the Trust, the Trust Depositor, the Indenture
Trustee, the Owner Trustee, and TCC, as Administrator.
"Administrator" has the meaning given such term in the
Administration Agreement.
"Agreement" means this Amended and Restated Trust Agreement,
as the same may be amended, supplemented or restated from time to time.
"Benefit Plan" means (i) an employee benefit plan (as such
term is defined in Section 3(3) of ERISA) that is subject to the provisions of
Title I of ERISA, (ii) a plan described
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in Section 4975(e)(1) of the Code or (iii) any entity whose underlying assets
include plan assets by reason of a plan's investment in the entity.
"Business Day" means any day other than a Saturday, Sunday or
other day on which banking institutions in the cities of Millsboro, Delaware,
Baltimore, Maryland, Livingston, New Jersey, or New York, New York are
authorized or obligated by law, executive order or governmental decree to be
closed.
"Business Trust Statute" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss. 3801 et seq., as the same may be amended from
time to time.
"Certificate of Trust" means the Certificate of Trust filed
for the Trust with the Secretary of State on March 31, 2000, as amended and
restated by the Restated Certificate of Trust filed for the Trust with the
Secretary of State on April 26, 2000.
"Certificate Register" and "Certificate Registrar" mean the
register maintained and the registrar (or any successor thereto) appointed
pursuant to Section 3.04.
"Closing Date" means May 10, 2000.
"Code" means the Internal Revenue Code of 1986, as amended.
"Equity Certificate" means the trust certificate evidencing
the beneficial equity interest of the Owner in the Trust and Trust Assets,
substantially in the form of Exhibit B hereto.
"Equity Certificateholder" means the Person in whose name the
Equity Certificate is registered in the Certificate Register.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expenses" shall have the meaning assigned to such term in
Section 8.02.
"Financial" means Newcourt Financial USA Inc., a Delaware
corporation.
"Foreign Person" means any Person other than (i) a citizen or
resident of the United States, (ii) a corporation, partnership or other entity
organized in or under the laws of the United States or any political subdivision
thereof, (iii) an estate the income of which is subject to U.S. federal income
taxation regardless of its source, or (iv) a trust whose administration is
subject to the primary supervision of a court within the United States and which
has one or more U.S. fiduciaries who have authority to control all substantial
decisions of the Trust.
"Holder" means a Noteholder or the Equity Certificateholder,
as applicable.
"Indemnified Parties" shall have the meaning assigned to such
term in Section 8.02.
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"Indenture" means the Indenture dated as of the date of this
Agreement by and between the Trust and The Chase Manhattan Bank, as Indenture
Trustee.
"Note Depository Agreement" means the Agreement dated as of
the Closing Date among the Trust, the Indenture Trustee, the Administrator and
DTC, as the Clearing Agency, relating to the Notes, as the same may be amended
and supplemented from time to time.
"Notes" means the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes, and
the Class D Notes in each case issued pursuant to the Indenture.
"Noteholders" means each Person in whose name a Note is
registered in the Note Register maintained by the Indenture Trustee.
"Owner" means the Equity Certificateholder.
"Owner Trustee" means Allfirst Financial Center National
Association, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"Owner Trustee Corporate Trust Office" means the office of the
Owner Trustee at which its corporate trust business shall be administered, which
initially shall be 499 Mitchell Road - MC 101-591, Millsboro, DE 19966 or such
other office at such other address in the State of Delaware as the Owner Trustee
may designate from time to time by notice to the Equity Certificateholder, the
Servicer, the Indenture Trustee and the Trust Depositor.
"Person" means any individual, corporation, estate,
partnership, joint venture, association, limited liability company, joint stock
company, trust (including any beneficiary thereof) unincorporated organization
or government or any agency or political subdivision thereof.
"Pooling Agreement" means the Pooling and Servicing Agreement,
dated as of April 1, 2000, among the Trust, the Trust Depositor, Financial, and
TCC, in its individual capacity and as Servicer thereunder, as the same may be
amended, supplemented or restated from time to time.
"Required Holders" has the meaning given such term in the
Pooling Agreement.
"Secretary of State" means the Secretary of State of the State
of Delaware.
"TCC" means AT&T Capital Corporation, a Delaware corporation.
"Treasury Regulations" means regulations, including proposed
or temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
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"Trust" means the trust continued and governed by this
Agreement, the estate of which consists of the Trust Assets.
"Trust Assets" means all right, title and interest of the
Trust in and to the property, proceeds and rights assigned to the Trust pursuant
to Article Two of the Pooling Agreement, all funds on deposit from time to time
in the Trust Accounts (including all investments therein and proceeds and income
therefrom), and all other property of the Trust from time to time, including any
rights of the Owner Trustee and the Trust pursuant to the Pooling Agreement and
the Administration Agreement, but not including any of such property which has
been released and reconveyed from the Trust in accordance with and pursuant to
the Pooling Agreement.
"Trust Depositor" means NCT Funding Company, L.L.C. in its
capacity as Trust Depositor hereunder, and its successors.
"Trust Estate" means all right, title and interest of the
Trust in and to the property, proceeds and rights assigned to the Trust pursuant
to Article Two of the Pooling Agreement, all funds on deposit from time to time
in the Trust Accounts (including all investments therein and proceeds and income
therefrom), and all other property of the Trust from time to time, including any
rights of the Owner Trustee and the Trust pursuant to the Pooling Agreement and
the Administration Agreement, but not including any of such property which has
been released and reconveyed from the Trust in accordance with and pursuant to
the Pooling Agreement.
Section 1.03. Usage of Terms. With respect to all terms in
this Agreement, the singular includes the plural and the plural the singular;
words importing one gender include the other gender; references to "writing"
include printing, typing, lithography and other means of reproducing words in a
visible form; references to agreements and other contractual instruments include
all amendments, modifications and supplements thereto or any changes therein
entered into in accordance with their respective terms and not prohibited by
this Agreement; references to Persons include their permitted successors and
assigns; and the term "including" means "including without limitation".
Section 1.04. Section References. All section references,
unless otherwise indicated, shall be to Sections in this Agreement.
Section 1.05. Accounting Terms. All accounting terms used but
not specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
ARTICLE II
ORGANIZATION AND ESTABLISHMENT OF TRUST
Section 2.01. Establishment of Trust; Name. The Trust shall be
known as "CIT Equipment Collateral 2000-1", in which name the Owner Trustee may
conduct the activities of the Trust, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued on behalf of the Trust.
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Section 2.02. Office. The office of the Trust shall be in care
of the Owner Trustee at the Owner Trustee Corporate Trust Office or at such
other address as the Owner Trustee may designate by written notice to the
Noteholders and the Trust Depositor.
Section 2.03. Purposes and Powers.
(a) The sole purpose of the Trust is to manage the Trust
Assets, and collect and disburse the periodic income therefrom for the use and
benefit of the Equity Certificateholder, and in furtherance of such purpose to
engage in the following ministerial activities:
(i) to issue the Notes pursuant to the Indenture
and the Equity Certificate pursuant to this
Agreement;
(ii) with the proceeds of the sale of the Notes
and the Equity Certificate, to purchase the
Contracts and other Trust Assets, and to pay
organizational, start-up and transactional
expenses of the Trust (to the extent not paid
by the Trust Depositor or the Servicer or
Administrator); and to pay the balance to the
Owner from time to time pursuant to the
Pooling Agreement;
(iii) to acquire, hold, manage, distribute, dispose
of, release or convey, to or at the direction
of the Owner pursuant to the Pooling
Agreement, any portion of the Trust Assets in
the manner described in and pursuant to the
Pooling Agreement;
(iv) to enter into, execute, deliver and perform
its obligations under the Transaction
Documents to which it is or becomes a party;
(v) to engage in those activities, including
entering into, executing, delivering, and
performing agreements, that are necessary,
suitable or convenient to accomplish the
foregoing or are incidental thereto or
connected therewith; and
(vi) subject to compliance with the Transaction
Documents, to engage in such other activities
as may be required in connection with
conservation of the Trust Assets and the
making of distributions to the Owner and the
Noteholders.
(b) The Owner Trustee is hereby authorized to engage in the
foregoing activities on behalf of the Trust. The Trust shall not engage in any
activities other than in connection with the foregoing. Nothing contained herein
shall be deemed to authorize the Owner Trustee to engage in any business
operations or any activities other than those set forth in this Section 2.03.
Specifically, the Owner Trustee shall have no authority to engage in any
business operations, or acquire any assets other than those specifically
included in the Trust Assets, or otherwise vary the assets held by the Trust.
Similarly, the Owner Trustee shall have no
5
<PAGE>
discretionary duties other than performing those ministerial acts set forth
above necessary to accomplish the purpose of this Trust as set forth in this
Section 2.03.
Section 2.04. Appointment of Owner Trustee. The Trust
Depositor appointed the Owner Trustee as trustee of the Trust effective as of
the date of the Original Trust Agreement, and as of the date hereof the Owner
Trustee shall have all the rights, powers and duties set forth herein and in the
Business Trust Statute, and the Owner Trustee hereby accepts such appointment.
Section 2.05. Organizational Expenses. The Trust Depositor
shall pay or provide for the payment of organizational expenses of the Trust as
they may arise or shall, upon the request of the Owner Trustee, promptly
reimburse or provide for the reimbursement of the Owner Trustee for any such
expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust. The Owner Trustee hereby
declares that it will hold the Trust Assets in trust upon and subject to the
conditions set forth herein for the sole purpose of conserving the Trust Assets
and collecting and disbursing the periodic income therefrom for the use and
benefit of the Owner, subject to the obligations of the Trust under the
Transaction Documents. It is the intention of the parties hereto that the Trust
constitute a business trust under the Business Trust Statute and that this
Agreement constitute the governing instrument of such business trust. Effective
as of the date hereof, the Owner Trustee shall have all rights, powers and
duties set forth herein and in the Business Trust Statute for the sole purpose
and to the extent necessary to accomplish the purposes of this Trust as set
forth in Section 2.03.
Section 2.07. Liability of Trust Depositor.
(a) Pursuant to Section 3803(a) of the Business Trust Statute,
the Trust Depositor as Owner shall be liable directly to and will indemnify any
injured party or any other creditor of the Trust for all losses, claims,
damages, liabilities and expenses of the Trust to the extent that the Owner
would be liable if the Trust were a partnership under the Delaware Revised
Uniform Limited Partnership Act in which Trust Depositor were a general partner;
provided, however, that the Owner shall not be liable for any losses incurred by
the Equity Certificateholder in the capacity of an investor in the Equity
Certificate or a Noteholder in the capacity of an investor in the Notes; and
provided further, that the Owner shall not be so liable to any injured party or
other creditor if such party has agreed that its recourse against the Trust for
any obligation or liability of the Trust to such party shall be limited to the
assets of the Trust. In addition, any third party creditors of the Trust (other
than in connection with the obligations described in the immediately preceding
sentence for which the Owner shall not be liable) shall be deemed third party
beneficiaries of this paragraph.
(b) No Equity Certificateholder, other than to the extent set
forth in Section 2.07(a), shall have any personal liability for any liability or
obligation of the Trust or by reason of any action taken by the parties to this
Agreement pursuant to any provisions of this Agreement or any other Transaction
Document.
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Section 2.08. Title to Trust Property. Legal title to the
Trust Assets shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Trust Assets to be vested in an owner trustee or owner trustees, in
which case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
Section 2.09. Situs of Trust. The Trust will be located and
administered in the State of Delaware, the State of New York or the State of
Maryland. All bank accounts maintained by the Owner Trustee on behalf of the
Trust shall be located in the State of Maryland or the State of Delaware. The
Trust shall not have any employees in any state other than Delaware; provided,
however, that nothing herein shall restrict or prohibit the Owner Trustee, TCC
or any agent of the Trust from having employees within or without the State of
Delaware. Payments will be received by the Trust only in Delaware, New York or
Maryland and payments will be made by the Trust only from Delaware, New York or
Maryland. The only office of the Trust will be at the Owner Trustee Corporate
Trust Office.
Section 2.10. Representations and Warranties of the Trust
Depositor.
The Trust Depositor hereby represents and warrants to the
Owner Trustee, that:
(i) The Trust Depositor is duly organized and validly
existing as a limited liability company organized and
existing, and in good standing, under the laws of the
State of Delaware, with power and authority to own its
properties and to conduct its business and had at all
relevant times, and has, power, authority and legal
right to acquire and own the assets conveyed and to be
conveyed by it to the Trust from time to time.
(ii) The Trust Depositor is duly qualified to do business as
a foreign limited liability company in good standing
and has obtained all necessary licenses and approvals
in all jurisdictions in which the ownership or lease of
property or the conduct of its business requires such
qualifications.
(iii) The Trust Depositor has the power and authority to
execute and deliver this Agreement and to carry out its
terms; the Trust Depositor has full power and authority
to sell and assign the property to be sold and assigned
from time to time to and deposited with the Owner
Trustee on behalf of the Trust as part of the Trust
Assets and has or will have duly authorized such sale
and assignment and deposit with the Owner Trustee on
behalf of the Trust by all necessary entity action; the
execution, delivery and performance of this Agreement
have been duly authorized by the Trust Depositor by all
necessary entity action; and this Agreement constitutes
the legal, valid and binding obligation of the Trust
Depositor, enforceable in accordance with its terms,
except as such enforcement may be limited by
bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and by the
availability of equitable remedies.
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<PAGE>
(iv) The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof
do not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the
certificate of formation or limited liability company
agreement of the Trust Depositor, or any indenture,
agreement or other instrument to which the Trust
Depositor is a party or by which it is bound; nor
result in the creation or imposition of any Lien upon
any of the properties of the Trust Depositor pursuant
to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Transaction
Documents); nor violate any law or any order, rule or
regulation applicable to the Trust Depositor of any
court or of any federal or state regulatory body,
administrative agency or other governmental
instrumentality having jurisdiction over the Trust
Depositor or its properties.
(v) All approvals, authorizations, consents, orders or
other actions of any Person or any governmental entity
required in connection with the execution and delivery
of this Agreement and the fulfillment of the terms
hereof have been obtained.
(vi) There are no proceedings or investigations pending, or
to the Trust Depositor's knowledge threatened, before
any court, regulatory body, administrative agency or
other governmental instrumentality having jurisdiction
over the Trust Depositor or its properties: (A)
asserting the invalidity of this Agreement or any of
the other Transaction Documents, (B) seeking to prevent
the issuance of the Equity Certificate or the
consummation of any of the transactions contemplated by
this Agreement or the other Transaction Documents, (C)
seeking any determination or ruling that might
materially and adversely affect the performance by the
Trust Depositor of its obligations under, or the
validity or enforceability of, this Agreement, the
Equity Certificate or any other Transaction Document,
or (D) involving the Trust Depositor and which might
adversely affect the federal income tax or other
federal, state or local tax attributes of the Equity
Certificate.
Section 2.11. Federal Income Tax Treatment. It is the
intention of the Trust Depositor that the Trust be disregarded as a separate
entity for federal income tax purposes pursuant to Treasury Regulations Section
301.7701-3(b)(1)(ii) as in effect for periods after January 1, 1997. The Equity
Certificate constitutes the sole equity interest in the Trust and must at all
times be held by either the Trust Depositor or its transferee as sole Owner. The
Trust Depositor agrees not to take any action inconsistent with such intended
federal income tax treatment. Because for federal income tax purposes the Trust
will be disregarded as a separate entity, Trust items of income, gain, loss and
deduction for any month as determined for federal income tax purposes shall be
allocated entirely to the Owner; provided, that this sentence shall not limit or
otherwise affect the provisions of the Transaction Documents pertaining to
distributions of Trust Assets or proceeds thereof to Persons other than the
Trust Depositor.
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ARTICLE III
EQUITY CERTIFICATE AND TRANSFERS OF INTERESTS THEREIN
Section 3.01. Initial Ownership.
(a) Upon the formation of the Trust and until the issuance of
the Equity Certificate, the Trust Depositor shall be the sole beneficiary of the
Trust. The Equity Certificate must at all times be held by either the Trust
Depositor or its transferee (to the extent permitted under Section 3.01(b)) as
sole owner.
(b) No transfer of the Equity Certificate shall be made unless
such transfer is made in a transaction which does not require registration or
qualification under the Securities Act or qualification under any state
securities or "Blue Sky" laws. Neither the Owner Trustee nor the Certificate
Registrar shall effect the registration of any transfer of the Equity
Certificate unless, prior to such transfer the Owner Trustee shall have received
(i) a Tax Opinion, and (ii) a certificate from the proposed transferee
certifying that (A) following such transfer, there would be no more than one
holder of the Equity Certificate and the holder of the Equity Certificate would
not be a Foreign Person, a partnership, Subchapter S corporation or grantor
trust and (B) such transfer does not violate any state securities or Blue Sky
laws or the Securities Act.
Section 3.02. The Equity Certificate.
(a) On the Closing Date, the Equity Certificate shall be
issued to the Trust Depositor, substantially in the form of Exhibit B hereto.
Upon receipt of a written order by the Owner Trustee from the Trust Depositor to
execute and authenticate the Equity Certificate, the Equity Certificate shall be
executed by the Owner Trustee on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Owner Trustee and, when so executed
and authenticated pursuant to Section 3.03, shall be deemed to have been validly
issued and shall be entitled to the benefits of this Agreement. The Equity
Certificate bearing the manual or facsimile signature of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Owner Trustee shall be a valid and binding obligation of the Trust,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Certificate or did
not hold such offices at the date of the authentication and delivery of the
Equity Certificate. The Equity Certificate shall be dated the date of its
authentication.
Section 3.03. Authentication and Delivery of Equity
Certificate. The Equity Certificate shall not entitle its holder to any benefit
under this Agreement, or be valid for any purpose, unless there shall appear on
such Equity Certificate a certificate of authentication substantially in the
form set forth in Exhibit B executed by the Owner Trustee or its authenticating
agent, by manual or facsimile signature; such authentication shall constitute
conclusive evidence that the Equity Certificate shall have been duly
authenticated and delivered hereunder.
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Section 3.04. Registration of Transfer and Exchange of the
Equity Certificate.
(a) The Certificate Registrar shall maintain or cause to be
maintained, at the office or agency maintained pursuant to Section 3.08, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, it shall provide for the registration of the Equity Certificate and
of transfers and exchanges of the Equity Certificate as provided in this
Agreement. The Owner Trustee is hereby initially appointed Certificate Registrar
for the purpose of registering the Equity Certificate and transfers and
exchanges of the Equity Certificate as provided in this Agreement. In the event
that the Owner Trustee notifies the Servicer that it is unable to act as
Certificate Registrar, the Servicer shall appoint another bank or trust company,
having an office or agency located in the State of Delaware, agreeing to act in
accordance with the provisions of this Agreement applicable to it, and otherwise
acceptable to the Owner Trustee, to act as successor Certificate Registrar
hereunder.
(b) Upon surrender for registration of transfer of the Equity
Certificate otherwise permitted to be transferred in accordance herewith at the
office or agency maintained pursuant to Section 3.08, the Owner Trustee shall
(subject to Section 3.01(b)) execute, authenticate and deliver (or shall cause
its authenticating agent to authenticate and deliver), in the name of the
designated transferee, one new Equity Certificate.
(c) Every Equity Certificate presented or surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate Registrar
duly executed by the Holder thereof or his attorney duly authorized in writing.
(d) No service charge shall be made for any registration of
transfer or exchange of the Equity Certificate, but the Owner Trustee or
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any transfer of
the Equity Certificate.
(e) All Equity Certificates surrendered for registration of
transfer or exchange shall be canceled and subsequently destroyed by the Owner
Trustee or Certificate Registrar in accordance with its customary practice.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust
Equity Certificate. If (a) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Equity Certificate, and
(b) there is delivered to the Certificate Registrar and the Owner Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice that such Equity Certificate has been acquired by
a bona fide or protected purchaser, the Owner Trustee on behalf of the Trust
shall execute and the Owner Trustee or its authenticating agent shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Equity Certificate, a replacement Equity Certificate
of like tenor. In connection with the issuance of any replacement Equity
Certificate under this Section, the Owner Trustee or Certificate Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other
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expenses (including the reasonable fees and expenses of the Owner Trustee and
the Certificate Registrar) connected therewith. Any replacement Equity
Certificate issued pursuant to this Section shall constitute conclusive evidence
of beneficial ownership in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Equity Certificate shall be found at any time.
Section 3.06. Persons Deemed Owners. Prior to due presentation
of an Equity Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar and any of their respective agents may treat the Person in
whose name the Equity Certificate is registered as the owner of the Equity
Certificate for the purpose of receiving distributions pursuant to Section 5.02
and for all other purposes whatsoever, and none of the Owner Trustee, the
Certificate Registrar or any of their respective agents shall be affected by any
notice of the contrary.
Section 3.07. Access to List of Equity Certificateholder's
Name and Addresses. The Owner Trustee shall furnish or cause to be furnished to
the Servicer, the Indenture Trustee and the Trust Depositor within 15 days after
receipt by the Owner Trustee of a written request therefor from the Servicer,
the Indenture Trustee or the Trust Depositor, the name and address of the Equity
Certificateholder as of the most recent Record Date in such form as the
Servicer, the Indenture Trustee or the Trust Depositor may reasonably require.
The Equity Certificateholder, by receiving and holding the Equity Certificate,
agrees that neither the Servicer, the Trust Depositor nor the Owner Trustee, nor
any agent thereof, shall be held accountable by reason of the disclosure of any
such information as to the name and address of the Equity Certificateholder
hereunder, regardless of the source from which such information was derived.
Section 3.08. Maintenance of Office or Agency. The Owner
Trustee shall maintain in the State of Delaware an office or offices or agency
or agencies where an Equity Certificate may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Owner Trustee
in respect of the Equity Certificate and any Transaction Documents may be
served. The Owner Trustee initially designates the Owner Trustee Corporate Trust
Office as its office for such purposes. The Owner Trustee shall give prompt
written notice to the Trust Depositor, the Servicer, the Administrator and the
Equity Certificateholder of any change in the location of the Certificate
Register or any such office or agency.
Section 3.09. Ownership by Trust Depositor of Equity
Certificate. The Trust Depositor shall on the Closing Date purchase from the
Trust the Equity Certificate.
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Equity Certificateholder with
Respect to Certain Matters. Subject to the provisions and limitations of Section
4.04, with respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Equity Certificateholder in writing of the
proposed action, the Indenture Trustee shall have consented to such action in
the event any Notes are outstanding and the Equity Certificateholder shall not
have notified the Owner Trustee in writing prior to the 30th day after such
notice is given that such Equity Certificateholder has withheld consent or
provided alternative direction:
(a) the initiation of any material claim or lawsuit by the
Trust (except claims or lawsuits brought in connection with the collection of
Trust Assets) and the compromise of any material action, claim or lawsuit
brought by or against the Trust (except with respect to the aforementioned
claims or lawsuits for collection of Trust Assets);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under the
Business Trust Statute);
(c) the amendment of the Indenture by a supplemental
indenture, the Cash Collateral Account Agreement, the Class A-2 Swap Agreement
or the Class A-3 Swap Agreement in circumstances where the consent of any
Noteholder is required;
(d) the amendment of the Indenture by a supplemental
indenture, the Cash Collateral Account Agreement or the Class A-3 Swap Agreement
in circumstances where the consent of any Noteholder is not required and such
amendment materially and adversely affects the interest of the Owner;
(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to amend or supplement
any provision in a manner or add any provision that would not materially and
adversely affect the interest of the Owner; or
(f) the appointment pursuant to the Indenture of a successor
Note Registrar, Paying Agent or Indenture Trustee or pursuant to this Agreement
of a successor Certificate Registrar, or the consent to the assignment by the
Note Registrar, Paying Agent, Indenture Trustee or Certificate Registrar of its
obligations under the Indenture or this Agreement, as applicable.
Section 4.02. Action by Owner with Respect to Certain Matters.
Subject to the provisions and limitations of Section 4.04, the Owner Trustee
shall not have the power, except upon the direction of the Owner, to (a) remove
the Administrator pursuant to Section 8 of the Administration Agreement, (b)
appoint a successor Administrator pursuant to Section 8 of the Administration
Agreement, (c) remove the Servicer pursuant to Article VIII of the Pooling
Agreement, (d) except as otherwise expressly provided in the relevant
Transaction Documents,
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release or convey from the Trust any Trust Assets, (e) initiate any claim, suit
or proceeding by the Trust or compromise any claim, suit or proceeding brought
by or against the Trust, (f) authorize the merger or consolidation of the Trust
with or into any other business trust or entity (other than in accordance with
applicable restrictions or conditions thereon contained in the relevant
Transaction Document) or (g) amend the Certificate of Trust (unless such
amendment is required to be filed under the Business Trust Statute). Except to
the extent otherwise provided in (d), (f) and (g) above, the Owner Trustee shall
take the actions referred to in the preceding sentence upon (and only upon)
written instructions signed by the Owner.
Section 4.03. Action by Owner with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in a
bankruptcy relating to the Trust without the prior approval of the Owner and the
delivery to the Owner Trustee by such Owner of a certificate certifying that
such Owner reasonably believes that the Trust is no longer Solvent.
Section 4.04. Restrictions on Owner's Power. Neither the
Administrator nor the Owner shall direct the Owner Trustee to take or to refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Trust or the Owner Trustee under this Agreement or any of the
other Transaction Documents, or would be contrary to the purpose of this Trust
as set forth in Section 2.03, nor shall the Owner Trustee be obligated to follow
any such direction, if given, or to determine whether any such direction
violates this Section 4.04.
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ARTICLE V
APPLICATION AND DISTRIBUTION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. [Reserved].
Section 5.02. [Reserved].
Section 5.03. Reports. On each Payment Date, the Owner Trustee
shall send or cause to be sent to the Equity Certificateholder the statement or
statements received by the Owner Trustee from the Servicer pursuant to Section
9.01 of the Pooling Agreement with respect to such Payment Date.
Section 5.04. Taxes. In the event that any withholding tax is
imposed on the Trust's payment (or allocation of income) to the Equity
Certificateholder, such tax shall reduce the amount otherwise distributable to
the Equity Certificateholder in accordance with this Section. The Owner Trustee
is hereby authorized and directed to retain from amounts otherwise distributable
to the Equity Certificateholder sufficient funds for the payment of any tax that
is legally owed by the Trust (but such authorization shall not prevent the Owner
Trustee from contesting any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to the
Equity Certificateholder shall be treated as cash distributed to such Equity
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution the Owner Trustee may in its sole
discretion withhold such amounts in accordance with this Section. In the event
that the Equity Certificateholder wishes to apply for a refund of any such
withholding tax, the Owner Trustee shall reasonably cooperate with the Equity
Certificateholder in making such claim so long as the Equity Certificateholder
agrees to reimburse the Owner Trustee for any out-of-pocket expenses incurred.
Section 5.05. Method of Payment. Subject to Section 9.01(c),
distributions required to be made to the Equity Certificateholder on any Payment
Date shall be made to the Equity Certificateholder of record on the preceding
Record Date by wire transfer, in immediately available funds, to the account of
the Equity Certificateholder at a bank or other entity having appropriate
facilities therefor, which the Equity Certificateholder shall have designated to
the Certificate Registrar, with appropriate written wire transfer instructions,
at least three Business Days prior to such Payment Date. In the absence of such
designation, such distributions shall be made by check mailed to such the Equity
Certificateholder at the address of such Holder appearing in the Certificate
Register.
Section 5.06. No Segregation of Moneys; No Interest. Moneys
received by the Owner Trustee hereunder need not be segregated in any manner
except to the extent required by law, and may be deposited under such general
conditions as may be prescribed by law, and the Owner Trustee shall not be
liable for any interest thereon.
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Section 5.07. Accounting and Reports to the Equity
Certificateholder, the Internal Revenue Service and Others. The Owner Trustee
shall (a) maintain (or cause to be maintained) the books of the Trust on a
calendar year basis and the accrual method of accounting, (b) deliver or cause
to be delivered to the Equity Certificateholder, as may be required by the Code
and applicable Treasury Regulations, such information as may be required
(including Form 1099 or Schedule K-1) to enable the Equity Certificateholder to
prepare its federal and state income tax returns, (c) file or cause to be filed
such tax returns relating to the Trust and make such elections as from time to
time may be required or appropriate under any applicable state or federal
statute or any rule or regulation thereunder so as to maintain the federal
income tax treatment for the Trust as set forth in Section 2.11, (d) cause such
tax returns to be signed in the manner required by law and (e) collect or cause
to be collected any withholding tax as described in and in accordance with
Section 5.04 with respect to income or distributions to the Equity
Certificateholder. The Owner Trustee shall elect under Section 1278 of the Code
to include in income currently any market discount that accrues with respect to
Contracts becoming part of the Contract Pool. If applicable, the Owner Trustee
shall not make the election provided under Section 754 or Section 761 of the
Code.
Section 5.08. Signature on Returns; Tax Matters Partner.
(a) The Owner shall sign on behalf of the Trust the tax
returns of the Trust, if any.
(b) If Subchapter K of the Code should be applicable to the
Trust, the Owner shall be designated the "tax matters partner" of the Trust
pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
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ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority. Subject to the provisions and
limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and
directed to execute and deliver on behalf of the Trust from time to time the
Transaction Documents to which the Trust is or becomes a party and each
certificate and other document attached as an exhibit to or contemplated by such
Transaction Documents and any amendment or other agreement relating thereto (in
each case, in such form as is furnished to the Owner Trustee from time to time
by or on behalf of the Trust Depositor or Equity Certificateholder or their
respective counsel), as evidenced conclusively by the Owner Trustee's execution
thereof. In addition to the foregoing, the Owner Trustee is authorized, but
shall not be obligated, to take all actions required of the Trust pursuant to
the Transaction Documents. The Owner Trustee is further authorized from time to
time to take such action as the Administrator directs or recommends in writing
with respect to the Transaction Documents.
Section 6.02. General Duties. It shall be the duty of the
Owner Trustee to discharge (or cause to be discharged through the Administrator
or such other agents as shall be appointed) all of its responsibilities pursuant
to the terms of this Agreement and the Transaction Documents to which the Trust
is a party and to administer the Trust in the interest of the Equity
Certificateholder, subject to the Transaction Documents and in accordance with
the provisions of this Agreement. Without limiting the foregoing, the Owner
Trustee shall on behalf of the Trust file and prove any claim or claims that may
exist against a Financing Originator or TCC in connection with any claims-paying
procedure as part of a proceeding in respect of an Insolvency Event involving
such Financing Originator or TCC. Notwithstanding the foregoing, the Owner
Trustee shall be deemed to have discharged its duties and responsibilities
hereunder and under the other Transaction Documents to the extent the
Administrator has agreed in the Administration Agreement to perform any act or
to discharge any duty of the Owner Trustee or the Trust hereunder or under any
such Transaction Document, and the Owner Trustee shall not be held liable for
the default or failure of the Administrator to carry out its obligations under
the Administration Agreement.
Section 6.03. Action Upon Instruction.
(a) Subject to Article IV, and in all events subject to the
terms of the applicable Transaction Documents, the Equity Certificateholder may
by written instruction direct the Owner Trustee in the management of the Trust.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any other Transaction Document if the Owner Trustee shall
have reasonably determined, or shall have been advised by counsel, that such
action is likely to result in liability on the part of the Owner Trustee or is
contrary to the terms hereof or of any other applicable Transaction Document or
is otherwise contrary to law.
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(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any other Transaction Document, the Owner Trustee shall
promptly give notice (in such form as it deems appropriate under the
circumstances) to the Equity Certificateholder requesting instruction as to the
course of action to be adopted, and to the extent the Owner Trustee acts in good
faith in accordance with any written instruction received from the Equity
Certificateholder, the Owner Trustee shall not be liable on account of such
action to any Person. Until the Owner Trustee shall have received the requested
instruction it may, but shall be under no duty to, take or refrain from taking
such action, as it shall deem to be in the best interests of the Equity
Certificateholder, and shall have no liability to any Person for such action or
inaction.
(d) In the event that the Owner Trustee is unsure as to the
applicability of any provision of this Agreement or any other Transaction
Document or believes any such provision is ambiguous as to its application, or
is, or appears to be, in conflict with any other applicable provision, or in the
event that this Agreement permits any determination by the Owner Trustee or is
silent or incomplete as to the course of action that the Owner Trustee is
required to take with respect to a particular set of facts, the Owner Trustee
may give notice (in such form as it deems appropriate under the circumstances)
to the Equity Certificateholder requesting instruction and, to the extent that
the Owner Trustee acts or refrains from acting in good faith in accordance with
any such instruction received from the Equity Certificateholder, the Owner
Trustee shall not be liable, on account of such action or inaction, to any
Person. Until the Owner Trustee shall have received the requested instruction it
may, but shall be under no duty to, take or refrain from taking such action, as
it shall deem to be in the best interests of the Equity Certificateholder, and
shall have no liability to any Person for such action or inaction.
(e) Notwithstanding anything contained herein to the contrary,
the Owner Trustee shall not be required to take any action in any jurisdiction
other than in the State of Delaware if the taking of such action will (i)
require the registration with, licensing by or the taking of any other similar
action in respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware by or with respect to the Owner
Trustee; (ii) result in any fee, tax or other governmental charge under the laws
of any jurisdiction or any political subdivisions thereof in existence on the
date hereof other than the State of Delaware being payable by the Owner Trustee;
or (iii) subject the Owner Trustee to personal jurisdiction in any jurisdiction
other than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by the Owner Trustee
contemplated in this Agreement. In the event that the Owner Trustee has
determined that any action set forth in clauses (i)-(iii) will result in the
consequences stated therein, the Administrator and the Owner Trustee shall
appoint one or more Persons to act as co-trustee pursuant to Section 11.05.
Section 6.04. No Duties Except as Specified in This Agreement
or in Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of or
otherwise deal with the Trust Assets, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement (including Section 6.02) or any document or written
instruction received by the Owner Trustee pursuant to Article IV or Section
6.03; and no implied duties or obligations
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shall be read into this Agreement or any other Transaction Document against the
Owner Trustee. The Owner Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare or file any securities law filing for the
Trust or to record this Agreement or any other Transaction Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Trust Assets that result from actions by, or claims against, the Owner Trustee,
in its individual capacity, that are not related to the ownership or the
administration of the Trust Assets or the transactions contemplated by the
Transaction Documents.
Section 6.05. No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust Assets except (i) in accordance
with the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (ii) in accordance with the Transaction Documents,
or (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Article IV or Section 6.03.
Section 6.06. Restrictions. The Owner Trustee shall not take
any action (i) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (ii) that, 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. Neither the Administrator nor the
Equity Certificateholder shall direct the Owner Trustee to take actions that
would violate the provisions of this Section.
Section 6.07. Administration Agreement.
(a) The Administrator is authorized to execute on behalf of
the Trust all documents, reports, filings, instruments and opinions as it shall
be the duty of the Trust to prepare, file or deliver pursuant to the Transaction
Documents. Pursuant to the Administration Agreement, the Owner Trustee shall
execute and deliver to the Administrator a power of attorney appointing the
Administrator as agent and attorney-in-fact of the Trust and the Owner Trustee
to execute all such documents, reports, filings, instruments and opinions.
(b) If the Administrator shall resign or be removed pursuant
to the terms of the Administration Agreement, the Owner Trustee may, at the
written direction of the Required Holders, appoint or consent to the appointment
of a successor Administrator pursuant to the Administration Agreement.
(c) If the Administration Agreement is terminated, the Owner
Trustee may, and is hereby authorized and empowered to, at the written direction
of the Equity Certificateholder, appoint or consent to the appointment of a
Person to perform substantially the same duties as are assigned to the
Administrator in the Administration Agreement pursuant to an agreement
containing substantially the same provisions as are contained in the
Administration Agreement.
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(d) The Owner Trustee shall promptly notify the Equity
Certificateholder of any default by or misconduct of the Administrator under the
Administration Agreement of which the Owner Trustee has received written notice
or of which a Responsible Officer of the Owner Trustee has actual knowledge.
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ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties. The Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all moneys actually received by it
constituting part of the Trust Assets upon the terms of the Transaction
Documents and this Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any other Transaction Document under any
circumstances, except that the foregoing limitation shall not limit the
liability, if any, that the Owner Trustee may have to the Equity
Certificateholder (i) for the Owner Trustee's own willful misconduct or
negligence, (ii) in the case of the inaccuracy of any representation or warranty
contained in Section 7.03 expressly made by the Owner Trustee in its individual
capacity, (iii) for liabilities arising from the failure of the Owner Trustee to
perform obligations expressly undertaken by it in the last sentence of Section
6.04 hereof, (iv) for any investments issued by the Owner Trustee or any branch
or affiliate thereof in its commercial capacity, or (v) for taxes, fees or other
charges on, based on or measured by, any fees, commissions or compensation
received by the Owner Trustee in connection with any of the transactions
contemplated by this Agreement or any other Transaction Document. In particular,
but not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) the Owner Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Owner Trustee which
did not result from negligence on the part of such Responsible Officer;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the instructions of
the Administrator or the Equity Certificateholder;
(c) no provision of this Agreement or any other Transaction
Document shall require the Owner Trustee to expend or risk funds or otherwise
incur any financial liability in the performance of any of its rights or powers
hereunder or under any other Transaction Document if the Owner Trustee shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any of the Transaction Documents,
including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Trust Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Assets, or for or in respect
of the validity or sufficiency of any Transaction Documents, other than its
signature on behalf of the Trust on, and the certificate of authentication on,
the Equity Certificate, and the
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Owner Trustee shall in no event assume or incur any liability, duty, or
obligation to any Noteholder or, other than as expressly provided for herein, to
the Equity Certificateholder;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Trust Depositor, the Indenture Trustee or
the Servicer under any of the Transaction Documents or otherwise and the Owner
Trustee shall have no obligation or liability to perform the obligations of the
Trust under this Agreement or the other Transaction Documents that are required
to be performed by the Administrator under this Agreement or the Administration
Agreement, by the Indenture Trustee under the Indenture or by the Servicer or
the Trust Depositor under any Transaction Document; and
(g) the Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any other Transaction Document, at the request,
order or direction of the Equity Certificateholder, unless the Equity
Certificateholder has offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this Agreement or in any other
Transaction Document shall not be construed as a duty, and, except as otherwise
provided in the third sentence of Section 7.01, the Owner Trustee shall not be
answerable for the performance of any such act.
Section 7.02. Furnishing of Documents. The Owner Trustee shall
furnish to the Equity Certificateholder promptly upon receipt of a written
request therefor from an Equity Certificateholder, duplicates or copies of all
reports, notices, requests, demands, Equity Certificate, financial statements
and any other instruments furnished to the Owner Trustee under the Transaction
Documents.
Section 7.03. Representations and Warranties. The Owner
Trustee hereby represents and warrants to the Trust Depositor and the Equity
Certificateholder that:
(a) It is a national banking association duly organized and
validly existing in good standing under the laws of the United States. It has
all requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement and to execute and deliver on behalf of the
Trust each other Transaction Document to which the Trust is a party ("Related
Documents").
(b) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement and, on behalf of the Trust,
the Related Documents, and this Agreement and each Related Document will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver the same on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement or, on behalf of the Trust, any Related Document, nor the consummation
by it of the transactions contemplated hereby nor compliance by it with any of
the terms or provisions hereof will contravene any federal law, governmental
rule or regulation governing the banking or trust powers of the Owner
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Trustee or any judgment or order binding on it, or constitute any default under
its charter documents or bylaws or any indenture, mortgage, contract, agreement
or instrument to which it is a party or by which any of its properties may be
bound or result in the creation or imposition of any lien, charge or encumbrance
on the Trust Assets resulting from actions by or claims against the Owner
Trustee individually which are unrelated to this Agreement or the other
Transaction Documents.
Section 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper reasonably
believed by it to be genuine and believed by it to be signed by the proper party
or parties. The Owner Trustee may accept a certified copy of a resolution of the
board of directors or other governing body of any party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of determination of
which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or any other authorized officer of the relevant
party, as to such fact or matter and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement or
other Transaction Documents, the Owner Trustee (i) may act directly or through
its agents or attorneys pursuant to agreements entered into by any of them, and
the Owner Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys as shall have been selected by the Owner Trustee with
reasonable care, and (ii) may consult with counsel, accountants and other
skilled persons to be selected with reasonable care and employed by it. The
Owner Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons, provided that such actions do not
violate the express terms of the Transaction Documents.
Section 7.05. Not Acting in Individual Capacity. Except as
otherwise expressly provided in this Article VII, in accepting the trusts hereby
created, Allfirst Financial Center National Association acts solely as Owner
Trustee hereunder and not in its individual capacity, and all Persons having any
claim against the Owner Trustee by reason of the transactions contemplated by
this Agreement or any other Transaction Document shall look only to the Trust
Assets for payment or satisfaction thereof.
Section 7.06. Owner Trustee Not Liable for Notes, Equity
Certificate or Contracts. The recitals contained herein and in the Equity
Certificate (other than the signature of the Owner Trustee on behalf of the
Trust on, and the certificate of authentication on, the Equity Certificate)
shall be taken as the statements of the Trust Depositor, and the Owner Trustee
assumes no responsibility for the correctness thereof. The Owner Trustee makes
no representations as to the validity or sufficiency of this Agreement, any
other Transaction Document or the Equity Certificate (other than the signature
of the Owner Trustee and the
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certificate of authentication on the Equity Certificates), or of any Contract or
related documents or assets. The Owner Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Contract, or the perfection and priority of any security
interest created by any Contract in any related Equipment or the maintenance of
any such perfection and priority, or for or with respect to the sufficiency of
the Trust Assets or the ability of such Trust Assets to generate the payments to
be distributed to the Equity Certificateholder under this Agreement or the
Noteholders under the Indenture, including, without limitation, the existence,
condition and ownership of any Equipment; the existence and enforceability of
any insurance thereon; the existence and contents of any Contract or any
computer or other record thereof; the validity of the assignment of any Contract
to the Trust or of any intervening assignment; the completeness of any Contract;
the performance or enforcement of any Contract; the compliance by the Trust
Depositor, applicable Financing Originator, TCC or the Servicer with any
warranty or representation made under any Transaction Document or in any related
document or the accuracy of any such warranty or representation; or any action
of the Administrator, the Indenture Trustee or the Servicer or any subservicer
taken in the name of the Owner Trustee or the Trust.
Section 7.07. Owner Trustee May Own Notes. The Owner Trustee
in its individual or any other capacity may become the owner or pledgee of Notes
or the Equity Certificate and may deal with the Trust Depositor, the
Administrator, the Indenture Trustee, Servicer and Affiliates thereof in banking
transactions with the same rights as it would have if it were not Owner Trustee.
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ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Fees and Expenses. The Owner
Trustee shall receive as compensation for its services hereunder such fees as
have been separately agreed upon between the Owner Trustee and the Servicer and
which shall be paid consistent with Section 5.19 of the Pooling Agreement.
Additionally, the Owner Trustee shall be entitled to be reimbursed by the Trust
Depositor or Servicer for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder; provided, however, that the Owner Trustee shall only be entitled to
reimbursement for expenses hereunder to the extent such expenses (i) are fees
and expenses of outside counsel engaged by the Owner Trustee in respect of the
performance of its obligations hereunder, or (ii) relate to the performance of
its obligations hereunder.
Section 8.02. Indemnification. The Trust Depositor shall be
liable as primary obligor for, and hereby indemnifies and holds harmless the
Owner Trustee (including in its individual capacity) and its successors, assigns
and servants (collectively, the "Indemnified Parties") from and against, any and
all liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by or
asserted against the Owner Trustee or any other Indemnified Party in any way
relating to or arising out of this Agreement, any other Transaction Document,
the Trust Assets, the administration of the Trust Assets or the action or
inaction of the Owner Trustee hereunder; provided, however, the Trust Depositor
shall not be liable for or required to indemnify an Indemnified Party from and
against Expenses arising or resulting from any of the matters described in the
third sentence of Section 7.01; provided, further, that the liability of the
Trust Depositor under this Section shall be limited to the assets of the Trust
Depositor and any indemnity payments to be made pursuant to this Section shall
not be made from the Trust Assets and such indemnity payments, if unpaid, do not
constitute a general recourse claim against the Trust. The indemnities contained
in this Section shall survive the resignation, removal or termination of the
Owner Trustee or the termination of this Agreement or the Trust. In the event of
any claim, action or proceeding for which indemnity will be sought pursuant to
this Section, the Owner Trustee's choice of legal counsel shall be subject to
the approval of the Trust Depositor, which approval shall not be unreasonably
withheld. The indemnities contained in this Section shall be in addition to the
indemnities provided by the Servicer pursuant to the Pooling Agreement and the
Administrator pursuant to the Administration Agreement. The Trust Depositor
hereby agrees to advance to each Indemnified Party Expenses (including
reasonable fees and expenses of counsel) incurred by such Indemnified Party, in
defending any claim, demand, action, suit or proceeding prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Trust Depositor of an undertaking, by or on behalf of such Indemnified
Party, to repay such amount if it shall be determined that such Indemnified
Party is not entitled to be indemnified therefor under this Section 8.02.
Notwithstanding any provision in this Agreement or any other Transaction
Document to the contrary, the obligations of the Trust Depositor under this
Section 8.02 shall
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survive the resignation or removal of any trustee of the Trust, shall survive
the termination of this Agreement and the termination of the Trust.
Section 8.03. Non-recourse Obligations. Notwithstanding
anything in this Agreement or any other Transaction Document, but without
limiting the rights of the Owner Trustee or any other Indemnified Party under
Section 8.02, the Owner Trustee agrees in its individual capacity and in its
capacity as Owner Trustee for the Trust that all obligations of the Trust to the
Owner Trustee individually or as Owner Trustee for the Trust shall be recourse
to the Trust Assets only and specifically shall not be recourse to the assets of
the Equity Certificateholder.
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ARTICLE IX
TERMINATION OF TRUST
Section 9.01. Termination of Trust.
(a) The Trust created by this Agreement shall dissolve upon
the earliest of (i) the maturity or other liquidation of the last Contract and
related Transferred Assets, and the subsequent distribution of amounts in
respect of such Transferred Assets as provided in the Transaction Documents, or
(ii) the payment to the Noteholders and any other party entitled thereto of the
entire outstanding principal balance of the Notes, together with accrued
interest thereon to the date of repayment, and all other amounts required to be
paid to such parties or to which such parties are entitled pursuant to this
Agreement, the Pooling Agreement and the other Transaction Documents, or (iii)
at the time provided in Section 9.02 below; provided that the rights to
indemnification under Section 8.02 shall survive the dissolution and termination
of the Trust. The Servicer shall promptly notify the Owner Trustee and the
Administrative Agent of any prospective dissolution pursuant to this Section
9.01. Except as provided in Section 9.02, the bankruptcy, liquidation,
dissolution, termination, resignation, expulsion, withdrawal, death or
incapacity of the Equity Certificateholder, shall not (x) operate to terminate
this Agreement or the Trust, nor (y) entitle such Equity Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or Trust Assets, nor (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Trust
Depositor nor the Equity Certificateholder shall be entitled to revoke or
terminate the Trust.
(c) Promptly upon receipt of notice of final distribution on
the Equity Certificate from the Servicer given pursuant to Section 10.01 of the
Pooling Agreement, the Owner Trustee shall mail written notice to the Equity
Certificateholder specifying (i) the Payment Date upon which final payment of
the Equity Certificate shall be made upon presentation and surrender of Equity
Certificate at the office of the Owner Trustee as therein specified, (ii) the
amount of any such final payment, and (iii) that the Record Date otherwise
applicable to such Payment Date is not applicable, payments being made only upon
presentation and surrender of the Equity Certificate at the office of the Owner
Trustee therein specified. The Owner Trustee shall give such notice to the
Certificate Registrar (if other than the Owner Trustee) and the Paying Agent at
the time such notice is given to Equity Certificateholder. Upon presentation and
surrender of the Equity Certificate, the Owner Trustee shall direct the
Indenture Trustee to distribute to the Equity Certificateholder amounts
distributable on such Payment Date.
(d) In the event that the Equity Certificateholder shall not
surrender the Equity Certificate for cancellation within six months after the
date specified in the above-mentioned written notice, the Owner Trustee shall
give a second written notice to the Equity Certificateholder to surrender the
Equity Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice the Equity
Certificate
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shall not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the Equity Certificateholder concerning surrender of the Equity Certificate, and
the cost thereof shall be paid out of the funds and other assets that remain
subject to this Agreement. Any funds which are payable to the Equity
Certificateholder remaining in the Trust after exhaustion of such remedies shall
be distributed by the Owner Trustee to the Trust Depositor.
(e) Upon the completion of winding up of the Trust following
its dissolution, the Owner Trustee shall cause the Certificate of Trust to be
canceled by filing a certificate of cancellation with the Secretary of State in
accordance with the provisions of Section 3810 of the Business Trust Statute,
and upon the effectiveness thereof, this Agreement and the Trust shall be
terminated.
Section 9.02. Dissolution upon Bankruptcy of Trust Depositor.
In the event that an Insolvency Event shall occur with respect to the Trust
Depositor, then this Agreement shall be terminated in accordance with Section
9.01 90 days after the date of such event, unless within such 90 day period, the
Owner Trustee shall have received written instructions from the Required Holders
not to dissolve or terminate the Trust. Promptly after the occurrence of an
Insolvency Event with respect to the Trust Depositor (i) the Trust Depositor
shall give the Indenture Trustee and Owner Trustee written notice thereof, and
the Indenture Trustee shall give prompt written notice to the Noteholders
thereof. Upon a termination pursuant to this Section, the Owner Trustee shall
request the Indenture Trustee promptly to sell the Trust Assets in a
commercially reasonable manner and on commercially reasonable terms. The
proceeds of such a sale shall be treated, allocated and distributed as Available
Pledged Revenues in accordance with the Pooling Agreement.
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ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee. The
Owner Trustee shall at all times be a Person (i) satisfying the provisions of
Section 3807(a) of the Business Trust Statute; (ii) authorized to exercise
corporate trust powers and subject to supervision or examination by federal or
state authorities; (iii) having (or having a parent which has) a combined
capital and surplus of at least $50,000,000; (iv) having (or having a parent
which has) a rating of at least Baa3 by Moody's and BBB by Standard & Poor's;
(v) which is not an Affiliate of the Issuer, the Trust Depositor, or any
Financing Originator, and (vi) does not offer or provide credit or credit
enhancement to the Issuer or the Trust Depositor. If such corporation shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 10.02.
Section 10.02. Resignation or Removal of Owner Trustee. The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Trust Depositor and the Servicer
at least 30 days before the date specified in such instrument. Upon receiving
such notice of resignation, the Administrator shall promptly appoint a successor
Owner Trustee meeting the qualifications set forth in Section 10.01 by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign after
written request therefor by the Administrator or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator may remove the Owner
Trustee. If the Administrator shall remove the Owner Trustee under the authority
of the immediately preceding sentence, the Trust Depositor shall promptly
appoint a successor Owner Trustee meeting the qualification requirements of
Section 10.01 by written instrument, in duplicate, one copy of which instrument
shall be delivered to the outgoing Owner Trustee so removed and one copy to the
successor Owner Trustee together with payment of all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section shall not become effective until
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all fees and expenses, including any indemnity payments, due to the outgoing
Owner Trustee have been paid and until acceptance of appointment by the
successor Owner Trustee pursuant to Section 10.03.
Section 10.03. Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 10.02 shall execute, acknowledge and
deliver to the Trust Depositor and to its predecessor Owner Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become effective
and such successor Owner Trustee, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties, and obligations
of its predecessor under this Agreement, with like effect as if originally named
as Owner Trustee. The predecessor Owner Trustee shall, upon receipt of fees,
expenses and indemnity due and owing to the Owner Trustee deliver to the
successor Owner Trustee all documents and statements and monies held by it under
this Agreement; and the Trust Depositor and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such successor
Owner Trustee shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Administrator shall mail notice thereof to the
Equity Certificateholder, the Indenture Trustee, the Noteholders and each Rating
Agency. If the Administrator shall fail to mail such notice within 10 days after
acceptance of appointment by the successor Owner Trustee, the successor Owner
Trustee shall cause such notice to be mailed at the expense of the Trust
Depositor.
Any successor Owner Trustee appointed pursuant to this Section
10.03 shall file an amendment to the Certificate of Trust with the Delaware
Secretary of State identifying the name and principal place of business of such
successor in the State of Delaware.
Section 10.04. Merger or Consolidation of Owner Trustee. Any
Person into which the Owner Trustee may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such Person shall be eligible pursuant to Section 11.01, without the execution
or filing of any instrument or any further act on the part of any of the parties
hereto. Notwithstanding anything contained herein to the contrary, the successor
Owner Trustee under this Section 10.04 shall file an amendment to the
Certificate of Trust with the Delaware Secretary of State identifying the name
and principal place of business of such successor in the State of Delaware.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting
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any legal requirements of any jurisdiction in which any part of the Trust Assets
may at the time be located, the Owner Trustee shall have the power and, at the
request of the Trust Depositor, shall execute and deliver all instruments to
appoint one or more Persons approved by the Owner Trustee to act as co-trustee,
jointly with the Owner Trustee, or separate trustee or separate trustees, of all
or any part of the Trust Assets, and to vest in such Person, in such capacity,
such title to the Trust Assets, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Owner Trustee may consider necessary or desirable. No co-trustee or
separate trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to Section 10.01 and no notice of
the appointment of any co-trustee or separate trustee shall be required pursuant
to Section 10.01.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) all rights, powers, duties, and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed the Owner Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties, and
obligations (including the holding of title to the Trust Assets or any portion
thereof in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(b) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this Agreement; and
(c) the Owner Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee.
Any separate trustee or co-trustee may at any time appoint the
Owner Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
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ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments.
(a) This Agreement may be amended by the Trust Depositor and
the Owner Trustee, without the consent of any of the Noteholders or the Equity
Certificateholder, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or to add any other provisions with respect to
matters or questions arising under this Agreement that shall not be inconsistent
with the provisions of this Agreement; provided, however, that any such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Noteholder or the Equity Certificateholder.
(b) This Agreement may also be amended from time to time by
the Trust Depositor and the Owner Trustee, with the consent of the Required
Holders 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, however, that no such amendment shall
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, (i) collections of payments on Contracts or distributions that shall
be required to be made for the benefit of the Noteholders or the Equity
Certificateholder, or (ii) change in any manner the Noteholder or Equity
Certificateholder consent required for any such amendment, without the consent
of the Holders of all outstanding Notes and the Equity Certificates.
(c) Prior to the execution of any such amendment or consent,
the Trust Depositor shall furnish written notification of the substance of such
amendment or consent, together with a copy thereof, to the Indenture Trustee and
the Administrator.
(d) Promptly after the execution of any such amendment or
consent, the Owner Trustee shall furnish written notification of the substance
of such amendment or consent to the Equity Certificateholder and the Rating
Agencies. It shall not be necessary for the consent of the Equity
Certificateholder, Noteholders or the Indenture Trustee pursuant to this Section
to approve the particular form of any proposed amendment or consent, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents (and any other consents of the Equity
Certificateholder provided for in this Agreement or in any other Transaction
Document) and of evidencing the authorization of the execution thereof by the
Equity Certificateholder shall be subject to such reasonable requirements as the
Owner Trustee may prescribe.
(e) Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such amendment
with the Secretary of State.
(f) Prior to the execution of any amendment or supplement to
this Agreement or the Certificate of Trust, the Owner Trustee shall be entitled
to receive and rely upon an
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Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and the other Transaction Documents, and that all
conditions precedent to the execution and delivery of such amendment as set
forth in the applicable Transaction Documents have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment that
affects the Owner Trustee's own rights, duties or immunities under this
Agreement or otherwise.
Section 11.02. Limitations on Rights of Others. Except for
Section 2.07, the provisions of this Agreement are solely for the benefit of the
Owner Trustee, the Trust Depositor, the Owner, the Administrator and, to the
extent expressly provided herein, the Indenture Trustee, the Noteholders and the
Equity Certificateholder, and nothing in this Agreement (other than Section
2.07), whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the Trust Assets or
under or in respect of this Agreement or any covenants, conditions or provisions
contained herein.
Section 11.03. Notices. All notices, demands, Equity
Certificate, 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 telefax transmission with a
confirmation of receipt, in all cases addressed to the recipient as follows:
(i) If to the initial Servicer/Administrator:
AT&T Capital Corporation
650 CIT Drive
Livingston, New Jersey 07039
Attention: Treasury - Securitization
Fax No.: (973) 535-5900
Telephone No.: (973) 740-5058
(ii) If to the Trust Depositor:
NCT Funding Company, L.L.C.
c/o The CIT Group, Inc.
650 CIT Drive
Livingston, New Jersey 07039
Attention: Treasury - Securitization
Fax No.: (973) 535-5900
Telephone No.: (973) 740-5058
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(iii) If to the Owner Trustee:
Allfirst Financial Center National Association
499 Mitchell Road - MC 101-591
Millsboro, Delaware 19966
Attention:
Corporate Trust Administration - CIT 2000-1
Fax No.: (410) 244-4236
Telephone No.: (410) 244-4626
(iv) If to the Indenture Trustee:
The Chase Manhattan Bank
450 West 33rd St.,
New York, New York 10001-2697
Attention: Capital Markets Fiduciary Services /
Structured Finance Services, CIT 2000-1
Fax No.: (212) 946-3916/8302
Telephone No.: (212) 946-3200
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 11.04. Severability of Provisions. If any one or more
of the covenants, agreements, provisions, or terms of this Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or the
Equity Certificate or the rights of the Equity Certificateholder thereof.
Section 11.05. 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 instrument.
Section 11.06. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
each of the Trust Depositor, and the Owner Trustee and their respective
successors and permitted assigns and the Owner and its successors and permitted
assigns, all as herein provided. Any request, notice, direction, consent, waiver
or other instrument or action by the Owner shall bind the successors and assigns
of such Owner.
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Section 11.07. No Petition.
(a) The Trust Depositor will not at any time institute against
(or solicit or cooperate with or encourage any Person to institute against) the
Trust any bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Equity Certificate, the Notes, this Agreement or any of the other Transaction
Documents existing from time to time.
(b) The Owner Trustee, by entering into this Agreement, and
the Equity Certificateholder, by accepting the Equity Certificate, and the
Indenture Trustee and each Noteholder, by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against (or solicit or cooperate with or encourage any Person to institute
against) the Trust Depositor or the Trust, or join in any institution against
the Trust Depositor or the Trust of, any bankruptcy proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Equity Certificate, the Notes, this Agreement or any
of the other Transaction Documents existing from time to time.
Section 11.08. No Recourse. The Equity Certificateholder by
accepting the Equity Certificate acknowledges that the Equity
Certificateholder's Equity Certificate represents beneficial interests in the
Trust only and does not represent interests in or obligations of the Trust
Depositor, the Servicer, any Financing Originator, the Administrator, the Owner
Trustee, the Indenture Trustee or any of their respective Affiliates and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated in this Agreement, the Equity Certificate or
the other applicable Transaction Documents.
Section 11.09. Headings. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
Section 11.10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, 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 11.11. Certain Servicer Payment Obligations. It is
understood that the Servicer shall be responsible for payment of the
Administrator's compensation pursuant to Section 3 of the Administration
Agreement and shall reimburse the Administrator for all expenses and liabilities
of the Administrator incurred thereunder, consistent with the provisions of
Section 5.19 of the Pooling Agreement. The parties hereto agree that any such
payments, if unpaid, do not constitute a general recourse claim against the
Trust or the Trust Assets.
Section 11.12. JURISDICTION. EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY AGREES TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING
JURISDICTION TO REVIEW THE JUDGMENTS
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THEREOF. EACH OF THE PARTIES HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY
OF THE AFOREMENTIONED COURTS.
Section 11.13. WAIVER OF JURY TRIAL. EACH PARTY TO THIS
AGREEMENT WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,
OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT
TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OF THIS AGREEMENT OR A TRANSACTION DOCUMENT OR ANY PROVISION HEREOF
OR THEROF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, AMENDMENTS AND
RESTATEMENTS, OR MODIFICATIONS TO THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
NCT FUNDING COMPANY, L.L.C.
as Trust Depositor
By: /s/ Frank Garcia
--------------------------------
Name: Frank Garcia
Title: Senior Vice President
ALLFIRST FINANCIAL CENTER NATIONAL ASSOCIATION,
as Owner Trustee
By: /s/ Pamela S. Hazelip
--------------------------------
Name: Pamela S. Hazelip
Title: Vice President
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EXHIBIT A
[Reserved]
A-1
<PAGE>
EXHIBIT B
Form of Equity Certificate
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO NOTES TO THE EXTENT
DESCRIBED IN THE TRUST AGREEMENT AND THE POOLING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN NCT
FUNDING COMPANY, L.L.C., THE CIT GROUP, INC., AT&T CAPITAL CORPORATION OR ANY
AFFILIATE THEREOF, OTHER THAN THE CIT EQUIPMENT COLLATERAL 2000-1. THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR PLEDGED UNLESS THE
CONDITIONS SET FORTH IN SECTION 3.04 OF THE TRUST AGREEMENT HAVE BEEN COMPLIED
WITH.
THIS CERTIFICATE IS TRANSFERRABLE ONLY IN WHOLE AND NOT IN PART.
THIS CERTIFICATE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM.
CIT EQUIPMENT COLLATERAL 2000-1
EQUITY CERTIFICATE
NO. 1 Equity Certificate
THIS CERTIFIES THAT NCT Funding Company, L.L.C. is the
registered owner of a beneficial interest in the CIT Equipment Collateral 2000-1
(the "Trust") formed by NCT Funding Company, L.L.C., a Delaware limited
liability company (the "Trust Depositor").
The Trust is governed by an Amended and Restated Trust
Agreement dated as of April 1, 2000 (as amended, restated, supplemented and/or
otherwise modified from time to time, the "Trust Agreement"), between NCT
Funding Company, L.L.C., as Trust Depositor (the "Trust Depositor"), and
Allfirst Financial Center National Association, as Owner Trustee, a summary of
certain of the pertinent provisions of which is set forth below. In the event of
any conflict or inconsistency between this Certificate and the Trust Agreement
(or the Pooling Agreement, as the case may be), the Trust Agreement (or the
Pooling Agreement, as the case may be) shall govern. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings which would
be given to them if used in the Trust Agreement.
This Certificate is the duly authorized Equity Certificate
issued under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust
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Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound. The Trust has also issued Notes, in
right of payment to which this Equity Certificate is subordinate. The property
of the Trust includes, among other things, all the right, title and interest of
the Trust Depositor in and to the Transferred Assets identified in one or more
related Transfer Agreements delivered from time to time on related Transfer
Dates.
The amount to be distributed to the Holder of this Certificate
on each Payment Date will be determined pursuant to the Pooling Agreement.
The Holder of this Certificate acknowledges and agrees that
its rights to receive distributions in respect of this Certificate are
subordinated to the rights of Noteholders to the extent described in the Trust
Agreement and the Pooling Agreement.
It is the intent of each Financing Originator, the Servicer,
the Administrator, the Trust Depositor, the Owner Trustee, and the Equity
Certificateholder that, for purposes of federal income, state and local income
and single business tax and any other income taxes, the Trust will be
disregarded as a separate entity for federal income tax purposes pursuant to
Treasury Regulations Section 301.7701-3(b)(1)(ii) and that all items of income,
deduction, gain, loss or credit of the Trust will be treated as such items of
the Equity Certificateholder. The Trust Depositor and the Equity
Certificateholder, by acceptance of this Certificate, agrees to treat, and to
take no action inconsistent with such treatment of, the Trust for federal income
tax purposes.
The Equity Certificateholder, by its acceptance of this
Certificate or a beneficial interest in the Trust evidenced by this Certificate,
covenants and agrees that such Equity Certificateholder will not at any time
institute against (or solicit or cooperate with or encourage any Person to
institute against) the Trust or the Trust Depositor, or join in any institution
against the Trust or the Trust Depositor any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Certificate, the Notes, the Trust Agreement or
any of the other Transaction Documents in existence from time to time.
Distributions on this Certificate from or in respect of Trust
Assets will be made as provided in the Trust Agreement and the Pooling
Agreement, by the Indenture Trustee or its agent by wire transfer or check
mailed to the Equity Certificateholder of record in the Certificate Register
without the presentation or surrender of this Certificate or the making of any
notation hereon. Except as otherwise provided in the Trust Agreement and
notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Owner Trustee of the pendency of such distribution
and only upon presentation and surrender of this Certificate at the office or
agency maintained for that purpose by the Owner Trustee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Owner Trustee, by manual
signature, this Certificate shall not entitle the
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holder hereof to any benefit under the Trust Agreement or any other Transaction
Document or be valid for any purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, 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.
B-3
<PAGE>
[REVERSE OF CERTIFICATE]
This Certificate does not represent an obligation of, or an
interest in, the Trust Depositor, AT&T Capital Corporation, The CIT Group, Inc.,
any Financing Originator, the Owner Trustee, or any of their respective
Affiliates (other than the Trust) and no recourse may be had against such
parties or their assets, except as expressly set forth or contemplated herein or
in the Trust Agreement or the other Transaction Documents. In addition, this
Certificate is not guaranteed by any governmental agency or instrumentality and
is limited in right of payment to certain collections and recoveries with
respect to the Trust Assets and certain other amounts, in each case as more
specifically set forth in the Trust Agreement and in the Pooling Agreement. A
copy of each of the Pooling Agreement and the Trust Agreement may be examined by
any Equity Certificateholder upon written request during normal business hours
at the principal office of the Trust Depositor and at such other places, if any,
designated by the Trust Depositor.
The Trust Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trust Depositor and the rights of the Equity
Certificateholder under the Trust Agreement at any time by the Trust Depositor
and the Owner Trustee, with the consent of the parties described therein. Any
such consent shall be conclusive and binding on the Equity Certificateholder and
on all future Equity Certificateholder of this Certificate and of any
Certificate issued upon the registration of transfer hereof or in exchange
therefor or in lieu hereof, whether or not notation of such consent is made upon
this Certificate.
As provided in the Trust Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee, accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar executed by the
Equity Certificateholder hereof or such Equity Certificateholder's attorney duly
authorized in writing, and thereupon a new Certificate evidencing the same
beneficial interest in the Trust will be issued to the designated transferee.
The initial Certificate Registrar appointed under the Trust Agreement is the
Owner Trustee.
Except as provided in the Trust Agreement, this Certificate is
issuable only as a registered Equity Certificate without coupons. No service
charge will be made for any registration of transfer of this Certificate, but
the Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Owner Trustee, the Certificate Registrar and any of their
respective agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Owner Trustee,
the Certificate Registrar or any such agent shall be affected by any notice to
the contrary.
B-4
<PAGE>
The obligations and responsibilities created by the Trust
Agreement and the Trust created thereby shall terminate upon the payment to the
Equity Certificateholder of all amounts required to be paid to such Equity
Certificateholder pursuant to the Trust Agreement and the Pooling Agreement and
the disposition in accordance with any applicable Transaction Document of all
property held as part of the Trust Assets.
This Certificate may not be acquired by a Benefit Plan. By
accepting and holding this Certificate, the Holder hereof shall be deemed to
have represented and warranted that it is not a Benefit Plan and is not
acquiring this Certificate for the account of such an entity.
IN WITNESS WHEREOF, the Trust has caused this Certificate to
be duly executed.
Dated: _______ __, 2000 CIT EQUIPMENT COLLATERAL 2000-1
By: Allfirst Financial Center National Association,
not in its individual capacity but solely as
Owner Trustee
By:
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Equity Certificate referred to in the
within-mentioned Trust Agreement.
Allfirst Financial Center National Association,
not in its individual capacity but solely as
Owner Trustee
By:
Authorized Signatory
B-5
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
to transfer said Certificate on the books of the Certificate Registrar, will
full power of substitution in the premises.
Dated:
Signature Guaranteed:
<TABLE>
<S> <C>
NOTICE: Signature(s) must be guaranteed by NOTICE: The signature to this assignment
an eligible guarantor institution. must correspond with the name of the
registered owner as it appears on the face of the
within Certificate in every particular, without
alteration or enlargement or any change
whatever.
</TABLE>
B-6
<PAGE>
================================================================================
POOLING AND SERVICING AGREEMENT
among
CIT EQUIPMENT COLLATERAL 2000-1
as Issuer,
NCT FUNDING COMPANY, L.L.C.,
as Depositor,
NEWCOURT FINANCIAL USA INC.
in its individual capacity
and
AT&T CAPITAL CORPORATION,
in its individual capacity and as Servicer
Dated as of April 1, 2000
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
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ARTICLE I DEFINITIONS 1
<S> <C> <C>
Section 1.01. Definitions.............................................................................1
Section 1.02. Usage of Terms.........................................................................44
Section 1.03. Section References.....................................................................44
Section 1.04. Accounting Terms.......................................................................44
ARTICLE II FUNDINGS OF TRUST; TRANSFERS OF CONTRACTS......................................................45
Section 2.01. Creation and Funding of Trust; Transfer of Transferred Assets to Trust.................45
Section 2.02. Conditions to Transfers................................................................46
Section 2.03. Acceptance by Trust....................................................................48
Section 2.04. Conveyance of Substitute Contracts.....................................................49
Section 2.05. Release of Excluded Amounts............................................................50
ARTICLE III REPRESENTATIONS AND WARRANTIES................................................................51
Section 3.01. Representations and Warranties Regarding the Depositor.................................51
Section 3.02. Representations and Warranties of the Servicer.........................................53
ARTICLE IV PERFECTION OF TRANSFERS AND PROTECTION OF SECURITY INTERESTS...................................56
Section 4.01. Custody of Contracts...................................................................56
Section 4.02. Filings................................................................................57
Section 4.03. Name Change or Relocation..............................................................57
ARTICLE V SERVICING OF CONTRACTS..........................................................................58
Section 5.01. Initial Servicer's Appointment and Acceptance; Responsibility for Contract
Administration......................................................................58
Section 5.02. General Duties.........................................................................58
Section 5.03. Assignment or Replacement..............................................................59
Section 5.04. Disposition Upon Termination of Contract...............................................59
Section 5.05. Subservicers...........................................................................59
Section 5.06. Further Assurance......................................................................59
Section 5.07. Notice to Obligors.....................................................................60
Section 5.08. Collection Efforts; Modification of Contracts..........................................60
Section 5.09. Prepayments of Certain Contracts.......................................................61
Section 5.10. Certain Extensions; Acceleration.......................................................61
Section 5.11. Taxes and Other Amounts................................................................62
Section 5.12. Suits by Servicer......................................................................62
Section 5.13. Remittances............................................................................62
Section 5.14. Servicer Advances......................................................................62
Section 5.15. Realization Upon Defaulted Contract....................................................62
Section 5.16. Maintenance of Insurance Policies......................................................63
</TABLE>
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<PAGE>
<TABLE>
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<S> <C> <C>
Section 5.17. Certain Other Duties With Respect to Trust.............................................63
Section 5.18. Servicing Compensation.................................................................63
Section 5.19. Payment of Certain Expenses by Servicer................................................63
Section 5.20. Records................................................................................64
Section 5.21. Inspection.............................................................................64
Section 5.22. Trust To Cooperate in Releases.........................................................64
Section 5.23. Separate Entity Existence..............................................................64
Section 5.24. Assignment of Servicing................................................................65
ARTICLE VI COVENANTS OF THE DEPOSITOR.....................................................................66
Section 6.01. LLC Existence..........................................................................66
Section 6.02. Contracts Not to be Evidenced by Promissory Notes......................................66
Section 6.03. Security Interests.....................................................................66
Section 6.04. Delivery of Collections................................................................66
Section 6.05. Regulatory Filings.....................................................................66
Section 6.06. Compliance With Law....................................................................66
Section 6.07. Activities.............................................................................67
Section 6.08. Indebtedness...........................................................................67
Section 6.09. Guarantees.............................................................................67
Section 6.10. Investments............................................................................67
Section 6.11. Merger; Transfers......................................................................67
Section 6.12. Payments...............................................................................67
Section 6.13. Other Agreements.......................................................................68
Section 6.14. Separate Entity Existence..............................................................68
Section 6.15. Location; Records......................................................................69
Section 6.16. Liability of Depositor; Indemnities....................................................69
Section 6.17. Bankruptcy Limitations.................................................................71
Section 6.18. Limitation on Liability of Depositor and Others........................................71
Section 6.19. Chief Executive Office.................................................................71
ARTICLE VII ESTABLISHMENT OF ACCOUNTS; PAYMENTS...........................................................72
Section 7.01. Trust Accounts; Collections............................................................72
Section 7.02. Cash Collateral Account................................................................73
Section 7.03. Trust Account Procedures...............................................................74
Section 7.04. Securityholder Payments................................................................75
Section 7.05. Allocations and Payments...............................................................75
Section 7.06. Repurchases of, or Substitution for, Contracts for Breach of
Representations and Warranties......................................................84
Section 7.07. Reassignment of Repurchased or Substituted Contracts...................................85
Section 7.08. Financial's and Depositor's Repurchase Option..........................................85
ARTICLE VIII SERVICER DEFAULTS; SERVICING TRANSFER........................................................86
Section 8.01. Servicer Default.......................................................................86
Section 8.02. Servicing Transfer.....................................................................87
Section 8.03. Appointment of Successor Servicer; Reconveyance; Successor Servicer to Act.............87
</TABLE>
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<PAGE>
<TABLE>
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----
<S> <C> <C>
Section 8.04. Notifications to Noteholders and the Equity Certificateholders.........................89
Section 8.05. Effect of Transfer.....................................................................89
Section 8.06. Database File..........................................................................89
Section 8.07. Successor Servicer Indemnification.....................................................89
Section 8.08. Responsibilities of the Successor Servicer.............................................90
Section 8.09 Servicer Not to Resign..................................................................90
ARTICLE IX SERVICER REPORTING.............................................................................91
Section 9.01. Monthly Reports........................................................................91
Section 9.02. Officer's Certificate..................................................................91
Section 9.03. Other Data.............................................................................91
Section 9.04. Annual Reporting; Evidence as to Compliance............................................91
Section 9.05. Annual Statement of Compliance from Servicer...........................................91
ARTICLE X TERMINATION 94
Section 10.01. Sale of Trust Assets..................................................................93
ARTICLE XI MISCELLANEOUS..................................................................................94
Section 11.01. Amendments............................................................................95
Section 11.02. Reserved..............................................................................95
Section 11.03. Governing Law.........................................................................95
Section 11.04. Notices...............................................................................96
Section 11.05. Severability of Provisions............................................................97
Section 11.06. Third Party Beneficiaries.............................................................97
Section 11.07. Counterparts..........................................................................98
Section 11.08. Headings..............................................................................98
Section 11.09. No Bankruptcy Petition; Disclaimer and Subordination..................................98
Section 11.10. Jurisdiction..........................................................................99
Section 11.11. Tax Characterization..................................................................99
Section 11.12. Servicer Indemnity....................................................................99
Section 11.13. Limitation of Liability of Owner Trustee.............................................100
Section 11.14. WAIVER OF JURY TRIAL.................................................................100
EXHIBITS
Exhibit A Form of Transfer Agreement ...............................................................A-1
Exhibit B Form of VFC Assignment....................................................................B-1
Exhibit C Initial Schedule of Contracts.............................................................C-1
Exhibit D Form of Servicer's Monthly Report.........................................................D-1
Exhibit E Form of Substitution Transfer Agreement...................................................E-1
Exhibit F [Reserved]................................................................................F-1
Exhibit G Schedule of Representations and Warranties................................................G-1
Exhibit H [Reserved]................................................................................H-1
Exhibit I [Reserved]................................................................................I-1
Exhibit J Minimum Value Filing Exceptions...........................................................J-1
</TABLE>
- iii -
<PAGE>
This POOLING AND SERVICING AGREEMENT, dated as of April 1,
2000, is among CIT Equipment Collateral 2000-1, a Delaware business trust
(together with its successors and assigns, the "Issuer" or the "Trust"), NCT
Funding Company, L.L.C., a Delaware limited liability company (together with its
successors and assigns, the "Depositor"), AT&T Capital Corporation, a Delaware
corporation (together with its successors and assigns, "TCC" and, in its
capacity as the Servicer, the "Servicer") and Newcourt Financial USA Inc.
(together with its successors and assigns, "Financial").
WHEREAS the Depositor desires to fund the Trust by selling,
conveying and assigning from time to time, pursuant hereto or Substitution
Transfer Agreements hereunder, designated Contracts or pools of Contracts
together with certain related security therefor and other related rights and
property as further described herein, which Contracts were originated by one or
more Financing Originators, or acquired by purchase and assignment by a
Financing Originator from the prior owner thereof, and subsequently conveyed (i)
by certain Financing Originators to Financial, (ii) by Financial to the
Depositor, with respect to Contracts and related assets both originated or
acquired directly by Financial as a Financing Originator, and acquired by
Financial from the other Financing Originators as described in clause (i) above,
(iii) in the case of the VFC Contracts, by the Depositor to the VFC Trust (as
defined herein) and (iv) in the case of the VFC Contracts, by the VFC Trust to
the Depositor; and
WHEREAS the Trust is willing to purchase and accept assignment
of such Contracts and related assets; and
WHEREAS the Servicer is willing to service such Contracts and
related assets for the benefit and account of the Trust and the Holders pursuant
to the terms hereof;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"Accounting Date" means, with respect to a Payment Date, the
last day of the preceding calendar month.
"Accrual Period" means, with respect to any Payment Date, the
period from and including the immediately preceding Payment Date to but
excluding such Payment Date, provided, that the initial Accrual Period following
the Closing Date shall be the period from and including the Closing Date to but
excluding the first Payment Date following the Closing Date.
"Addition Notice" means, with respect to any transfer of
Subsequent Contracts to the Trust pursuant to Section 2.04 (and the Depositor's
corresponding prior purchase of such
-1-
<PAGE>
Contracts from Financial), a notice, which shall be given at least five days
prior to the related Subsequent Transfer Date, identifying the Subsequent
Contracts to be transferred, the Contract Principal Balance of such Subsequent
Contracts and the related Substitution Event (with respect to an identified
Contract or Contracts then in the Contracts Pool) to which such Subsequent
Contract relates, with such notice to be signed both by the Depositor and
Financial.
"Administration Agreement" means the Administration Agreement
dated as of April 1, 2000 by and among the Trust, TCC, the Depositor and the
Indenture Trustee.
"Administrator" shall be the party named as such under the
Administration Agreement.
"Affiliate" of any specified Person means any other Person
controlling or controlled by, or under common control with, such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" or
"controlled" have meanings correlative to the foregoing.
"Agreement" means this Pooling and Servicing Agreement, as
amended, restated, supplemented or otherwise modified from time to time in
accordance with the terms hereof.
"Aggregate Principal Amount" means, with respect to any group
of Notes, at any date of determination, the sum of the Principal Amounts of such
Notes on such date of determination.
"Allocation Criteria" means, with respect to the allocation of
Insurance Proceeds or Liquidation Proceeds between the Trust (for inclusion as
Pledged Revenues) and the Depositor, as contemplated in the definition of
Available Pledged Revenues, that Insurance Proceeds or Liquidation Proceeds with
respect to the Contracts consisting of Leases are allocable pro rata between
inclusion as Available Pledged Revenues in respect of the Contract Pool, on the
one hand, and directly to the Depositor, on the other, based upon (i) for
allocation to Available Pledged Revenues, the Required Payoff Amount for such
Lease (determined as of the last day of the Collection Period during which such
Lease became a Defaulted Contract), and (ii) for allocation to the Depositor,
the Book Value of the related Equipment; provided, that in the event the
Insurance Proceeds or Liquidation Proceeds in respect of a particular Lease
exceed the sum of such Required Payoff Amount for such Lease plus the Book Value
of the related Equipment, any such excess shall be allocated solely to the
Depositor.
"Amount Available" means, with respect to any Payment Date,
the sum of (i) the Available Pledged Revenues for such Payment Date, (ii) that
portion of the balance in the Cash Collateral Account available for withdrawal
by the Indenture Trustee in accordance with Section 7.05(d), (iii) with respect
to the Class A-2a and Class A-2b (but only after the Class A-2a Maturity Date)
Notes only, amounts, if any, paid to the Issuer pursuant to the Class A-2 Swap
Agreement and (iv) with respect to the Class A-3 Notes only, amounts, if any,
paid to the Issuer pursuant to the Class A-3 Swap Agreement.
-2-
<PAGE>
"Applicable Security" means, with respect to a Vendor Loan,
any (i) Secondary Contract securing such Vendor Loan and (ii) Equipment securing
such Vendor Loan or a related Secondary Contract.
"Available Cash Collateral" means, with respect to a Payment
Date, the amount of funds equal to the lesser of (i) the amount on deposit in
the Cash Collateral Account (determined (a) exclusive of any Investment Earnings
thereon and (b) before giving effect to any deposit to be made or withdrawals
from the Cash Collateral Account with respect to such Payment Date), and (ii)
the Required Cash Collateral Amount.
"Available Pledged Revenues" means, as to any Payment Date,
the sum of (i) the Related Collection Period Pledged Revenues for such Payment
Date, (ii) all Purchase Amounts (other than any portion thereof attributable to
the Book Value of the Leased Equipment) on deposit in the Collection Account as
of the immediately preceding Deposit Date, (iii) the amount paid by Financial or
the Depositor to purchase the Contracts pursuant to Section 7.08 of this
Agreement on deposit in the Collection Account as of the immediately preceding
Deposit Date, and (iv) to the extent necessary to pay the Note Interest
Distributable Amount for such Payment Date, the Current Collection Period
Pledged Revenues for such Payment Date.
"Book Value" means, with respect to any Equipment subject to a
Lease, the value of such Equipment as shown on the accounting books and records
of the applicable Financing Originator (or the Depositor, in the case of
Equipment relating to Contracts being transferred pursuant to the VFC
Assignment), as of the Cut-Off Date for the related Lease (it being understood
that Book Value constitutes a measure of the lessor's residual interest in the
Equipment as shown on its books and records as of such date, net of the
financial asset shown on such books and records represented by the discounted
Scheduled Payments owing on the Lease).
"Business Day" means any day which is neither a Saturday or a
Sunday, nor another day on which banking institutions in the cities of
Livingston, New Jersey or New York, New York are authorized or obligated by law,
executive order, or governmental decree to be closed.
"Business Trust Statute" has the meaning specified in the
Trust Agreement.
"Cash Collateral Account" means the Cash Collateral Account
established and maintained pursuant to Section 7.01 hereof.
"Cash Collateral Account Agreement" means the Loan Agreement
dated as of April 1, 2000, among the Depositor, the Trust, the Indenture
Trustee, the Servicer, the Cash Collateral Account Lenders and the Cash
Collateral Account Lenders' Agent, as the same may be amended, supplemented or
otherwise modified in accordance with the terms thereof.
"Cash Collateral Account Lenders" means the parties identified
as lenders in the Cash Collateral Account Agreement.
"Cash Collateral Account Lenders' Agent" means the party
identified as agent for the Cash Collateral Account Lenders in the Cash
Collateral Account Agreement.
-3-
<PAGE>
"Cash Collateral Initial Balance" means $41,768,679.
"Casualty Loss" means, with respect to any item of Equipment,
the loss, theft, damage beyond repair or governmental condemnation or seizure of
such item of Equipment.
"Certificate of Formation" means the limited liability company
Certificate of Formation of the Depositor.
"Certificate of Trust" has the meaning given such term in the
Trust Agreement.
"Certificate Register" has the meaning specified in the Trust
Agreement.
"CIT" means The CIT Group, Inc.
"Class" means any of the group of Notes or the Equity
Certificate identified herein as the Class A-1 Notes, the Class A-2a Notes, the
Class A-2b Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B Notes,
the Class C Notes, the Class D Notes, or the Equity Certificate, as applicable.
"Class A Notes" means the Class A-1 Notes, the Class A-2a
Notes, the Class A-2b Notes, the Class A-3 Notes and the Class A-4 Notes.
"Class A Percentage" means 94.0%.
"Class A Principal Account" means the account so designated
established pursuant to Section 7.01.
"Class A Principal Payment Amount" means:
(1) On or prior to the Class A-2a Maturity Date:
(A) with respect to any Payment Date on or prior
to the Payment Date on which the Principal
Amount of the Class A-1 Notes has been reduced
to zero, the greater of (i) the excess of (x)
the Principal Amount of the Class A-1 Notes
over (y) the Class A-1 Scheduled Principal
Balance and (ii) the excess of (x) the sum of
the Principal Amount of the Class A-1, Class
A-2a, Class A-3 and Class A-4 Notes over (y)
the Class A Target Principal Amount; and
(B) with respect to any Payment Date thereafter,
the excess of (x) the sum of the Principal
Amount of the Class A-2a, Class A-3 and Class
A-4 Notes over (y) the Class A Target
Principal Amount; and
(2) After the Class A-2a Maturity Date:
(A) with respect to any Payment Date on or prior
to the Payment Date on which the Principal
Amount of the Class A-1 Notes has been
-4-
<PAGE>
reduced to zero, the greater of (i) the excess
of (x) Principal Amount of the Class A-1 Notes
over (y) the Class A-1 Scheduled Principal
Balance and (ii) the excess of (x) the sum of
the Principal Amount of the Class A-1, Class
A-2a, Class A-2b, Class A-3 and Class A-4
Notes over (y) the Class A Target Principal
Amount; and
(B) with respect to any Payment Date thereafter,
the excess of (x) the sum of the Principal
Amount of the Class A-2a, Class A-2b, Class
A-3 and Class A-4 Notes over (y) the Class A
Target Principal Amount;
provided, however, that in no event shall the Class A Principal Payment Amount
exceed the Principal Amount of the Class A Notes.
"Class A Target Principal Amount" means, with respect to any
Payment Date, the product of (i) the Class A Percentage and (ii) the Contract
Pool Principal Balance as of the related Accounting Date.
"Class A-1 Interest Carryover Shortfall" means, with respect
to any Payment Date, the excess, if any, of the Class A-1 Interest Distributable
Amount for the preceding Payment Date over the amount that was actually
distributed in respect of interest on the Class A-1 Notes on such preceding
Payment Date, plus, to the extent permitted by law, an amount equal to the
product of (i) the Class A-1 Interest Rate, (ii) such excess, and (iii) a
fraction equal to the number of days in the related Accrual Period divided by
360.
"Class A-1 Interest Distributable Amount" means, with respect
to any Payment Date, the sum of the Class A-1 Monthly Interest Distributable
Amount and the Class A-1 Interest Carryover Shortfall for such Payment Date.
"Class A-1 Interest Rate" means 6.723024% per annum.
"Class A-1 Maturity Date" means May 21, 2001 (or, if such day
is not a Business Day, the next preceding Business Day).
"Class A-1 Monthly Interest Distributable Amount" means, with
respect to any Accrual Period and the related Payment Date, an amount equal to
the product of (i) the Class A-1 Interest Rate, (ii) the Principal Amount of the
Class A-1 Notes on the immediately preceding Payment Date, after giving effect
to all payments of principal to Class A-1 Noteholders on or prior to such
immediately preceding Payment Date (or, in the case of the first Payment Date,
the Initial Class A-1 Principal Amount), and (iii) a fraction equal to the
number of days in such Accrual Period divided by 360.
"Class A-1 Notes" means the $288,583,600 aggregate principal
amount of 6.723024% Receivable-Backed Notes, Class A-1, issued pursuant to the
Indenture.
-5-
<PAGE>
"Class A-1 Scheduled Principal Balance" means, with respect to
each Payment Date, the balance for such Payment Date as set forth in the
following table.
<TABLE>
<CAPTION>
---------------------------------------------------------------
Payment Date Class A-1 Scheduled Principal Balance
---------------------------------------------------------------
<S> <C>
May 2000 257,091,831
June 2000 231,491,950
July 2000 205,576,575
August 2000 179,361,288
September 2000 155,254,318
October 2000 131,613,858
November 2000 107,632,754
December 2000 85,310,021
January 2001 63,364,064
February 2001 40,927,563
March 2001 19,832,726
April 2001 0
---------------------------------------------------------------
</TABLE>
"Class A-2 Assumed Fixed Rate" means a fixed rate of 7.2475%
per annum (based on a 360-day year comprised of twelve 30-day months).
"Class A-2 Notes" means collectively the Class A-2a Notes and
the Class A-2b Notes.
"Class A-2 Swap Agreement" means the ISDA Master Agreement
dated as of the Closing Date between the Issuer and the Class A-2 Swap
Counterparty, including the related schedule and confirmation.
"Class A-2 Swap Counterparty" means Westdeutsche Landesbank
Girozentrale, New York Branch, in its capacity as Swap Counterparty under the
Class A-2 Swap Agreement and its successors and assigns in such capacity.
"Class A-2a Event of Default" has the meaning specified in the
Indenture.
-6-
<PAGE>
"Class A-2a Funding Account" means the account so designated
established pursuant to Section 7.01.
"Class A-2a Interest Carryover Shortfall" means, with respect
to any Payment Date, the excess, if any, of the Class A-2a Interest
Distributable Amount for the preceding Payment Date over the amount that was
actually distributed in respect of interest on the Class A-2a Notes on such
preceding Payment Date, plus, to the extent permitted by law, an amount equal to
the product of (i) the Class A-2a Interest Rate, (ii) such excess, and (iii) a
fraction equal to the number of days in the related Accrual Period divided by
360.
"Class A-2a Interest Distributable Amount" means, with respect
to any Payment Date, the sum of the Class A-2a Monthly Interest Distributable
Amount and the Class A-2a Interest Carryover Shortfall for such Payment Date.
"Class A-2a Interest Rate" means, on or prior to the Class
A-2a Maturity Date, for each Accrual Period One-Month LIBOR minus 0.01% and
after the Class A-2a Maturity Date, for each Accrual Period One-Month LIBOR plus
0.13%.
"Class A-2a Maturity Date" means March 20, 2001 (or, if such
day is not a Business Day, the next succeeding Business Day thereafter).
"Class A-2a Monthly Interest Distributable Amount" means (a)
with respect to the first Accrual Period and the related Payment Date, an amount
equal to the product of (i) the Class A-2a Interest Rate, (ii) Initial Class
A-2a Principal Amount, and (iii) a fraction equal to the number of days in such
Accrual Period divided by 360, and (b) with respect to each subsequent Accrual
Period and the related Payment Date, an amount equal to the product of (i) the
Class A-2a Interest Rate, (ii) the Principal Amount of the Class A-2a Notes on
the immediately preceding Payment Date, after giving effect to all payments of
principal to Class A-2a Noteholders on or prior to such immediately preceding
Payment Date, and (iii) a fraction equal to the number of days in such Accrual
Period divided by 360.
"Class A-2a Notes" means the $144,291,800 aggregate principal
amount of Floating Rate Receivable-Backed Notes, Class A-2a, issued pursuant to
the Indenture.
"Class A-2b Interest Carryover Shortfall" means (a) with
respect to any Payment Date on or prior to the Class A-2a Maturity Date, zero,
and (b) with respect to any Payment Date thereafter, the excess, if any, of the
Class A-2b Interest Distributable Amount for the preceding Payment Date over the
amount that was actually distributed in respect of interest on the Class A-2b
Notes on such preceding Payment Date, plus, to the extent permitted by law, an
amount equal to the product of (i) the Class A-2b Interest Rate, (ii) such
excess, and (iii) a fraction equal to the number of days in the related Accrual
Period divided by 360.
"Class A-2b Interest Distributable Amount" means the sum of
the Class A-2b Monthly Interest Distributable Amount and the Class A-2b Interest
Carryover Shortfall for such Payment Date.
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"Class A-2b Interest Rate" means, after the Class A-2a
Maturity Date, for each Accrual Period One-Month LIBOR plus 0.13%.
"Class A-2b Maturity Date" means September 20, 2002 (or, if
such day is not a Business Day, the next succeeding Business Day thereafter).
"Class A-2b Monthly Interest Distributable Amount" means (a)
with respect to any Payment Date on or prior to the Class A-2a Maturity Date and
the related Accrual Period, an amount equal to the Investment Earnings on
amounts on deposit in the Class A-2a Funding Account for such Accrual Period,
and (b) with respect to each subsequent Payment Date and the related Accrual
Period, an amount equal to the product of (i) the Class A-2b Interest Rate, (ii)
the Principal Amount of the Class A-2b Notes on the immediately preceding
Payment Date, after giving effect to all payments of principal to Class A-2b
Noteholders on or prior to such immediately preceding Payment Date, and (iii) a
fraction equal to the number of days in such Accrual Period divided by 360.
"Class A-2b Notes" means the $144,291,800 aggregate principal
amount of Floating Rate Receivable-Backed Notes, Class A-2b, issued pursuant to
the Indenture.
"Class A-3 Assumed Fixed Rate" means a fixed rate of 7.4780%
per annum (based on a 360-day year comprised of twelve 30-day months)
"Class A-3 Interest Carryover Shortfall" means, with respect
to any Payment Date, the excess, if any, of the Class A-3 Interest Distributable
Amount for the preceding Payment Date over the amount that was actually
distributed in respect of interest on the Class A-3 Notes on such preceding
Payment Date, plus, to the extent permitted by law, an amount equal to the
product of (i) the Class A-3 Interest Rate, (ii) such excess, and (iii) a
fraction equal to the number of days in the related Accrual Period divided by
360.
"Class A-3 Interest Distributable Amount" means, with respect
to any Payment Date, the sum of the Class A-3 Monthly Interest Distributable
Amount and the Class A-3 Interest Carryover Shortfall for such Payment Date.
"Class A-3 Interest Rate" means for each Accrual Period
One-Month LIBOR plus 0.13%.
"Class A-3 Maturity Date" means January 20, 2004 (or, if such
day is not a Business Day, the next succeeding Business Day thereafter).
"Class A-3 Monthly Interest Distributable Amount" means (a)
with respect to the first Accrual Period and the related Payment Date, an amount
equal to the product of (i) the Class A-3 Interest Rate, (ii) the Initial Class
A-3 Principal Amount, and (iii) a fraction equal to the number of days in such
Accrual Period divided by 360, and (b) with respect to each subsequent Accrual
Period and the related Payment Date, an amount equal to the product of (i) the
Class A-3 Interest Rate, (ii) the Principal Amount of the Class A-3 Notes on the
immediately preceding Payment Date, after giving effect to all payments of
principal to Class A-3 Noteholders on or
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prior to such immediately preceding Payment Date, and (iii) a fraction equal to
the number of days in such Accrual Period divided by 360.
"Class A-3 Notes" means the $187,959,055 aggregate principal
amount of Floating Rate Receivable-Backed Notes, Class A-3, issued pursuant to
the Indenture.
"Class A-3 Swap Agreement" means the ISDA Master Agreement
dated as of the Closing Date between the Issuer and the Class A-3 Swap
Counterparty, including the related schedule and confirmation.
"Class A-3 Swap Counterparty" means Westdeutsche Landesbank
Girozentrale, New York Branch, in its capacity as Swap Counterparty under the
Class A-3 Swap Agreement and its successors and assigns in such capacity.
"Class A-4 Interest Carryover Shortfall" means, with respect
to any Payment Date, the excess, if any, of the Class A-4 Interest Distributable
Amount for the preceding Payment Date over the amount that was actually
distributed in respect of interest on the Class A-4 Notes on such preceding
Payment Date, plus, to the extent permitted by law, an amount equal to the
product of (i) the Class A-4 Interest Rate, (ii) such excess, and (iii) a
fraction equal to one-twelfth.
"Class A-4 Interest Distributable Amount" means, with respect
to any Payment Date, the sum of the Class A-4 Monthly Interest Distributable
Amount and the Class A-4 Interest Carryover Shortfall for such Payment Date.
"Class A-4 Interest Rate" means 7.58% per annum.
"Class A-4 Maturity Date" means March 20, 2008 (or, if such
day is not a Business Day, the next succeeding Business Day thereafter).
"Class A-4 Monthly Interest Distributable Amount" means (a)
with respect to the first Accrual Period and the related Payment Date, an amount
equal to the product of (i) the Class A-4 Interest Rate, (ii) the Initial Class
A-4 Principal Amount, and (iii) a fraction equal to 10 divided by 360, and (b)
with respect to each subsequent Accrual Period and the related Payment Date, an
amount equal to the product of (i) the Class A-4 Interest Rate, (ii) the
Principal Amount of the Class A-4 Notes on the immediately preceding Payment
Date, after giving effect to all payments of principal to Class A-4 Noteholders
on or prior to such immediately preceding Payment Date, and (iii) a fraction
equal to one-twelfth.
"Class A-4 Notes" means the $93,030,239 aggregate principal
amount of 7.58% Receivable-Backed Notes, Class A-4, issued pursuant to the
Indenture.
"Class B Floor" means, with respect to any Payment Date, an
amount equal to (i) 2.875% of the Initial Contract Pool Principal Balance, plus
(ii) the Unfunded Loss Amount, if any, for such Payment Date, minus (iii) the
sum of the Principal Amount of the Class C Notes and the Principal Amount of the
Class D Notes (prior to giving effect to any payments of principal on the Class
C or Class D Notes on such Payment Date) and the amount on deposit in
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the Cash Collateral Account (after giving effect to withdrawals to be made on
such Payment Date); provided, however, that in no event will the Class B Floor
be greater than the Principal Amount of the Class B Notes immediately prior to
such Payment Date nor less than zero.
"Class B Interest Carryover Shortfall" means, with respect to
any Payment Date, the excess, if any, of the Class B Interest Distributable
Amount for the preceding Payment Date over the amount that was actually
distributed in respect of interest on the Class B Notes on such preceding
Payment Date, plus, to the extent permitted by law, an amount equal to the
product of (i) the Class B Interest Rate, (ii) such excess, and (iii) a fraction
equal to one-twelfth.
"Class B Interest Distributable Amount" means, with respect to
any Payment Date, the sum of the Class B Monthly Interest Distributable Amount
and the Class B Interest Carryover Shortfall for such Payment Date.
"Class B Interest Rate" means 7.54% per annum.
"Class B Maturity Date" means November 20, 2008 (or, if such
day is not a Business Day, the next succeeding Business Day thereafter).
"Class B Monthly Interest Distributable Amount" means (a) with
respect to the first Accrual Period and the related Payment Date, an amount
equal to the product of (i) the Class B Interest Rate, (ii) the Initial Class B
Principal Amount, and (iii) a fraction equal to 10 divided by 360, and (b) with
respect to each subsequent Accrual Period and the related Payment Date, an
amount equal to the product of (i) the Class B Interest Rate, (ii) the Principal
Amount of the Class B Notes on the immediately preceding Payment Date, after
giving effect to all payments of principal to Class B Noteholders on or prior to
such immediately preceding Payment Date, and (iii) a fraction equal to
one-twelfth.
"Class B Notes" means the $11,391,458 aggregate principal
amount of 7.54% Receivable-Backed Notes, Class B, issued pursuant to the
Indenture.
"Class B Percentage" means 1.50%.
"Class B Principal Payment Amount" means the lesser of (i) the
excess, if any, of (a) the Total Principal Payment Amount over (b) the Class A
Principal Payment Amount and (ii) the excess, if any, of (a) the Principal
Amount of the Class B Notes over (b) the greater of (1) the Class B Target
Principal Amount and (2) the Class B Floor, if any; provided, however, that in
no event will the Class B Principal Payment Amount exceed the Principal Amount
of the Class B Notes.
"Class B Target Principal Amount" means, with respect to any
Payment Date, the product of (i) the Class B Percentage and (ii) the Contract
Pool Principal Balance as of the related Accounting Date.
"Class C Floor" means, with respect to any Payment Date, (i)
2.0% of the Initial Contract Pool Principal Balance, plus (ii) the Unfunded Loss
Amount, if any, for such Payment Date, minus (iii) the sum of the Principal
Amount of the Class D Notes (prior to giving effect to
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any payments of principal on the Class D Notes on such Payment Date) and the
amount on deposit in the Cash Collateral Account (after giving effect to
withdrawals to be made on such Payment Date); provided, however, that in no
event will the Class C Floor be greater than the Principal Amount of the Class C
Notes immediately prior to such Payment Date nor less than zero. Furthermore, if
the Principal Amount of the Class B Notes immediately prior to any Payment Date
is less than or equal to the Class B Floor for such Payment Date, the Class C
Floor with respect to such Payment Date will equal the Principal Amount of the
Class C Notes immediately prior to such Payment Date.
"Class C Interest Carryover Shortfall" means, with respect to
any Payment Date, the excess, if any, of the Class C Interest Distributable
Amount for the preceding Payment Date over the amount that was actually
distributed in respect of interest on the Class C Notes on such preceding
Payment Date, plus, to the extent permitted by law, an amount equal to the
product of (i) the Class C Interest Rate, (ii) such excess, and (iii) a fraction
equal to one-twelfth.
"Class C Interest Distributable Amount" means, with respect to
any Payment Date, the sum of the Class C Monthly Interest Distributable Amount
and the Class C Interest Carryover Shortfall for such Payment Date.
"Class C Interest Rate" means 7.63% per annum.
"Class C Maturity Date" means November 20, 2008 (or, if such
day is not a Business Day, the next succeeding Business Day thereafter).
"Class C Monthly Interest Distributable Amount" means (a) with
respect to the first Accrual Period and the related Payment Date, an amount
equal to the product of (i) the Class C Interest Rate, (ii) the Initial Class C
Principal Amount, and (iii) a fraction equal to 10 divided by 360, and (b) with
respect to each subsequent Accrual Period and the related Payment Date, an
amount equal to the product of (i) the Class C Interest Rate, (ii) the Principal
Amount of the Class C Notes on the immediately preceding Payment Date, after
giving effect to all payments of principal to Class C Noteholders on or prior to
such immediately preceding Payment Date, and (iii) a fraction equal to
one-twelfth.
"Class C Notes" means the $15,188,611 aggregate principal
amount of 7.63% Receivable-Backed Notes, Class C, issued pursuant to the
Indenture.
"Class C Percentage" means 2.0%.
"Class C Principal Payment Amount" means the lesser of (i) the
excess, if any, of (a) the Total Principal Payment Amount over (b) the sum of
the Class A Principal Payment Amount and the Class B Principal Payment Amount
and (ii) the excess, if any, of (a) the Principal Amount of the Class C Notes
over (b) the greater of (1) the Class C Target Principal Amount and (2) the
Class C Floor, if any; provided, however, that in no event will the Class C
Principal Payment Amount exceed the Principal Amount of the Class C Notes.
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"Class C Target Principal Amount" means, with respect to any
Payment Date, the product of (i) the Class C Percentage and (ii) the Contract
Pool Principal Balance as of the related Accounting Date.
"Class D Floor" means, with respect to any Payment Date, (i)
1.60% of the Initial Contract Pool Principal Balance, plus (ii) the Unfunded
Loss Amount, if any, for such Payment Date, minus (iii) the amount on deposit in
the Cash Collateral Account (after giving effect to withdrawals to be made on
such Payment Date); provided, however, that in no event will the Class D Floor
be greater than the Class D Principal Balance immediately prior to such Payment
Date nor less than zero. Furthermore, if the Principal Amount of the Class C
Notes immediately prior to any Payment Date is less than or equal to the Class C
Floor for such Payment Date, the Class D Floor with respect to such Payment Date
will equal the Principal Amount of the Class D Notes immediately prior to such
Payment Date.
"Class D Interest Carryover Shortfall" means, with respect to
any Payment Date, the excess, if any, of the Class D Interest Distributable
Amount for the preceding Payment Date over the amount that was actually
distributed in respect of interest on the Class D Notes on such preceding
Payment Date, plus, to the extent permitted by law, an amount equal to the
product of (i) the Class D Interest Rate, (ii) such excess, and (iii) a fraction
equal to one-twelfth.
"Class D Interest Distributable Amount" means, with respect to
any Payment Date, the sum of the Class D Monthly Interest Distributable Amount
and the Class D Interest Carryover Shortfall for such Payment Date.
"Class D Interest Rate" means 8.09% per annum.
"Class D Maturity Date" means November 20, 2008 (or, if such
day is not a Business Day, the next succeeding Business Day thereafter).
"Class D Monthly Interest Distributable Amount" means (a) with
respect to the first Accrual Period and the related Payment Date, an amount
equal to the product of (i) the Class D Interest Rate, (ii) the Initial Class D
Principal Amount, and (iii) a fraction equal to 10 divided by 360, and (b) with
respect to each subsequent Accrual Period and the related Payment Date, an
amount equal to the product of (i) the Class D Interest Rate, (ii) the Principal
Amount of the Class D Notes on the immediately preceding Payment Date, after
giving effect to all payments of principal to Class D Noteholders on or prior to
such immediately preceding Payment Date, and (iii) a fraction equal to
one-twelfth.
"Class D Notes" means the $18,985,762 aggregate principal
amount of 8.09% Receivable-Backed Notes, Class D, issued pursuant to the
Indenture.
"Class D Percentage" means 2.50%.
"Class D Principal Payment Amount" means the lesser of (i) the
excess, if any, of (a) the Total Principal Payment Amount over (b) the sum of
the Class A Principal Payment Amount, the Class B Principal Payment Amount and
the Class C Principal Payment Amount and (ii) the excess, if any, of (a) the
Principal Amount of the Class D Notes over (b) the greater of (1)
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the Class D Target Principal Amount and (2) the Class D Floor, if any; provided,
however, that in no event will the Class D Principal Payment Amount exceed the
Principal Amount of the Class D Notes.
"Class D Target Principal Amount" means, with respect to any
Payment Date, the product of (i) the Class D Percentage and (ii) the Contract
Pool Principal Balance as of the related Accounting Date.
"Closing Date" means May 10, 2000.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Account" means the account so designated
established pursuant to Section 7.01.
"Collection Account Property" means the Collection Account,
all amounts and investments held from time to time in the Collection Account
(whether in the form of deposit accounts, physical property, book-entry
securities, uncertificated securities or otherwise), and all proceeds of the
foregoing.
"Collection Period" means a period beginning on the first day
of a calendar month and ending on, but not including, the first day of the next
calendar month, provided that the first Collection Period shall be the period
beginning on the Initial Cut-Off Date and ending on, but not including, the
first day of the calendar month immediately following the calendar month in
which the Closing Date occurs.
"Commission" means the United States Securities and Exchange
Commission.
"Computer Disk" means the computer disk generated by the
Servicer (or applicable Financing Originator acting as subservicer as described
in Section 5.05), which provides information relating to Contracts in the
Contract Pool and which was used by such party in selecting the related
Contracts for conveyance and inclusion in such Contract Pool, and includes the
master file and the history file as well as servicing information with respect
to such Contracts.
"Contract" means each End-User Contract and each Vendor Loan
listed on any Schedule of Contracts but, unless otherwise specified herein,
shall not refer to any Secondary Contract.
"Contract Assets" means, with respect to any Contracts
(including Substitute Contracts) and related assets conveyed or being conveyed
to the Depositor pursuant to a Substitution Assignment Agreement, the VFC
Assignment or the Non-VFC Purchase Agreement, and concurrently conveyed or being
conveyed by the Depositor to the Trust pursuant to this Pooling Agreement or a
Substitution Transfer Agreement, all right, title and interest of Financial or
the VFC Trust, as the case may be, in, to and under:
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(i) such Contracts, and all monies due or to become
due in payment of such Contracts on and after the relevant
Cut-Off Date, and including Scheduled Payments due but not yet
received prior to the relevant Cut-Off Date and all other
Scheduled Payments (including in respect of any Guaranteed
Residual Investment) due or becoming due on or after the
relevant Cut-Off Date, any Prepayments, any payments in
respect of a casualty or early termination, any Liquidation
Proceeds received with respect thereto, but excluding any
Scheduled Payments both due and actually received prior to the
related Cut-Off Date and any Excluded Amounts;
(ii) the Financed Items related to such Contracts
and, in the case of any Vendor Loan, related Applicable
Security, including all proceeds from any sale or other
disposition of such Financed Items (but subject to the
exclusion and release herein of Excluded Amounts) and any
Guaranteed Residual Investment;
(iii) the related Contract Files;
(iv) all payments made or to be made in the future
with respect to such Contracts or the Obligor thereunder under
any Vendor Agreements with the relevant Financing Originator
and under any guarantee or similar credit enhancement with
respect to such Contracts;
(v) all Insurance Proceeds with respect to each such
Contract; and
(vi) all income from and proceeds of the foregoing.
"Contract File" means, with respect to each Contract, the
fully executed original counterpart (for UCC purposes) of the Contract, the
original certificate of title or other title document with respect to the
related Equipment (if applicable), and otherwise such documents or electronic
entries, if any, that the Servicer (or applicable Financing Originator) keeps on
file in accordance with Customary Policies and Procedures evidencing ownership
of such Equipment (if applicable), and all other documents originally delivered
to the Financing Originator or held by the Servicer (or subservicer under
Section 5.05) with respect to any Contract.
"Contract File Locations" means, with respect to Newcourt
Technologies Corporation, Michigan, with respect to Newcourt Communications
Finance Corporation, New Jersey, with respect to Newcourt Leasing Corporation,
Indiana and New Jersey, and with respect to Financial, Texas, Illinois,
Indianapolis, New Jersey, and Connecticut.
"Contract Pool" means, as of any date of determination, the
aggregate of the Contracts which have been conveyed to the Trust and which
constitute as of such date Trust Assets under the terms and provisions hereof.
"Contract Pool Principal Balance" means with respect to any
Payment Date, the sum of the Contract Principal Balances (computed as of the
related Accounting Date) for all Contracts.
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"Contract Principal Balance" means as of any Accounting Date,
with respect to any Contract, the present value of the unpaid Scheduled Payments
due on such Contract after such Accounting Date (excluding all Scheduled
Payments due on or prior to, but not received as of, such Accounting Date, as
well as any Scheduled Payments due after, but received as of, such Accounting
Date), after giving effect to any Prepayments received on or prior to such
Accounting Date, discounted monthly at the Discount Rate (assuming, for purposes
of such calculation, that each Scheduled Payment is due on the last day of the
applicable Collection Period); provided that, for purposes of computing the
Total Principal Payment Amount or the Required Cash Collateral Amount for a
given Payment Date (as well as all Payment Dates thereafter), the Contract
Principal Balance of any Contract which became a Defaulted Contract during the
related Collection Period or was required to be purchased by Financial as of the
last day of the related Collection Period in accordance with Section 5.01 of the
Purchase and Sale Agreement, will be deemed to be zero on and after the last day
of such Collection Period.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Servicer or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Corporate Trust Office" means the office of the Owner Trustee
from which its corporate trust business shall be administered, which initially
shall be Allfirst Financial Center National Association, 499 Mitchell Road,
Millsboro, Delaware 19966 or such other office at such other address in the
State of Delaware as the Owner Trustee may designate from time to time by notice
to the Equity Certificateholder, the Servicer, the Administrator and the
Depositor.
"CPR" means a conditional prepayment rate which assumes that a
fraction of the outstanding Contract Pool is prepaid on each Payment Date and
also assumes that all Contracts have the same initial principal balance and
amortize at the same rate.
"CSA" means each conditional sales agreement, including, as
applicable, schedules, subschedules, supplements and amendments to a master
conditional sales agreement, pursuant to which specified assets were
conditionally sold to an Obligor at specified monthly, quarterly, semi-annual or
annual payments.
"Current Collection Period Pledged Revenues" means, with
respect to any Payment Date, the amount of Pledged Revenues in the Collection
Account as of the immediately preceding Deposit Date which were received by the
Servicer after the end of the related Collection Period, including all
Liquidation Proceeds so received but excluding any Purchase Amount.
"Customary Policies and Procedures" means, with respect to any
Contract Assets, the customary standards, policies and procedures of the
relevant Financing Originator with respect to such Contract Assets in effect at
the time of the Cut-Off Date with respect thereto, as the same may be changed
from time to time (provided that any such change does not materially impair (i)
the collectibility of the related Contract, or (ii) the Servicer's ability to
perform its obligations under this Agreement with respect thereto).
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"Cut-Off Date" means either or both (as the context may
require) the Initial Cut-Off Date and any Substitution Cut-Off Date, as
applicable to the Contract or Contracts in question.
"Date of Processing" means, with respect to any transaction or
Pledged Revenue, the date on which such transaction or Pledged Revenue is first
recorded (and, in the case of a transaction or Pledged Revenue related to a
particular Contract, identified as to such particular Contract) on the related
Financing Originator's or the Servicer's computer master file of Contracts
(without regard to the effective date of such recordation).
"Defaulted Contract" means a Contract in the Contract Pool
with respect to which there has occurred one or more of the following: (i) all
or some portion of any Scheduled Payment under the Contract (constituting at
least ten percent (10%) of such Scheduled Payment due) is more than 180 days
delinquent from its original due date (or, with respect to a Contract for which
there exists available payment recourse to a Vendor to satisfy the amount in
default, and which recourse was not yet available (pursuant to the contractual
terms thereof) or had not yet been paid by the Vendor prior to the end of such
180 day period, then at such time thereafter as the Vendor shall have failed to
pay such defaulted amount in accordance with the provisions of the Program
Agreement, Vendor Assignment or other agreement with the Vendor providing such
recourse), (ii) the Servicer has determined in its sole discretion, in
accordance with Customary Policies and Procedures (and taking into account any
available Vendor recourse), that such Contract is not collectible; or (iii) the
End-User under such Contract (or applicable Vendor, if such Contract is a Vendor
Loan) becomes the subject of an Insolvency Event.
"Delinquent Contract" means any Contract as to which all or a
portion of a Scheduled Payment (constituting at least ten percent (10%) of such
Scheduled Payment due) is more than 60 days delinquent from its original due
date.
"Deposit Date" means the Business Day immediately preceding
each Payment Date.
"Depositor" means the "Depositor" as defined in the preamble
hereto, or any successor entity thereto.
"Determination Date" means, with respect to any Payment Date,
the second Business Day prior to such Payment Date.
"Discount Rate" means 8.154%.
"Dollar" and "$" means lawful currency of the United States of
America.
"Eligible Contract" means each Contract owned (prior to its
conveyance by a TCC Financing Originator to Financial under the VFC Conveyancing
Agreement or the Non-VFC Conveyancing Agreement, as the case may be, if a TCC
Contract, prior to its conveyance by Financial to the Depositor under the VFC
Purchase Agreement or the Non-VFC Purchase Agreement, as the case may be, if a
Financial Contract, and prior to its conveyance by the VFC Trust to the
Depositor pursuant to the VFC Assignment, if a VFC Contract) by a TCC Financing
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Originator, Financial or the VFC Trust, as the case may, and with respect to
which each of the following is true (to the extent applicable to such type of
Contract) at the time of its conveyance to the Trust on the Closing Date (or
Substitution Transfer Date, as applicable):
(a) the information with respect to the Contract, any
Secondary Contract securing the obligations under such
Contract, and the Financed Items related to the Contract,
delivered to the Servicer by or at the direction of Financial
under the Substitute VFC Purchase Agreement or the Non-VFC
Purchase Agreement, as the case may be, or by or at the
direction of the VFC Trust pursuant to the VFC Assignment is
true and correct in all material respects;
(b) immediately prior to the transfer of such
Contract and any related Equipment (or security interest
therein) or Applicable Security to the Depositor (and the
Depositor's concurrent transfer thereof to the Trust), such
Contract was owned by Financial or the VFC Trust (and by the
Depositor following the transfer by Financial or the VFC
Trust) free and clear of any adverse claim, other than
Permitted Liens; and immediately prior to the transfer of such
Contract (if a TCC Contract) and any related Equipment (or
security interest therein) or Applicable Security by the
applicable TCC Financing Originator to Financial, such
Contract was owned by the applicable TCC Financing Originator
free and clear of any adverse claim, other than with respect
to Permitted Liens;
(c) the Contract is neither a Defaulted Contract nor
a Delinquent Contract;
(d) no provision of the Contract has been waived,
altered or modified in any material respect, except as
indicated in the Contract File;
(e) the Contract is a valid and binding payment
obligation of the Obligor and is enforceable in accordance
with its terms (except as may be limited by applicable
Insolvency Laws and the availability of equitable remedies);
(f) the Contract is not subject to litigation, or to
rights of rescission, setoff, counterclaim or defense and, to
Financial's or the Servicer's knowledge, no such rights have
been asserted or threatened with respect to the Contract;
(g) the Contract, at the time it was made, had been
originated in compliance (in all material respects) with
applicable law, and did not violate the laws of the United
States or any state in any material respect;
(h) (i) the Contract and any related Financed Item or
interest therein (other than Excluded Residual Investments)
have not been sold, transferred, assigned or pledged by the
relevant Financing Originator, Financial (in respect of TCC
Contracts) or the VFC Trust (in the case of VFC Contracts) to
any other Person (other than (a) the sale of Contracts and any
related financed or interest therein to Financial or to the
Depositor and then the VFC Trust and (b) the
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financed sale of Equipment to an End-User effected through an
End-User Contract), and (ii) if such Contract finances
Equipment, either (A) such Contract is secured by a fully
perfected lien or ownership interest in favor of the relevant
Financing Originator or, in the case of Equipment relating to
the VFC Contracts, the Depositor, on or in respect of the
related Equipment (other than as contemplated by the Minimum
Value Filing Exception), or, if the Contract is a Vendor Loan,
the Vendor Loan is secured by a fully perfected lien or
ownership interest in favor of the relevant Financing
Originator or the VFC Trust in the related Applicable
Security, or (B) in the case of such a Contract secured by a
Vehicle, within 90 calendar days of the origination or
acquisition of such Contract by the relevant Financing
Originator all applicable state registration or recording
procedures were initiated, and the Financing Originator's
interest in such Vehicle will be so noted or recorded within
180 days of such acquisition or origination, or a certificate
of title or similar evidence of recordation on which the
Financing Originator's interest has been noted has been
obtained;
(i) if the Contract constitutes an "instrument" or
"chattel paper" for purposes of the UCC, there is not more
than one "secured party's original" counterpart of the
Contract and such original counterpart is in the Contract
File;
(j) all filings (including filings of UCC financing
statements) necessary (i) in respect of Contracts consisting
of TCC Contracts, to evidence or perfect the conveyance or
transfer of the relevant TCC Financing Originator's ownership
interest in the TCC Contract, and the TCC Financing
Originator's corresponding interest in the related Equipment
or Applicable Security, as applicable, to Financial, and (ii)
in respect of all Contracts to evidence or perfect the
conveyance or transfer of Financial's or the VFC Trust's
ownership interest in the Contract, and Financial's
corresponding interest in the related Equipment or Applicable
Security, as applicable, to the Depositor (as well as the
concurrent conveyance of such property hereunder, other than
ownership interests in Equipment, from the Depositor to the
Trust), have been made or provided for in all appropriate
jurisdictions; provided, that UCC financing statement filings
with respect to Equipment or Applicable Security which name
the Financing Originator as secured party have not been
amended to indicate either Financial (with respect to TCC
Contracts), the Depositor or the Trust as an assignee
(although separate UCC filings were made against the relevant
Financing Originator's interest in Applicable Security in each
jurisdiction where a related Vendor is located); and provided
further, that only filings in the State of New Jersey have
been made in favor of the Trust as secured party against the
Depositor as debtor describing as collateral (among other
things) the Depositor's ownership interest in Equipment, in
respect of the security interest in Equipment owned by the
Depositor which has been granted to the Trust pursuant to
Section 2.01 hereof.
(k) the Obligor is not, to Financial's knowledge,
subject to bankruptcy or other insolvency proceedings;
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(l) the Obligor's billing address is in the United
States or Puerto Rico, and the Contract is a U.S.
dollar-denominated obligation;
(m) the Contract does not require the prior written
notification to or consent of an Obligor or contain any other
restriction on the transfer or assignment of the Contract,
other than (i) certain Contracts the Contract Pool Principal
Balance of which, in proportion to the Contract Pool Principal
Balance of all Contracts in the Contract Pool at the time of
conveyance, is not material, that require notifications of the
assignment to the Obligor, which notification will be given by
the Servicer not more than 10 days following the Closing Date
(or Substitution Transfer Date in the case of a Substitution
Contract) (it being understood that if such notifications are
not so timely obtained, the affected Contract shall be deemed
and treated for all purposes of this Pooling Agreement and the
other Transaction Documents as not having complied with this
criteria for an Eligible Contract as of the Closing Date or
Substitution Transfer Date, as the case may be), and (ii)
certain Contracts that require the consent of the related
Obligor, which consent shall have been obtained by the
Servicer not later than 10 days following the Closing Date or
Substitution Transfer Date, as the case may be;
(n) either (x) the obligations of the related Obligor
under such Contract are irrevocable and unconditional and
non-cancelable (it being understood that Contracts which are
prepayable in accordance with their terms shall not, by virtue
of that fact alone, be deemed revocable, conditional or
cancelable) or, if not irrevocable and unconditional, have the
benefit of a Vendor Guarantee or (y) with respect to certain
Leases with Lessees that are governmental entities or
municipalities, if such Lease is canceled in accordance with
its terms, either (1) the Vendor that assigned such Lease to
the applicable Financing Originator is unconditionally
obligated to repurchase such lease from the Financing
Originator for a purchase price not less than the Contract
Principal Balance of such Lease (as of the date of
cancellation), or (2) pursuant to the Purchase and Sale
Agreements, Financial has indemnified the Depositor against
such cancellation in an amount at least equal to the Contract
Principal Balance of such Lease (as of the date of
cancellation), less any amounts paid by the Vendor pursuant to
clause (1);
(o) no selection procedure adverse to the interests
of the Trust or the Equity Certificateholder was used in
selecting the Contract for the Contract Pool;
(p) the Obligor under the Contract is required to
maintain casualty insurance or to self-insure with respect to
the related Equipment in accordance with Customary Policies
and Procedures;
(q) the Contract constitutes chattel paper, an
account, an instrument or a general intangible, in each case
as defined under the UCC;
(r) the Contract is not a "consumer lease" as defined
in Section 2A-103(1)(e) of the UCC;
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(s) if such Contract is a Lease, to the best
knowledge of the relevant Financing Originator, the Lessee
thereunder has accepted and has had reasonable opportunity to
inspect the related Equipment;
(t) except as provided in clause (n) above, the
Contract is not subject to any guarantee by the Financing
Originator, nor has the Financing Originator established any
specific credit reserve with respect to the related Obligor;
(u) if such Contract is a Lease, such Lease is a
"triple net lease" under which the Obligor is responsible for
the maintenance, taxes and insurance with respect to the
related Equipment in accordance with general industry
standards applicable to such item of Equipment;
(v) if such Contract is a Vendor Loan, such Vendor
Loan is secured by an Eligible Secondary Contract having an
aggregate Contract Principal Balance for such Eligible
Secondary Contract (determined as of the relevant Cut-Off Date
for such Vendor Loan) not less than the outstanding principal
amount of such Vendor Loan;
(w) such Contract is not an obligation of the United
States of America or an agency, department, or instrumentality
of the United States of America;
(x) such Contract contains provisions customary to
similar financing agreements for Financed Items, which
provisions are sufficient and enforceable (except as may be
limited by applicable Insolvency Laws and the availability of
equitable remedies) to enable the relevant Financing
Originator (or its assignees, including the VFC Trust, the
Depositor and the Trust) to realize against the Financed Items
related thereto (to the extent such Financed Items secure or
support the payment of the Contract);
(y) if the Obligor in respect of such Contract is a
state or local governmental entity or municipality, the
conveyance of such a Contract under and pursuant to the
Transaction Documents does not violate applicable state or
municipal laws or regulations (if any) restricting or
prohibiting the assignment of claims against or obligations of
such Obligor; and
(z) such Contract was originated or acquired by the
applicable Financing Originator in accordance with its
customary policies and procedures as in effect at the time of
such origination or acquisition.
"Eligible Investments" means any of the following:
(i) direct obligations of, and obligations fully
guaranteed by, the United States of America, the Federal Home Loan
Mortgage Corporation (if then rated Aaa by Moody's), the Federal
National Mortgage Association, or any agency or instrumentality of the
United States of America the obligations of which are backed by the
full faith and credit of the United States of America and which are
non-callable;
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(ii) demand and time deposits in, certificates of
deposit of, bankers' acceptances issued by, or federal funds sold by
any depository institution or trust company (including the Trustees or
any Affiliate of the Trustees, acting in their commercial capacity)
incorporated under the laws of the United States of America or any
state thereof or the District of Columbia (or any domestic branch or
agency of a foreign bank) and subject to supervision and examination by
federal and/or state authorities, so long as, at the time of such
investment or contractual commitment providing for such investment, the
commercial paper or other short-term debt obligations of such
depository institution or trust company have been rated at least P-1 or
higher from Moody's and A-1+ from Standard & Poor's; or any other
demand or time deposit or certificate of deposit which is fully insured
by the Federal Deposit Insurance Corporation and which is rated at
least P-1 by Moody's;
(iii) repurchase obligations with respect to any
security described in either clause (i) or (ii) above and entered into
with any institution whose commercial paper is at least rated P-1 from
Moody's and at least A-1+ by Standard & Poor's;
(iv) securities bearing interest or sold at a
discount issued by any corporation incorporated under the laws of the
United States of America or any State thereof which have a credit
rating of at least A2 or P-1 from Moody's and at least AAA from
Standard & Poor's at the time of such investment;
(v) commercial paper (which may be issued by CIT)
having a rating of at least P-1 from Moody's and at least A-1+ from
Standard & Poor's at the time of such investment;
(vi) money market funds which are rated Aaa by
Moody's and at least AAAm or AAAm-G by Standard & Poor's, including
funds which meet such rating requirements for which the Trustees or an
affiliate of the Trustees serves as an investment advisor,
administrator, shareholder servicing agent and/or custodian or
subcustodian, notwithstanding that (i) such Trustee or an affiliate of
such Trustee charges and collects fees and expenses from such funds for
services rendered, (ii) such Trustee charges and collects fees and
expenses for services rendered pursuant to this instrument, and (iii)
services performed for such funds and pursuant to this instrument may
converge at any time. (The Seller and the Servicer specifically
authorize such Trustee or an affiliate of such Trustee to charge and
collect all fees and expenses from such funds for services rendered to
such funds, in addition to any fees and expenses such Trustee may
charge and collect for services rendered pursuant to this instrument);
and
(vii) any other investments approved by the Rating
Agencies.
"Eligible Repurchase Obligations" means repurchase obligations
with respect to any security that is a direct obligation of, or fully guaranteed
by, the United States of America or any agency or instrumentality thereof the
obligations of which are backed by the full faith and credit of the United
States of America, in either case entered into with a depository institution or
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trust company (acting as principal) described in clause (c)(ii) of the
definition of Eligible Investments.
"Eligible Secondary Contract" shall mean each Secondary
Contract
(i) that satisfies all the criteria set forth in the
definition of "Eligible Contract" except clauses (b), (h)
(with respect to ownership by the Financing Originator of the
Contract) and (w) thereof, and except that the term "Obligor"
shall mean "End-User" in all such criteria;
(ii) with respect to which Secondary Contract and the
proceeds thereof the relevant Financing Originator (or, in the
case of VFC Contracts, the VFC Trust, as assignee) has a duly
perfected first priority lien; and
(iii) with respect to which (A) if such Secondary
Contract secures a Vendor Loan constituting a TCC Contract,
the transfer of the TCC Financing Originator's security
interest in such Secondary Contract and the proceeds thereof
to Financial, the transfer of Financial's interest so acquired
to the Depositor, and, if applicable, the Depositor's transfer
of its interest therein to the VFC Trust and the VFC Trust's
transfer of such interest back to the Depositor, is effective
to create in favor of the Depositor a lien therein and such
lien has been duly perfected, or (B) if the Secondary Contract
instead secures a Vendor Loan constituting an Financial
Contract, then the transfer of Financial's security interest
in such Secondary Contract and the proceeds thereof to the
Depositor, and if applicable, the Depositor's transfer of its
interest therein to the VFC Trust and the VFC Trust's transfer
of such interest back to the Depositor, is effective to create
in favor of the Depositor a lien therein and such lien has
been duly perfected.
"Eligible Servicer" means TCC, the Trustees or any other
Person qualified to act as Servicer of the Contracts under applicable federal
and state laws and regulations, which Person services not less than $100,000,000
in outstanding principal amount of equipment financing contracts.
"End-User" shall mean any party that uses the Financed Items
pursuant to an End-User Contract.
"End-User Contract" shall mean any CSA, Secured Note, Lease,
IPA, or other Financing Agreement covering Financed Items originated or acquired
by an Originator.
"Equipment" means with respect to any Contract, the tangible
assets constituting "goods" within the meaning of the UCC, in each case financed
or leased by an Obligor pursuant to a Contract, or which otherwise provide
security for the payment of amounts payable thereunder.
"Equity Certificate" has the meaning specified in the Trust
Agreement.
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"Equity Certificateholder" means the Person in whose name the
Equity Certificate is registered in the Certificate Register.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Event of Default" has the meaning specified in the Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended or supplemented from time to time.
"Excluded Amounts" means (i) any collections on deposit in the
Collection Account or otherwise received by the Servicer on or with respect to
the Contract Pool or related Equipment, which collections are attributable to
any taxes, fees or other charges imposed by any Governmental Authority, (ii) any
collections representing reimbursements of insurance premiums or payments for
services that were not financed by the applicable Originator, (iii) collections
relating to security deposits, and (iv) collections representing Late Charges,
documentation fees, administrative charges or extension fees on any Contract, or
maintenance premiums in respect of related Equipment.
"Excluded Residual Investments" means Residual Investments,
other than Guaranteed Residual Investments.
"FDIC" shall mean the Federal Deposit Insurance Corporation,
or any successor thereto.
"Financed Items" means Equipment, Software, Services and other
property and services that are permitted to be financed under Contracts in
accordance with Customary Policies and Procedures of the applicable Financing
Originator.
"Financial" means Newcourt Financial USA Inc., a Delaware
corporation.
"Financial Contract" means a Contract originated or acquired
by Financial (including without limitation any Contract originated or acquired
by Financial and transferred to the Depositor and by the Depositor to the VFC
Trust prior to the Closing Date) but which is not a TCC Contract.
"Financial Contract Assets" means Contract Assets relating to
Financial Contracts.
"Financing Agreement" means each financing agreement covering
Financed Items, other than a CSA, a Secured Note, a Lease or an IPA.
"Financing Originator" means any of the following as of the
Closing Date: Newcourt Leasing Corporation (f/k/a AT&T Capital Leasing Services,
Inc.); Newcourt Communications Finance Corporation (f/k/a/ AT&T Credit
Corporation); Newcourt Technologies Corporation; and Financial (f/k/a/ AT&T
Systems Leasing).
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"Governmental Authority" means the United States of America,
any state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of, or
pertaining to, government.
"Guaranteed Residual Investment" means each Residual
Investment with respect to which the Financing Originator may look to either the
Vendor or to the related Obligor on an End-User Contract constituting a Lease,
and not just the value of the related Equipment itself, to recover its full
Residual Investment.
"Holder" has the meaning specified in the Indenture.
"Indebtedness" means, with respect to any Person at any date,
without duplication, (a) all indebtedness of such person for borrowed money or
for the deferred purchase price of property or services (other than current
liabilities incurred in the ordinary course of business and payable in
accordance with customary trade practices) or which is evidenced by a note,
bond, debenture or similar instrument, (b) all obligations of such Person under
capital leases, (c) all obligations of such Person in respect of acceptances or
letters of credit issued or created for the account of such Person, (d) all
liabilities secured by any Lien on any property owned by such Person even though
such Person has not assumed or otherwise become liable for the payment thereof,
and (e) obligations of such Person under direct or indirect guaranties in
respect of, and obligations (contingent or otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in clauses (a)
through (d) above.
"Indenture" means the Indenture, dated as of the date hereof,
between the Issuer and the Indenture Trustee, as amended, supplemented or
otherwise modified from time to time.
"Indenture Trustee" means the Person acting as Indenture
Trustee under the Indenture, its successors in interest and any successor
trustee under the Indenture.
"Independent", when used with respect to any specified Person,
means such a Person who (i) is in fact independent of the Issuer, the Depositor
or the Servicer, (ii) is not a director, officer or employee of any Affiliate of
the Issuer, the Depositor or the Servicer, (iii) is not a person related to any
officer or director of the Issuer, the Depositor or the Servicer or any of their
respective Affiliates, (iv) is not a holder (directly or indirectly) of more
than 10% of any voting securities of the Issuer, the Depositor or the Servicer
or any of their respective Affiliates, and (v) is not connected with the Issuer,
the Depositor or the Servicer as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
"Ineligible Contract" has the meaning specified in Section
7.06.
"Initial Class A-1 Principal Amount" means $288,583,600.
"Initial Class A-2a Principal Amount" means $144,291,800.
"Initial Class A-2b Principal Amount" means $144,291,800.
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"Initial Class A-3 Principal Amount" means $187,959,055.
"Initial Class A-4 Principal Amount" means $93,030,239.
"Initial Class B Principal Amount" means $11,391,458.
"Initial Class C Principal Amount" means $15,188,611.
"Initial Class D Principal Amount" means $18,985,762.
"Initial Contract Assets" means those Contract Assets conveyed
to the Trust on the Closing Date.
"Initial Contract Pool Principal Balance" is $759,430,525.
"Initial Contracts" means those Contracts conveyed to the
Trust on the Closing Date.
"Initial Cut-Off Date" means April 1, 2000.
"Initial Principal Amount" means, when used in the context of
a reference to an individual Class of Notes, the initial principal amount
applicable to such Class as defined above.
"Insolvency Event" means, with respect to a specified Person,
(a) the filing of a decree or order for relief by a court having jurisdiction in
the premises in respect of such Person or any substantial part of its property
in an involuntary case under any applicable Insolvency Law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of
its property, or ordering the winding-up or liquidation of such Person's
affairs, and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or (b) the commencement by such Person of a
voluntary case under any applicable Insolvency Law now or hereafter in effect,
or the consent by such Person to the entry of an order for relief in an
involuntary case under such law, taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official for such Person
or for any substantial part of its property; or (c) or the making by such Person
of any general assignment for the benefit of creditors; or (d) the failure by
such Person generally to pay its debts as such debts become due; or (e) the
admission by such Person in writing of its inability generally to pay its debts
when the same become due; or (f) the taking of action by such Person in
furtherance of any of the foregoing.
"Insolvency Laws" means the Bankruptcy Code of the United
States of America and all other applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization,
suspension of payments, or similar debtor relief laws from time to time in
effect affecting the rights of creditors generally.
"Insurance Policy" means, with respect to any Contract, an
insurance policy covering physical damage to or loss of the related Equipment.
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"Insurance Proceeds" means, depending on the context, any
amounts payable or any payments made, to the Servicer (or applicable Financing
Originator) under any Insurance Policy.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time.
"Investment Earnings" means, the investment earnings (net of
losses and investment expenses) on amounts on deposit in the Class A Principal
Account, Class A-2a Funding Account, Collection Account, Note Distribution
Account and the Cash Collateral Account.
"IPA" means each installment payment agreement, including as
applicable, schedules, subschedules, supplements and amendments, pursuant to
which the relevant Originator financed the purchase or acquisition of specified
assets by an Obligor for specified monthly, quarterly, semiannual or annual
payments.
"Issuer" is defined in the preamble hereto.
"Late Charges" means any late payment fees paid by Obligors on
Contracts.
"Lease" means each agreement constituting a "lease" within the
meaning of Section 2A-103 of the UCC, and including, as applicable, schedules,
subschedules, supplements and amendments to a master lease, pursuant to which
the Originator, as lessor, leased specified assets to a Lessee at a specified
monthly, quarterly, semiannual or annual rental.
"Lessee" means, with respect to any Lease, the Obligor with
respect to such Lease.
"LIBOR Determination Date" means (a) for the Accrual Period
from and including the Closing Date to but excluding May 22, 2000, May 3, 2000,
and (b) for each Accrual Period thereafter, the second business day prior to the
commencement of such Accrual Period. For purposes of computing One-Month LIBOR
on a LIBOR Determination Date, a business day is any business day on which
dealings in deposits in United States dollars are transacted in the London
interbank market.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), equity interest, participation interest, preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever,
including, without limitation, any conditional transfer or other title retention
agreement, and any financing lease having substantially the same economic effect
as any of the foregoing.
"Liquidation Expenses" means, with respect to any Defaulted
Contract, the aggregate amount of all out-of-pocket expenses reasonably incurred
by the Servicer (including amounts paid to or expenses incurred by any
subservicer, other than subservicing fees, if any) in accordance with Customary
Policies and Procedures in connection with the repossession, refurbishing and
disposition of any related Equipment, and other out-of-pocket costs related to
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the liquidation of any such Equipment, including reasonable attorneys fees
incurred in the attempted collection of any amount owing pursuant to such
Defaulted Contract, and including amounts determined by the Servicer in its
reasonable discretion as payable in respect of any sales, use, personal property
or other taxes assessed or to be assessed on repossessed or liquidated
Equipment.
"Liquidation Loss" means, with respect to any Defaulted
Contract, the amount, if any, by which (a) the Required Payoff Amount for such
Defaulted Contract as of the date such Contract became a Defaulted Contract
exceeds (b) that portion of the Liquidation Proceeds for such Defaulted Contract
allocated to the Issuer.
"Liquidation Proceeds" means, with respect to a Defaulted
Contract, proceeds from the transfer, lease or re-lease of the related Financed
Items, Insurance Proceeds, and any other recoveries with respect to such
Defaulted Contract and the related Financed Items (including, without
limitation, amounts received pursuant to a Program Agreement), but net of
Liquidation Expenses, Late Charges, amounts payable to a Vendor in respect of
(and in amounts not exceeding) amounts previously paid by such Vendor in respect
of such Contract under Vendor recourse provisions, and amounts, if any, so
received that are required to be refunded to the Obligor on such Contract.
"Material Adverse Effect" means, with respect to any event or
circumstance, a material adverse effect on:
(i) the ability of TCC, Financial any Financing
Originator, the VFC Trust, the Depositor, the Trust or the
Servicer to perform in all material respects its obligations
under this Agreement or any other Transaction Document;
(ii) the validity or enforceability of this
Agreement, any other Transaction Document, or the Contracts,
or the collectibility of the Contracts; or
(iii) the status, existence, perfection, priority or
enforceability of the Trust's interest in the Contracts and
the other Trust Assets.
"Material Modification" means a termination or release
(including pursuant to prepayment), or an amendment, modification or waiver, or
equivalent similar undertaking or agreement, by the Servicer with respect to a
Contract which would not otherwise be permitted under the standards and criteria
set forth in Sections 5.08, 5.09 and/or 5.10 hereof.
"Maturity Date" means, as applicable, the Class A-1 Maturity
Date, Class A-2a Maturity Date, Class A-2b Maturity Date, Class A-3 Maturity
Date, Class A-4 Maturity Date, Class B Maturity Date, Class C Maturity Date, or
Class D Maturity Date.
"Minimum Value Filing Exception" means the variation from the
relevant Financing Originator's normal policies and practices with respect to
filing UCC financing statements against an Obligor describing Equipment which is
the subject of a Contract, in each case as set forth in Exhibit J hereto.
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"Monthly Report" has the meaning specified in Section 9.01.
"Moody's" means Moody's Investors Service, Inc., or any
successor thereto.
"Non-VFC Contract Assets" means the Contract Assets pertaining
to the Non-VFC Contracts.
"Non-VFC Contracts" means Contracts conveyed by Financial to
the Depositor pursuant to the Non-VFC Purchase Agreement, as listed in Schedule
A to the Non-VFC Purchase Agreement.
"Non-VFC Conveyancing Agreement" means the Non-VFC
Conveyancing Agreement, dated as of April 1, 2000, by and among the Financing
Originators and Financial, as the same may be amended, supplemented, restated or
otherwise modified from time to time.
"Non-VFC Purchase Agreement" means the Non-VFC Purchase and
Sale Agreement, dated April 1, 2000, by and among Financial, as the seller, and
the Depositor, as purchaser, as the same may be amended, supplemented, restated
or otherwise modified from time to time.
"Note" means any one of the notes of the Trust of any Class
executed and authenticated in accordance with the Indenture.
"Note Distribution Account" means the account established and
maintained as such pursuant to Section 7.01.
"Note Interest Distributable Amount" means to the extent
applicable, the sum of the Class A-1 Interest Distributable Amount, the Class
A-2a Interest Distributable Amount, the Class A-2b Interest Distributable
Amount, the Class A-3 Interest Distributable Amount, the Class A-4 Interest
Distributable Amount, the Class B Interest Distributable Amount, the Class C
Interest Distributable Amount and the Class D Interest Distributable Amount.
"Note Principal Distributable Amount" means with respect to
any Payment Date, the Total Principal Payment Amount, provided, however, that in
no event may the Note Principal Distributable Amount with respect to any Payment
Date exceed the Principal Amount of the Notes immediately prior to such Payment
Date.
"Note Register" has the meaning given such term in Section
2.04 of the Indenture.
"Noteholder" means any registered holder of a Note.
"Obligor" means, with respect to any Contract, the Person or
Persons obligated to make payments with respect to such Contract, including any
guarantor thereof (and including, with respect to a Contract consisting of a
Vendor Loan, the Vendor obligated in respect of such Vendor Loan).
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"Officer's Certificate" means, with respect to any Person, a
certificate signed by an authorized officer of such Person and delivered to the
party entitled to receipt thereof under any applicable Transaction Document.
"One-Month LIBOR" means, as of any LIBOR Determination Date
and with respect to the related Accrual Period, the rate of interest per annum
equal to the London interbank offered rate for deposits in U.S. dollars having a
maturity of one month (commencing on the first day of such Accrual Period) which
appears on Telerate Page 3750 as of 11:00 a.m., London time, on such LIBOR
Determination Date. If such rate does not appear on Telerate Page 3750,
One-Month LIBOR for such LIBOR Determination Date will be determined on the
basis of the rates at which deposits in U.S. dollars having a maturity of one
month and in a principal amount of not less than U.S. $1,000,000, are offered at
approximately 11:00 a.m., London time, on such LIBOR Determination Date to prime
banks in the London interbank market by the Reference Banks. The Servicer will
request the principal London office of each of the Reference Banks to provide a
quotation of its rate to the Indenture Trustee. If at least two such quotations
are provided, One-Month LIBOR will be the arithmetic mean (rounded upwards, if
necessary, to the nearest .01%) of such offered rates. If fewer than two such
quotations are provided, One-Month LIBOR will be the arithmetic mean (rounded
upwards, if necessary, to the nearest .01%) of the rates quoted at approximately
11:00 a.m., New York City time, on such LIBOR Determination Date to the
Indenture Trustee by three major banks in New York, New York, selected by the
Servicer, for loans in United States dollars to leading European banks having a
maturity of one month and in a principal amount of not less than U.S.
$1,000,000; provided, however, that if the banks selected as aforesaid do not
quote a rate to the Indenture Trustee as described in this sentence, One Month
LIBOR will be the One-Month LIBOR in effect for the immediately preceding
Accrual Period.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel (including internal counsel) for the Depositor or the Servicer
and who shall be reasonably acceptable to the Trust and the Indenture Trustee.
"Originator" means, with respect to each Contract, the party
that is the original lessor or financing party thereunder.
"Outstanding" has the meaning specified in the Indenture.
"Owner Trustee" means Allfirst Financial Center National
Association, not in its individual capacity, but solely as Owner Trustee under
the Trust Agreement, its successors in interest and any successor owner trustee
under the Trust Agreement.
"Payment Date" shall mean the twentieth (20th) day of each
calendar month or, if such twentieth (20th) day is not a Business Day, the next
succeeding Business Day, with the first such Payment Date hereunder being May
22, 2000.
"Paying Agent" means any Person described as such in Section
7.04(b).
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"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Permitted Liens" means
(a) with respect to Contracts in the Contract Pool:
(i) Liens for state, municipal or other local taxes
if such taxes shall not at the time be due and payable or if
the Depositor shall currently be contesting the validity
thereof in good faith by appropriate proceedings and shall
have set aside on its books adequate reserves with respect
thereto;
(ii) Liens in favor of Financial created by a TCC
Financing Originator pursuant to the VFC Conveyancing
Agreement or the Non-VFC Conveyancing Agreement, as the case
may be, or Liens in favor of the Depositor created pursuant to
the Purchase and Sale Agreements or Liens in favor of the VFC
Trust created pursuant to the VFC Pooling Agreement, in each
case transferred to the Trust pursuant hereto;
(iii) Liens in favor of the Trust created pursuant to
this Agreement; and
(iv) Liens in favor of the Indenture Trustee created
pursuant to the Indenture and/or this Agreement; and
(b) with respect to the related Equipment:
(i) materialmen's, warehousemen's, mechanics' and
other liens arising by operation of law in the ordinary course
of business for sums not due;
(ii) Liens for state, municipal or other local taxes
if such taxes shall not at the time be due and payable or if
the Depositor shall currently be contesting the validity
thereof in good faith by appropriate proceedings and shall
have set aside on its books adequate reserves with respect
thereto;
(iii) Liens in favor of Financial created by a TCC
Financing Originator pursuant to the VFC Conveyancing
Agreement or the Non-VFC Conveyancing Agreement, as the case
may be, or Liens in favor of the Depositor created pursuant to
the Purchase and Sale Agreements, in each case transferred to
the Trust pursuant hereto or Liens in favor of the Depositor
created pursuant to the VFC Purchase and Sale Agreement;
(iv) Liens in favor of the Trust created pursuant to
this Agreement;
(v) Liens in favor of an Originator which have been
transferred to the applicable Financing Originator and
pursuant to the Purchase and Sale Agreements by such Financing
Originator to the Depositor (through Financial and the VFC
Conveyancing Agreement or the Non-VFC Conveyancing Agreement,
as
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the case may be, in the case of TCC Financing Originators,
and through Financial, the Depositor and the VFC Trust and the
VFC Assignment in the case of the VFC Contracts) and in each
case transferred to the Trust pursuant hereto;
(vi) Liens in favor of the Indenture Trustee crated
pursuant to the Indenture and/or this Agreement;
(vii) (A) interests in favor of Dell Financial
Services, L.P. ("DFS") which are subject to the prior payment
of all Obligor obligations in respect of Scheduled Payments on
the related Contract and which have been transferred by DFS
along with the related Contract to its limited purpose
affiliate, DFS-SPV, L.P., and (B) interests in favor of a
Vendor which are subject to the prior payment of all Obligor
obligations in respect of Scheduled Payments on the related
Contract; and
(viii) Liens granted by the End-Users which are
subordinated to the interest of the Trust in such Equipment.
"Person" means any individual, corporation, estate,
partnership, limited liability company, joint venture, association, joint stock
company, trust (including any beneficiary thereof), unincorporated organization
or government or any agency or political subdivision thereof.
"Plan" means an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code as to which the Servicer or any member of the Controlled Group
may have any liability.
"Pledged Revenues" means (i) all Scheduled Payments on the
Contracts received on or after the Cut-Off Date (excluding the Excluded
Amounts); (ii) any Prepayments received on the Contracts on or after the Cut-Off
Date (other than (a) in the case of a Lease, any portion thereof allocated to
the Depositor, or (b) in the case of a Prepaid Contract for which a substitution
has been made in accordance with Section 2.04 of this Agreement, that portion
thereof to which the Depositor is entitled pursuant to Section 2.04); (iii) the
Purchase Amount of any Contracts purchased by Financial in accordance with
Section 7.06 of this Agreement (other than any portion thereof attributable in
the case of a Lease to the Excluded Residual Investment of the related
Equipment); (iv) the amount paid by Financial or the Depositor to purchase the
Contracts pursuant to Section 7.08 of this Agreement; (v) that portion of the
Liquidation Proceeds received in respect of any Contracts and the disposition of
the related Equipment on or after the Cut-Off Date and allocated to the Trust;
(vi) any Investment Earnings on the investment of amounts credited to the Class
A-2a Funding Account, the Collection Account and the Note Distribution Account;
and (vii) amounts on deposit in the Class A Principal Account (including any
Investment Earnings thereon). Pledged Revenues shall not include any amounts
received with respect to any Excluded Residual Investment.
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"Pooling Agreement" means this Pooling and Servicing
Agreement, as amended, restated, supplemented or otherwise modified from time to
time in accordance with the terms hereof.
"Prepaid Contract" means any Contract that has terminated or
been prepaid in full prior to its scheduled expiration date (including because
of a Casualty Loss), other than a Defaulted Contract.
"Prepayment" means with respect to any Collection Period for
any Contract, a partial or full prepayment of amounts due and owing under such
Contract.
"Principal Amount" means, with respect to a Class of Notes,
the aggregate Initial Principal Amount thereof reduced by (i) the aggregate
amount of any payments applied in reduction of such principal amount, (ii) the
aggregate amount of any payments then on deposit in the Note Distribution
Account, if any, for such Class of Notes established in accordance with the
Indenture and to be applied in reduction of such principal amount in accordance
with such Indenture and (iii) in the case of the Class A-2b Notes only, the net
principal losses on amounts on deposit in the Class A-2a Funding Account applied
in reduction of such principal amount pursuant to Section 7.05(f).
"Principal Deficiency Amount" means, with respect to any
Payment Date, the excess, if any, of (i) the Principal Amount of the Notes
(after giving effect to all distributions of principal from the Available
Pledged Revenues (determined without regard to clause (iv) of the definition
thereof) on such Payment Date), over (ii) the sum of, as of the related
Accounting Date, (x) the Contract Pool Principal Balance and (y) amounts on
deposit in the Class A Principal Account and the Class A-2a Funding Account (in
each case exclusive of Investment Earnings thereon).
"Program Agreement" means each vendor finance program
agreement pursuant to which End-User Contracts originated by a Vendor are
assigned to the applicable Financing Originator.
"Prospectus" has the meaning given such term in the
Underwriting Agreement.
"Purchase Amount" means, with respect to Ineligible Contracts,
on any date of determination, the aggregate Required Payoff Amount for such
Ineligible Contracts as of the related Accounting Date.
"Purchase and Sale Agreements" means, collectively, the
Non-VFC Purchase Agreement, the Substitute VFC Purchase Agreement and the VFC
Purchase Agreement.
"Purchase Price" means, with respect to any Contract conveyed
on the Closing Date (or any Subsequent Transfer Date, as applicable), an amount
equal to the Contract Principal Balance of such Contract as of the applicable
Cut-Off Date.
"Qualified Eligible Investments" means Eligible Investments
acquired by the Indenture Trustee in its name and in its capacity as Indenture
Trustee, which are held by the
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Indenture Trustee in the Trust Accounts and with respect to which (a) the
Indenture Trustee has noted its interest therein on its books and records, and
(b) the Indenture Trustee has purchased such investments for value without
notice of any adverse claim thereto (and, if such investments are securities or
other financial assets or interests therein, within the meaning of Section 8-102
of the UCC as enacted in the State of New York, without acting in collusion with
a securities intermediary in violating such securities intermediary's
obligations to entitlement holders in such assets, under Section 8-504 of such
UCC, to maintain a sufficient quantity of such assets in favor of such
entitlement holders), and (c) either (i) such investments are in the possession
of the Indenture Trustee, or (ii) such investments, (A) if certificated
securities and in bearer form, have been delivered to the Indenture Trustee, or
in registered form, have been delivered to the Indenture Trustee and either
registered by the issuer in the name of the Indenture Trustee or endorsed by
effective endorsement to the Indenture Trustee or in blank; (B) if
uncertificated securities, the ownership of which has been registered to the
Indenture Trustee on the books of the issuer thereof (or another person, other
than a securities intermediary, either becomes the registered owner of the
uncertified security on behalf of the Indenture Trustee or, having previously
become the registered owner, acknowledges that it holds for the Indenture
Trustee); or (C) if securities entitlements (within the meaning of Section 8-102
of the UCC as enacted in the State of New York) representing interests in
securities or other financial assets (or interests therein) held by a securities
intermediary (within the meaning of said Section 8-102), a securities
intermediary indicates by book entry that a security or other financial asset
has been credited to the Indenture Trustee's securities account with such
securities intermediary. Any such Qualified Eligible Investment may be purchased
by or through the Indenture Trustee or any of its Affiliates.
"Qualified Institution" means (a) the corporate trust
department of the Indenture Trustee or (b) a depository institution organized
under the laws of the United States of America or any one of the states thereof
or the District of Columbia (or any domestic branch of a foreign bank), (i) (A)
which has (or the parent corporation of which has) either (1) a long-term
unsecured debt rating acceptable to the Rating Agencies or (2) a short-term
unsecured debt rating or certificate of deposit rating acceptable to the Rating
Agencies or (B) which is otherwise acceptable to the Rating Agencies and (ii)
whose deposits are insured by the FDIC.
"Rating Agency" as of any date means each of the nationally
recognized statistical rating organizations requested by the Depositor to
provide ratings on the Notes which is rating the Notes on such date.
"Rating Agency Condition" means, with respect to any action or
series of related actions or proposed transaction or series of related proposed
transactions, that each Rating Agency shall have notified the Depositor and the
Owner Trustee and the Indenture Trustee in writing that such action or series of
related actions or the consummation of such proposed transaction or series of
related transactions will not result in a Ratings Effect.
"Ratings Effect" means, with respect to any action or series
of related actions or proposed transaction or series of related proposed
transactions, a reduction or withdrawal of the rating of any outstanding Class
with respect to which a Rating Agency has previously issued a rating as a result
of such action or series of related actions or the consummation of such proposed
transaction or series of related transactions.
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"Reallocated Principal" means, with respect to any Payment
Date, an amount equal to (a) the Total Principal Payment Amount, less (b) the
sum of the Class A Principal Payment Amount, the Class B Principal Payment
Amount, the Class C Principal Payment Amount and the Class D Principal Payment
Amount.
"Record Date" means, with respect to any Payment Date, the
Business Day immediately preceding such Payment Date (so long as the Notes are
in book-entry form) or the last day of the prior calendar month (if certificated
Notes have been issued).
"Reference Banks" means four leading banks, selected by the
Servicer and identified to the Indenture Trustee, engaged in transactions in
Eurodollar deposits in the international Eurocurrency market and having an
established place of business in London.
"Related Collection Period Pledged Revenues" means, with
respect to any Payment Date, the amount of Pledged Revenues in the Collection
Account as of the Deposit Date which were received by the Servicer during the
related Collection Period, including all Liquidation Proceeds (other than in
respect of Excluded Residual Investment) so received but excluding any Purchase
Amounts.
"Replaced Assets" has the meaning assigned such term in
Section 2.04.
"Replaced Contracts" has the meaning assigned such term in
Section 2.04.
"Reportable Event" means a reportable event as defined in
Section 4043 of ERISA and the regulations issued under such section, with
respect to a Plan, excluding, however, such events as to which the PBGC has by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event, provided, however, that
a failure to meet the minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance of
any such waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.
"Required Cash Collateral Amount" means, (i) with respect to
any Payment Date on or prior to the Payment Date occurring in April 2001, an
amount equal to $41,768,679, and (ii) with respect to any Payment Date
thereafter, an amount equal to the greater of (a) the sum of (1) 6.60% of the
Contract Pool Principal Balance as of the related Accounting Date, plus (2) the
excess, if any of (A) the Aggregate Principal Amount of the Notes (after giving
effect to all distributions of principal on such Payment Date) over (B) the sum
of, as of the related Accounting Date, (x) the Contract Pool Principal Balance
and (y) amounts on deposit in the Class A Principal Account and the Class A-2a
Funding Account (in each case exclusive of Investment Earnings thereon), and (b)
$9,492,882; provided, that in no event will the Required Cash Collateral Amount
exceed the Aggregate Principal Amount of the Notes as of any date of
determination.
"Required Holders" means (i) prior to the payment in full of
the Class A Notes Outstanding, Class A-1 Noteholders, Class A-2a Noteholders,
Class A-2b Noteholders, Class A-3 Noteholders, and/or Class A-4 Noteholders
holding Class A-1 Notes, Class A-2a Notes, Class
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A-2b Notes, Class A-3 Notes, and/or Class A-4 Notes evidencing more than 66 2/3%
of the Aggregate Principal Amount of all Class A Notes Outstanding, (ii) from
and after the payment in full of the Class A Notes Outstanding, Holders of Class
B Notes holding Class B Notes evidencing more than 66 2/3% of the Aggregate
Principal Amount of all Class B Notes Outstanding, (iii) from and after the
payment in full of the Class B Notes Outstanding, Holders of Class C Notes
holding Class C Notes evidencing more than 66 2/3% of the Aggregate Principal
Amount of all Class C Notes Outstanding, and (iv) from and after the payment in
full of the Class C Notes Outstanding, Holders of Class D Notes holding Class D
Notes evidencing more than 66 2/3% of the Aggregate Principal Amount of all
Class D Notes Outstanding.
"Required Payoff Amount" means, with respect to any Collection
Period for a Contract, the sum of (i) the Scheduled Payment due in such
Collection Period, together with any Scheduled Payments due in prior Collection
Periods but not yet received, plus (ii) the Contract Principal Balance of such
Contract (after taking into account the Scheduled Payment due in such Collection
Period whether or not actually received).
"Requirements of Law" for any Person means the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
order or determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether Federal, state or local (including, without limitation, usury laws, the
Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of
Governors of the Federal Reserve System).
"Residual Investment" means, with respect to certain Leases,
any funds that the Financing Originator shall have advanced against all or any
portion of the anticipated residual value of the leased Equipment upon the
expiration of such Lease in accordance with its terms, and in excess of the
discounted present value of the rental payments due under such Lease.
"Responsible Officer" means, with respect to the Owner
Trustee, any officer in its Corporate Trust Administration Department (or any
similar group of a successor Owner Trustee) who has primary responsibility for
administering the Trust or the Trust Agreement, or to whom a corporate trust
matter is referred because of knowledge of, familiarity with, and authority to
act with respect to a particular matter.
"Scheduled Payment" means, with respect to any Contract, the
monthly or quarterly or semi-annual or annual rent or financing (whether
principal or principal and interest) payment or other payment scheduled to be
made by the related Obligor under the terms of such Contract (or, if applicable,
from a Vendor or Obligor with respect to any Guaranteed Residual Investment); it
being understood that Scheduled Payments do not include any Excluded Amount or
Excluded Residual Investment, but does include Guaranteed Residual Investment.
"Schedule of Contracts" means the schedule of Contracts which
are conveyed to the Trust pursuant to this Agreement and the Transfer Agreement,
executed and delivered on the Closing Date, which schedule shall identify by any
reasonable means or designation the applicable Financing Originator with respect
to each Contract identified in such Schedule, and
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which includes the Contracts listed on Exhibit C hereto. Such Schedule shall be
supplemented from time to time (a) by each subsequent Substitution Schedule of
Contracts with respect to each Substitution Transfer Agreement and related
Substitute Contracts, which Schedules of Contracts shall be deemed incorporated
and made a part of the original Schedule of Contracts on Exhibit C hereto; and
(b) by the Servicer from time to time to reflect the release by and removal from
the Trust Assets of (i) Contracts released in connection with (A) in respect of
a Contract becoming a Prepaid Contract in accordance herewith or having its
final Scheduled Payment paid in full in accordance with the Contract, or (B) in
respect of a repurchase from the Trust through payment of a Purchase Amount, and
(ii) Replaced Contracts. The comprehensive Schedule of Contracts is to be
maintained by the Servicer (with copies thereof, as the same shall be
supplemented or amended as described above, to be provided promptly to the
Trust). With respect to the Transfer Agreement (or Substitution Transfer
Agreement, as applicable), "Schedule of Contracts" shall mean the schedule
attached thereto identifying the Contracts being conveyed thereby.
"Schedule of Representations" means the Schedule of
Representations and Warranties set forth on Exhibit G hereto.
"Secondary Contract" shall mean, with respect to a Vendor
Loan, each End-User Contract securing such Vendor Loan.
"Secured Note" means each promissory note with a related
security interest evidenced by written agreement, pursuant to which the purchase
of specified assets by an Obligor or End-User is financed for specified monthly,
quarterly, semiannual or annual payments.
"Securities" means the Notes and the Certificate, or any of
them.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Securityholders" means the Holders of the Notes or the Equity
Certificate.
"Servicer" means initially TCC, until any Successor Servicer
is appointed pursuant to Article VIII hereof, and thereafter, means the
Successor Servicer so appointed.
"Servicer Advance" means, with respect to any Payment Date,
the amounts, if any, deposited by the Servicer in the Collection Account for
such Payment Date in respect of Scheduled Payments pursuant to Section 5.14
hereof.
"Servicer Default" has the meaning given such term in Section
8.01.
"Servicer Letter of Credit" has the meaning given such term in
Section 7.01(b).
"Services" means, in connection with the financing of Software
by an Originator, the support and consulting services related to such Software,
the procurement of which was also financed by such Originator pursuant to a
Contract.
"Servicing Fee" has the meaning specified in Section 5.18
hereof.
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"Servicing Fee Percentage" means 0.75%.
"Servicing Officer" means any officer of the Servicer involved
in, or responsible for, the administration and servicing of Contracts.
"Servicing Standard" means, with respect to the servicing and
collection activities of the Servicer concerning the Contract Assets, the
conduct of such activities with reasonable care, using that degree of skill and
attention that the relevant Financing Originator for such Contract Assets
exercises with respect to all comparable contracts and related assets that it
services for itself or others, and in accordance with Customary Policies and
Procedures and applicable law.
"Servicing Transfer" is defined in Section 8.02(b).
"Software" means the computer software programs financed or
leased by an Obligor pursuant to a Contract.
"Solvent" means, as to any Person at any time, that (a) the
fair value of the Property of such Person is greater than the amount of such
Person's liabilities (including disputed, contingent and unliquidated
liabilities) as such value is established and liabilities evaluated for purposes
of Section 101(31) of the Bankruptcy Code; (b) the present fair saleable value
of the Property of such Person in an orderly liquidation of such Person is not
less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured; (c) such Person is able
to realize upon its Property and pay its debts and other liabilities (including
disputed, contingent and unliquidated liabilities) as they mature in the normal
course of business; (d) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person's ability to pay as
such debts and liabilities mature; and (e) such Person is not engaged in
business or a transaction, and is not about to engage in a business or a
transaction, for which such Person's property would constitute unreasonably
small capital.
"Standard & Poor's" means Standard & Poor's Ratings Service, a
division of The McGraw Hill Companies, or any successor thereto.
"Subsidiary" means with respect to a Person, any corporation
or other entity of which securities or other ownership interests (whether
directly or indirectly in connection with contract rights) having ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions are at the time directly or indirectly owned by
such Person.
"Substitute Contract" means any Contract conveyed, assigned
and transferred by the Depositor or Financial to the Trust pursuant to Section
2.04.
"Substitute Contract Assets" means Contract Assets relating to
Substitute Contracts.
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"Substitute Contract Qualification Conditions" means, with
respect to any Substitute Contract being transferred to the Trust pursuant to
Section 2.04, each of the following:
(1) the accuracy of each of the following statements
as of the related Cut-Off Date for such Contract:
(a) the Contract Principal Balance of such
Substitute Contract is not less than that of the
related Replaced Contract[s];
(b) no adverse selection procedure shall
have been employed in the selection of such
Substitute Contract from the Financing Originator's
portfolio;
(c) each such Substitute Contract satisfied
the criteria set forth in the definition of Eligible
Contract herein; and
(d) if the Replaced Contract for which such
Substitute Contract is being substituted was a TCC
Contract, then such Substitute Contract is itself a
TCC Contract, and if such Replaced Contract is an
Financial Contract, then such Substitute Contract is
itself an Financial Contract;
(2) with respect to any such Substitute Contract
which is replacing a Replaced Contract of the type described
in clause (a) of the definition of Substitution Event (a
"Type"), the condition that after giving effect to such
transfer, the Contract Pool Principal Balance of all
Substitute Contracts transferred to the Trust since the
Closing Date in respect of Replaced Contracts of the same Type
shall not exceed 10% of the Contract Pool Principal Balance as
of the Initial Cut-Off Date; and
(3) with respect to any such Substitute Contract
which is replacing a Replaced Contract of the type described
in clause (a) of the definition of Substitution Event, the
condition that the related Substitute Transfer Date is after
the date on which the Principal Amount of the Class A-1 Notes
has been reduced to zero.
"Substitute Transferred Assets" has the meaning assigned such
term in Section 2.04.
"Substitute VFC Purchase Agreement" means the Substitute VFC
Purchase and Sale Agreement, dated as of April 1, 2000, among Financial and the
Depositor, as the same may be amended, supplemented, restated or otherwise
modified from time to time.
"Substitution Assignment Agreement" means, with respect to any
Substitute Contracts, the agreement between Financial and the Depositor pursuant
to which Financial transfers the identified Substitute Contracts to the
Depositor pursuant to the Non-VFC Purchase Agreement or the Substitute VFC
Purchase Agreement, as the case may be.
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"Substitution Cut-Off Date" means the date specified as such
for the relevant Substitute Contracts, in the related Substitution Transfer
Agreement.
"Substitution Event" means, with respect to any transfer of a
related Substitute Contract to the Trust under Section 2.04, the occurrence of
any of the following: (a) one or more Contracts identified in the related
Substitution Notice as being an intended Replaced Contract with respect to such
Substitute Contract, has become a Defaulted Contract, (b) one or more Contracts
identified in the related Substitution Notice as being an intended Replaced
Contract with respect to such Substitute Contract, has been subjected to a
Material Modification, (c) one or more Contracts identified in the related
Substitution Notice as being an intended Replaced Contract with respect to such
Substitute Contract, has become an Ineligible Contract, or (d) one or more
Contracts identified in the related Substitution Notice as being an intended
Replaced Contract with respect to such Substitute Contract, has become a Prepaid
Contract and the Trust has not yet received the related Prepayment.
"Substitution Notice" means, with respect to any transfer of
Substitute Contracts to the Trust pursuant to Section 2.04 (and the applicable
Financing Originator's corresponding conveyance and assignment of such
Substitute Contracts), a notice, which shall be given at least five days prior
to the related Substitution Transfer Date, identifying the Substitute Contracts
to be transferred, the Contract Principal Balance of such Substitute Contracts
and the related Substitution Event (with respect to an identified Contract or
Contracts then in the Contract Pool, which will upon such substitution become a
Replaced Contract) to which such Substitute Contract relates, with such notice
to be signed both by the Depositor and the applicable Financing Originator[s].
"Substitution Schedule of Contracts" means a schedule or list,
substantially in the form of the initial Schedule of Contracts delivered on the
Closing Date, but listing each Substitute Contract being transferred to the
Trust pursuant to a related Substitution Transfer Agreement, as well as the
related Replaced Contracts being removed from the existing Contract Pool by
virtue of such substitution.
"Substitution Transfer Agreement" means the agreement
identified as such in Section 2.04(b) hereof.
"Substitution Transfer Date" means any date on which
Substitute Contracts are transferred to the Trust.
"Successor Servicer" has the meaning given such term in
Section 8.02(b).
"Tax Opinion" means, with respect to any action, an Opinion of
Counsel to the effect that, for federal income tax purposes, (i) following such
action the Trust will not be deemed to be an association (or publicly traded
partnership) taxable as a corporation, (ii) following such action the Trust will
be disregarded as a separate entity from the Depositor, and (iii) such action
will not affect the tax characterization as debt of Notes of any outstanding
Class issued by the Trust for which an Opinion of Counsel has been provided that
such Notes are debt.
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"TCC" has the meaning assigned in the preamble hereto.
"TCC Assignment" has the meaning given such term in the VFC
Conveyancing Agreement.
"TCC Assignment Date" has the meaning given such term in the
VFC Conveyancing Agreement.
"TCC Contract" has the meaning given such term in the VFC
Conveyancing Agreement.
"TCC Contract Assets" has the meaning given such term in the
VFC Conveyancing Agreement.
"TCC Contract File" has the meaning given such term in the VFC
Conveyancing Agreement.
"TCC Financing Originator" means the Financing Originators
(other than Financial) in each case in the capacity of a TCC Financing
Originator party to the VFC Conveying Agreement or the Non-VFC Conveying
Agreement, as the case may be, with Financial.
"Telerate Page 3750" means the display page so designated on
the Telerate Service (or such other page as may replace that page on that
service for the purpose of displaying comparable notes or prices).
"Total Principal Payment Amount" means, with respect to any
Payment Date, the difference between (a) the aggregate Principal Amount of all
Classes of Notes immediately prior to that Payment Date and (b) the sum of (x)
the Contract Pool Principal Balance as of the related Accounting Date and (y)
the amount on deposit in the Class A-2a Funding Account (exclusive of Investment
Earnings thereon); provided, that the amount referred to in clause (b) (x) shall
be deemed to be zero on any Payment Date on which the Contract Pool Principal
Balance is less than $10,000,000.
"Transaction Documents" means this Agreement, the Transfer
Agreement, any Substitution Transfer Agreement, the VFC Conveyancing Agreement,
the VFC Purchase Agreement, the VFC Assignment, the VFC Pooling Agreement, any
TCC Assignment, the Non-VFC Conveyancing Agreement, the Non-VFC Purchase
Agreement, the Substitution VFC Purchase Agreement, the Trust Agreement, the
Administration Agreement, the Indenture, the Cash Collateral Account Agreement,
the Underwriting Agreement, the Class A-2 Swap Agreement and the Class A-3 Swap
Agreement and any other agreements contemplated herein or therein.
"Transfer Agreement" means, the Transfer Agreement dated the
Closing Date between the Depositor and the Trust pursuant to which the Depositor
conveys and assigns the Contracts and other related Transferred Assets to the
Trust, in the form attached hereto as Exhibit A.
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"Transferred Assets" means with respect to any Contracts
(including Substitute Contracts) conveyed or being conveyed to the Trust
pursuant to this Agreement, all right and interest of the Depositor in, to and
under the following:
(i) such Contracts and other related Contract Assets
(subject to the proviso below);
(ii) related rights of the Depositor under the
Purchase and Sale Agreements and Substitution Assignment
Agreement (if any) and the VFC Assignment, including, without
limitation, in respect of the obligation of Financial to
repurchase or substitute for such Contracts under certain
circumstances as specified therein; and
(iii) rights under the Transfer Agreement and each
Substitution Transfer Agreement; and
(iv) all income from and proceeds of the foregoing;
provided, that Transferred Assets shall not include any title to or ownership
interest in the Equipment related to such Contracts (although security interests
in such Equipment established pursuant to the related Contract, and proceeds
thereof, shall constitute Transferred Assets), and provided further, that the
security interest granted by the Depositor pursuant to Section 2.01 hereof in
related Equipment owned by it, shall constitute part of Transferred Assets.
"Trust" means the trust governed by the Trust Agreement, the
assets and property of which consists of the Trust Assets.
"Trust Accounts" means, collectively, the Collection Account,
the Class A Principal Account, the Class A-2a Funding Account, the Cash
Collateral Account and the Note Distribution Account, or any of them.
"Trust Account Property" means the Trust Accounts, all amounts
and investments held from time to time in any Trust Account (whether in the form
of deposit accounts, physical property, book-entry securities, uncertificated
securities or otherwise), and all proceeds of the foregoing.
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated as of April 1, 2000, between the Depositor and the Owner
Trustee, as amended, restated, supplemented or otherwise modified from time to
time.
"Trust Assets" has the meaning given to such term in the Trust
Agreement.
"Trust Estate" shall have the meaning specified in the Trust
Agreement.
"Trustees" means the Owner Trustee and the Indenture Trustee,
or any of them individually as the context may require.
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"UCC" means the Uniform Commercial Code as enacted from time
to time in the State of New York.
"Uncollectible Advance" means with respect to any
Determination Date and any Contract, the amount, if any, advanced by the
Servicer pursuant to Section 5.14 which the Servicer has as of such
Determination Date determined in good faith will not be ultimately recoverable
by the Servicer.
"Underwriting Agreement" means the Underwriting Agreement,
dated May 3, 2000 among First Union Securities, Inc. (as an underwriter
thereunder and as representative of the underwriters) and the Depositor.
"Unfunded Loss Amount" means, with respect to any Payment
Date, the excess, if any, of (i) the remainder, if any, of (a) the Aggregate
Principal Amount of all of the Notes (prior to giving effect to the payment of
principal on the Notes on such Payment Date) minus (b) the lesser of (1) the
Contract Pool Principal Balance as of the related Accounting Date for the
preceding Payment Date, minus the Contract Pool Principal Balance as of the
related Accounting Date for such Payment Date, or (2) (A) the Related Collection
Period Pledged Revenue remaining after the payment of amounts owing to the
Servicer and the payment of all interest due on the Notes on such Payment Date,
plus (B) the amount of any withdrawal from the Cash Collateral Account for the
payment of principal in respect of Notes on such Payment Date over (ii) the sum
of, as of the related Accounting Date, the Contract Pool Principal Balance and
the amounts on deposit in the Class A-2a Funding Account and the Class A
Principal Account (in each case exclusive of Investment Earnings thereon).
"Unreimbursed Servicer Advances" means, at any time, the
amount of all previous Servicer Advances (or portions thereof) as to which the
Servicer has not been reimbursed as of such time pursuant to Section 7.05 and
which the Servicer has determined in its sole discretion are Uncollectible
Advances, and with respect to which the Servicer has given a written
certification to such effect to the Trust (which certification may take the form
of an entry on a Monthly Report identifying Unreimbursed Servicer Advances).
"United States" means the United States of America.
"Vehicle" means any motor vehicle, the transfer of interests
in which is governed by a state certificate of title or registry system.
"Vendor" means, with respect to a Contract, the equipment
manufacturer, dealer or distributor, or software licensor or distributor, or
other Person that provided financing under such Contract in connection with the
acquisition or use by an End-User of such party's Equipment, Software, Services
or other products.
"Vendor Agreements" means the collective reference to Vendor
Assignments and Program Agreements.
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"Vendor Assignment" means each assignment agreement pursuant
to which an individual End-User Contract originated by a Vendor is assigned by
such Vendor to the Financing Originator.
"Vendor Guarantee" means the irrevocable obligation of a
Vendor to pay to the Financing Originator the aggregate outstanding principal
amount of a Contract which has been canceled by the related Obligor pursuant to
the terms of such Contract.
"Vendor Loan" means a limited recourse loan agreement payable
by a Vendor and secured by the Vendor's interest in Secondary Contracts and by
the Equipment, if any, related thereto.
"VFC Assignment" means the Release and Assignment instrument
dated the Closing Date, in the form attached hereto as Exhibit B, executed by
the VFC Trust conveying, assigning and releasing the VFC Contract Assets to the
Depositor.
"VFCC" means Variable Funding Capital Corporation.
"VFC Contract Assets" means the Contract Assets pertaining to
the VFC Contracts.
"VFC Contracts" means Contracts conveyed by the VFC Trust to
the Depositor pursuant to the VFC Assignment, as listed in the Schedule of
Contracts attached to the VFC Assignment.
"VFC Conveyancing Agreement" means the Conveyancing Agreement
dated as of March 2, 1999 among the TCC Financing Originators and Financial, as
the same may be amended, supplemented, restated or otherwise modified from time
to time.
"VFC Trust" means the Newcourt Equipment Trust -- VFC Series
created and existing pursuant to the Trust Agreement dated as of February 25,
1999 by and between the Depositor and the Bank of New York (Delaware), as Owner
Trustee.
"VFC Pooling Agreement" means the Pooling and Servicing
Agreement dated as of March 2, 1999 by and among the VFC Trust, the Depositor,
and TCC
"VFC Purchase Agreement" means the Sale and Contribution
Agreement dated as of March 2, 1999 by and among Financial, TCC and the
Depositor.
"Vice President" of any Person means any vice president of
such Person, whether or not designated by a number or words before or after the
title "Vice President," who is a duly elected officer of such Person.
"Voting Power" means, with respect to any outstanding
membership interest of the Depositor, the power (expressed as a percentage)
represented by such membership interest of the aggregate voting power of all
outstanding membership interests of the Depositor having ordinary voting power,
including the power to vote for election of members of the Board of
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Directors (and, if any class thereof has power to designate members
of the Board of Directors or any special committee thereof, the power so to
designate).
Section 1.02. Usage of Terms. With respect to all terms in
this Agreement, the singular includes the plural and the plural the singular;
words importing any gender include the other genders; references to "writing"
include printing, typing, lithography and other means of reproducing words in a
visible form; references to agreements and other contractual instruments include
all amendments, modifications and supplements thereto or any changes therein
entered into in accordance with their respective terms and not prohibited by
this Agreement; references to Persons include their permitted successors and
assigns; and the term "including" means "including without limitation."
Section 1.03. Section References. All section references,
unless otherwise indicated, shall be to Sections in this Agreement.
Section 1.04. Accounting Terms. All accounting terms used but
not specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
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ARTICLE II
FUNDINGS OF TRUST; TRANSFERS OF CONTRACTS
Section 2.01. Creation and Funding of Trust; Transfer of Transferred Assets
to Trust. (a) The Trust has been created pursuant to the terms and conditions of
an initial trust agreement, and upon the execution and delivery of the Trust
Agreement and the filing by the Owner Trustee of an appropriately completed
Certificate of Trust under the Business Trust Statute. The Depositor, as settlor
of the Trust, shall fund and convey assets to the Trust pursuant to the terms
and provisions hereof. The Trust shall be administered pursuant to the
provisions of this Agreement, the Administration Agreement and the Trust
Agreement for the benefit of the Noteholders and the Equity Certificateholder.
Each of the Owner Trustee and the Administrator (as defined in the
Administration Agreement) is hereby specifically recognized by the parties
hereto as empowered to conduct business dealings on behalf of the Trust in
accordance with the terms hereof and of the Trust Agreement and Administration
Agreement.
(b) Subject to the terms and conditions set forth herein, on the
Closing Date, the Depositor shall, in consideration of the purchase price of the
Contracts and the related Transferred Assets and the retention of the Equity
Certificate, transfer, assign, set over and otherwise convey to the Trust by
execution of the Transfer Agreement, without recourse (other than as expressly
provided herein), (i) all the right, title and interest of the Depositor in and
to the Contracts and the related Transferred Assets identified in such Transfer
Agreement, and (ii) all income from and proceeds of the foregoing. The "purchase
price" for the Contracts and the related Transferred Assets shall be an amount
equal to $758,233,068.62. Such purchase price shall be payable in immediately
available funds on the Closing Date.
(c) The parties hereto hereby agree and acknowledge that title to or
ownership of any related Equipment shall not be transferred to the Trust upon
such conveyance and that the Depositor shall retain its ownership interest (to
the extent the same has been so conveyed to the Depositor pursuant to the VFC
Purchase Agreement, the Non-VFC Purchase Agreement, the Substitute VFC Purchase
Agreement and the VFC Assignment) in such Equipment (provided, that the parties
agree and intend that any mere security interest, as opposed to title or
ownership interest, in the related Equipment which secures the Contract pursuant
to the terms thereof, is being assigned and conveyed as part of the Transferred
Assets in accordance with the definition thereof). The Depositor and the Trust
further intend and agree that, except as described in the preceding sentence
with respect to ownership interests in related Equipment, any such transfer is
intended to be a conveyance and transfer of ownership of the Contracts and the
related Transferred Assets (or Substitute Transferred Assets conveyed as
described in Section 2.04 below) and that such Contracts and the related
Transferred Assets shall not be part of the Depositor's estate in the event of
the filing of a bankruptcy petition by or against the Depositor under any
bankruptcy law. In the event, however, that notwithstanding such intent and
agreement, a transfer and assignment contemplated hereby and in the Transfer
Agreement (or Substitution Transfer Agreement, as applicable) is determined not
to be a conveyance of ownership, the Depositor hereby grants to the Trust a
first priority perfected security interest in (i) such Contracts and the related
Transferred Assets identified in such Transfer Agreement, and
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(ii) all income from and proceeds of the foregoing, and this Agreement and
the Transfer Agreement (or Substitution Transfer Agreement, as applicable),
collectively, shall constitute a security agreement under applicable law,
securing the related obligations of the Trust to the Noteholder and the Equity
Certificateholder, in the order and priorities, and subject to the other terms
and conditions of, this Agreement and the other Transaction Documents, together
with such other obligations or interests as may arise hereunder and thereunder
with respect to such Contracts and the related Transferred Assets in favor of
the parties thereto.
(d) In furtherance of and not in limitation of any of the foregoing,
the Depositor with respect to each item of Equipment owned by it as described
above, by execution and delivery of this Agreement and the Transfer Agreement
(or Substitution Transfer Agreement, as applicable), hereby and thereby on and
as of the Closing Date (or Substitution Transfer Date, as applicable) grants to
the Trust and the Indenture Trustee a first priority perfected security interest
in such item of owned Equipment, securing in each case an amount payable by the
Trust in respect of the Notes corresponding to the Contract Principal Balance
from time to time of the related Contract; it being understood, however, that
(i) recourse to such Equipment in realization of the benefits of such security
interest shall only occur if the related Contract has become a Defaulted
Contract, and (ii) the application of Liquidation Proceeds realized therefrom
shall be governed in accordance with the provisions hereof generally applicable
to such Pledged Revenue and allocation in accordance with the Allocation
Criteria.
Section 2.02. Conditions to Transfers. The Depositor shall transfer to the
Trust the Contracts and other Transferred Assets described in Section 2.01 above
only upon the satisfaction of each of the following conditions on or prior to
the Closing Date and shall be deemed to have represented in respect of the
Closing Date that all such conditions are satisfied upon the Depositor's
delivery of the Transfer Agreement:
(a) the Depositor shall have delivered to the Owner Trustee on behalf
of the Trust the duly executed Transfer Agreement, which shall include a
Schedule of Contracts listing the Contracts being transferred on the Closing
Date;
(b) the VFC Trust shall have delivered to the Depositor and the Owner
Trustee on behalf of the Trust the duly executed VFC Assignment with respect to
the VFC Contracts being conveyed by the VFC Trust on the Closing Date;
(c) A letter from KPMG LLP, or another nationally recognized
accounting firm, addressed to the Depositor and the Underwriters and stating
that such firm has reviewed a sample of the Initial Contracts and performed
specific procedures for such sample with respect to certain contract terms and
which identifies those Initial Contracts which do not conform;
(d) Copies of resolutions of the Board of Directors of Financial, the
Servicer and the Depositor or of the Executive Committee of the Board of
Directors of Financial, the Servicer and the Depositor approving the execution,
delivery and performance of this Agreement and the other Transaction Documents
to which any of them is a party, as applicable,
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and the transactions contemplated hereunder and thereunder, certified
in each case by the Secretary or an Assistant Secretary of Financial, the
Servicer and the Depositor;
(e) Officially certified, recent evidence of due incorporation or
formation, as the case may be and good standing of each of Financial and the
Depositor under the laws of Delaware;
(f) (i) Evidence of proper filing or provision for filing with
appropriate offices in the jurisdictions in which a UCC financing statement was
filed naming the Depositor as debtor and the VFC Trust as secured party, with
respect to the VFC Contracts, of a UCC partial release identifying the VFC
Contracts as collateral being released, executed by the VFC Trust; (ii) evidence
of proper filing or provision for filing with appropriate offices in the
applicable Contract File Locations and the state of the chief executive office
of the applicable Financing Originator of UCC financing statements executed by
the applicable Financing Originator, as debtor, and naming Financial as secured
party (and the Depositor as assignee), to perfect the grant of a security
interest from the applicable Financing Originator to Financial and then to the
Depositor pursuant to the applicable Purchase and Sale Agreements; (iii)
evidence of proper filing or provision for filing with appropriate offices in
the Contract File Locations and the state of the chief executive office of
Financial of UCC financing statements executed by Financial, as debtor, and
naming the Depositor as secured party, to perfect the grant of a security
interest from Financial to the pursuant to the applicable Purchase and Sale
Agreements; (iv) evidence of proper filing or provision for filing with
appropriate offices in the Contract File Locations and the state of the chief
executive office of the Depositor of UCC financing statements executed by the
Depositor, as debtor, and naming the Trust as secured party, to perfect the
grant of a security interest from the Depositor to the Trust pursuant to Article
II hereof; (v) evidence of proper filing or provision for filing with
appropriate offices in the Contract File Locations and the state of the chief
executive office of the Trust of UCC financing statements executed by the Trust,
as debtor, and naming the Indenture Trustee as secured party, to perfect the
grant of a security interest from the Trust to the Indenture Trustee pursuant to
the Indenture;
(g) Evidence of deposit in the Cash Collateral Account of the initial
Required Cash Collateral Amount;
(h) A fully executed Substitute VFC Purchase Agreement;
(i) a fully executed Non-VFC Conveyancing Agreement;
(j) a fully executed Non-VFC Purchase Agreement;
(k) A fully executed VFC Assignment;
(l) A fully executed Trust Agreement;
(m) A fully executed Administration Agreement;
(n) A fully executed Indenture;
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(o) A fully executed Class A-2 Swap Agreement;
(p) A fully executed Class A-3 Swap Agreement;
(q) A fully executed Pooling Agreement;
(r) an opinion of Schulte Roth & Zabel LLP to the effect that for
federal income tax purposes, the Class A-1 Notes, Class A-2 Notes, Class A-3
Notes, Class A-4 Notes, Class B Notes, Class C Notes and Class D Notes will be
characterized as debt and the Trust will not be characterized as an association
(or publicly traded partnership) taxable as a corporation;
(s) each of the representations and warranties made by Financial
pursuant to Article III of the Purchase and Sale Agreements shall be true and
correct as of the Closing Date (including the representation made thereunder as
to compliance with the UCC filing criteria as set forth in clause (j) of the
definition of Eligible Contract), and Financial shall have performed in all
material respects all obligations to be performed by it under the Purchase and
Sale Agreements on or prior to the Closing Date;
(t) each of the representations and warranties made by the Depositor
and the Servicer pursuant to Article III hereof shall be true and correct as of
the Closing Date;
(u) the Depositor shall, at its own expense, on or prior to the
Closing Date indicate in its computer files that the Transferred Assets
identified in the Transfer Agreement have been conveyed to the Trust pursuant to
this Agreement and the Transfer Agreement;
(v) no event has occurred and is continuing, or would result from the
conveyance on the Closing Date that constitutes a Servicer Default; and
(w) the Depositor or the Servicer shall have provided the Owner
Trustee on behalf of the Trust a statement or computer disk listing the Contract
Pool Principal Balance on the Closing Date of the contracts being transferred on
the Closing Date.
The failure to satisfy any of the foregoing conditions to transfer or to
obtain a waiver thereof shall not be deemed to adversely affect the validity of
any such transfer.
Section 2.03. Acceptance by Trust. On the Closing Date, if all the
conditions specified in Section 2.02 above have been satisfied, the Trust shall
issue, and the Owner Trustee shall authenticate, to, or upon the order of, the
Depositor and in accordance with the Trust Agreement, the Equity Certificate
representing ownership of a beneficial interest in 100% of the Trust and the
Trust shall issue, and the Indenture Trustee shall authenticate, to, or upon the
order of, the Depositor in accordance with the terms of the Indenture the Notes
secured by the Collateral. The Trust hereby acknowledges its acceptance of the
Trust Assets, and declares that it shall maintain such right and interest in the
Trust Assets in accordance with the terms of this Agreement and the Trust
Agreement upon the trust herein and therein set forth.
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Section 2.04. Conveyance of Substitute Contracts. (a) Subject to the
limitations set forth in (and the other terms and conditions of) this Section
2.04, the Depositor may substitute other Contracts and related assets for
Contracts and related Transferred Assets previously conveyed to the Trust and in
the Contract Pool, by conveying such other Contracts and related assets to the
Trust pursuant to the procedures and documentation specified below. Upon the
effectiveness of such substitution, such other Contracts and related Transferred
Assets (such Contracts, "Substitute Contracts", and collectively, "Substitute
Transferred Assets") shall, for all purposes of this Agreement and the Trust
Agreement, constitute and be considered as part of the Trust Assets, and the
Contracts already in the Contract Pool and related Transferred Assets for which
the Substitute Assets have been substituted (such Contracts, "Replaced
Contracts", and collectively, "Replaced Assets") shall no longer constitute
Trust Assets. Upon consummation of such substitution, the Trust shall be deemed
to have assigned to the Depositor all of the Trust's right, title and interest
in and to the Replaced Assets, without recourse, representation or warranty.
In addition, the parties hereto intend and agree that any conveyance
described in this Section 2.04 is made with the intent and effect described in
subsection (c) of Section 2.01 above.
(b) Subject to the conditions set forth in this subsection (b) below, and
pursuant to one or more related Substitution Transfer Agreements, the Depositor
shall transfer, assign, set over and otherwise convey to the Trust, without
recourse (other than as expressly provided herein), (i) all the right and
interest of the Depositor in and to the Substitute Contracts listed on the
related Substitution Schedule of Contracts, and (ii) all other rights and
property interests consisting of Transferred Assets related to such Substitute
Contracts. The Depositor shall effect such transfers only upon the satisfaction
of each of the following conditions on or prior to the related Substitution
Transfer Date (and the delivery of a related Substitution Notice by the
Depositor shall be deemed a representation and warranty by the Depositor that
such conditions have been or will be, as of the related Substitution Transfer
Date, satisfied):
(i) At least five days prior to the related Substitution Transfer
Date, the Depositor shall have provided the Owner Trustee on behalf of the
Trust and the Indenture Trustee with a Substitution Notice complying with
the definition thereof contained herein;
(ii) there shall have occurred, with respect to each such Substitute
Contract, a corresponding Substitution Event with respect to one or more
intended Replaced Contracts then constituting Contracts in the Contract
Pool;
(iii) the Substitute Contract(s) being conveyed to the Trust, satisfy
the Substitute Contract Qualification Conditions;
(iv) the Depositor shall have delivered to the Owner Trustee on behalf
of the Trust a duly executed written assignment agreement in substantially
the form of Exhibit E hereto (a "Substitution Transfer Agreement"), which
shall
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include a Substitution Schedule of Contracts identifying the
Substitute Contracts and the related Replaced Contracts;
(v) Financial shall have delivered to the Depositor and the Owner
Trustee on behalf of the Trust a duly executed Substitution Assignment
Agreement with respect to such conveyance;
(vi) no selection procedures adverse to the interests of either the
Trust, the Noteholders or the Equity Certificateholder shall have been
utilized in selecting the Substitute Contracts;
(vii) each of the representations and warranties made by Financial
pursuant to Article III of the Substitute VFC Purchase Agreement or Non-VFC
Purchase Agreement, as the case may be, shall be true and correct as of the
related Substitution Transfer Date (including the representation made as to
compliance with the UCC filing criteria set forth in clause (j) of the
definition of Eligible Contract), and Financial shall have performed in all
material respects all obligations to be performed by it under the
Substitute VFC Purchase Agreement or Non-VFC Purchase Agreement, as the
case may be, on or prior to such Substitution Transfer Date; and
(viii) the Servicer and Financial and the applicable Financing
Originator shall, at their own expense, on or prior to the Substitution
Transfer Date, have indicated in their respective computer files that the
Substitute Contracts identified on the Substitution Schedule of Contracts
attached to the related Substitution Transfer Agreement have been assigned
and conveyed to the Trust through the Depositor pursuant to this Pooling
Agreement and the Substitute VFC Purchase Agreement or Non-VFC Purchase
Agreement, as the case may be.
The failure to satisfy any of the foregoing conditions to transfer or to
obtain a waiver thereof shall not be deemed to adversely affect the validity of
any such transfer.
Section 2.05. Release of Excluded Amounts. The Trust hereby agrees to
release to the Servicer, an amount equal to the Excluded Amounts immediately
upon identification thereof, which release shall be automatic and shall require
no further act by the Trust, provided that the Trust shall execute and deliver
such instruments of release and assignment, or otherwise confirm the foregoing
release, as may reasonably be requested in writing by the Servicer. Upon such
release, such Excluded Amounts shall not constitute and shall not be included in
the Trust Assets.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Financial, under the Purchase and Sale Agreements, has made, and upon
execution of each Substitution Assignment Agreement is deemed to remake with
respect to the relevant Contract Assets conveyed by the VFC Assignment, the
Non-VFC Purchase Agreement, or the Substitution VFC Purchase Agreement, as the
case may be, each of the representations and warranties set forth in the
Schedule of Representations, and has consented to the assignment by the
Depositor to the Trust of the Depositor's rights with respect thereto. Such
representations speak as of the Closing Date in the case of the Initial
Contracts, and as of the applicable Substitution Transfer Date in the case of
the Substitute Contracts, but shall survive the transfer and assignment of the
related Contracts to the Trust. Pursuant to Section 2.01 of this Agreement, the
Depositor has sold, assigned, transferred and conveyed to the Trust as part of
the Transferred Assets its rights under the Purchase and Sale Agreements,
including without limitation, the representations and warranties of Financial
therein as set forth in the Schedule of Representations, together with all
rights of the Depositor with respect to any breach thereof including any right
to require Financial to repurchase or substitute for any Contract in accordance
with the Purchase and Sale Agreements. It is understood and agreed that the
representations and warranties set forth or referred to in this Section shall
survive delivery of the Contract Files to the Trust or any custodian.
The Depositor hereby confirms to the Trust that it has entered into the
Purchase and Sale Agreements with Financial, that Financial has made the
representations and warranties in the Schedule of Representations, that such
representations and warranties run to and are for the benefit of the Trust, and
that pursuant to Section 2.01 of this Agreement the Depositor has transferred
and assigned to the Trust all rights of the Depositor to cause Financial under
the Purchase and Sale Agreements to repurchase or substitute for Contracts
conveyed thereunder in the event of a breach of such representations and
warranties applicable to such Contract.
Section 3.01. Representations and Warranties Regarding the Depositor. By
its execution of this Agreement, and each Substitution Transfer Agreement, the
Depositor represents and warrants to the Trust, the Owner Trustee, the Indenture
Trustee, the Noteholders and the Equity Certificateholder that, as of the date
of the Closing Date and Substitution Transfer Date (and, with respect to the
representation set forth in subsection (k) of this Section 3.01 below, as of the
date the certificate, written report or written statement referred to in such
subsection is furnished):
(a) Organization and Good Standing. The Depositor is a limited
liability company duly organized, validly existing and in good standing under
the laws of Delaware and has the requisite power to own its assets and to
transact the business in which it is currently engaged. The Depositor is duly
qualified to do business and is in good standing in each jurisdiction in which
the character of the business transacted by it or properties owned or leased by
it requires such qualification and in which the failure so to qualify would have
a material
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adverse effect on the business, properties, assets, or condition (financial or
other) of the Depositor or the Trust.
(b) Authorization; Valid Transfer; Binding Obligations. The Depositor
has the power and authority to make, execute, deliver and perform this Agreement
and the other Transaction Documents to which it is a party and all of the
transactions contemplated under this Agreement and the other Transaction
Documents to which it is a party, and to create the Trust and cause it to make,
execute, deliver and perform its obligations under this Agreement and the other
Transaction Documents to which it is a party and has taken all necessary
corporate action to authorize the due execution, delivery and performance of
this Agreement and the other Transaction Documents to which it is a party and to
cause the Trust to be created. This Agreement and the Transfer Agreement and any
Substitution Transfer Agreement shall effect a valid transfer and assignment of
the relevant Transferred Assets, enforceable against the Depositor and creditors
of and purchasers from the Depositor. This Agreement and the other Transaction
Documents to which the Depositor is a party have been duly executed and
delivered by the Depositor and constitute the legal, valid and binding
obligation of the Depositor enforceable in accordance with their terms, except
as enforcement of such terms may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies.
(c) No Consent Required. The Depositor is not required to obtain the
consent of any other Person or any consent, license, approval or authorization
from, or registration or declaration with, any Governmental Authority in
connection with the execution, delivery, performance, validity or enforceability
of this Agreement or the other Transaction Documents to which it is a party.
(d) No Violations. The execution, delivery and performance of this
Agreement and the other Transaction Documents to which it is a party by the
Depositor, and the consummation of the transactions contemplated hereby and
thereby, will not violate any Requirements of Law applicable to the Depositor,
or constitute a material breach of any mortgage, indenture, contract or other
agreement to which the Depositor is a party or by which the Depositor or any of
the Depositor's properties may be bound, or result in the creation or imposition
of any security interest, lien, charge, pledge, preference, equity or
encumbrance of any kind upon any of its properties pursuant to the terms of any
such mortgage, indenture, contract or other agreement, other than as
contemplated by the Transaction Documents.
(e) Litigation. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending, or to the
knowledge of the Depositor threatened, against the Depositor or any of its
properties or with respect to this Agreement or the other Transaction Documents
to which it is a party (1) which, if adversely determined, would in the
reasonable judgment of the Depositor have a material adverse effect on the
business, properties, assets or condition (financial or otherwise) of the
Depositor or the Trust or the transactions contemplated by this Agreement or the
other Transaction Documents to which the Depositor is a party or (2) seeking to
adversely affect the federal income tax or other federal, state or local tax
attributes of the Notes.
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(f) Taxes. The Depositor has filed or caused to be filed all material
tax returns which, to its knowledge, are required to be filed and has paid all
taxes shown to be due and payable on such returns or on any material assessments
made against it or any of its property and all other material taxes, fees or
other charges imposed on it or any of its property by any Governmental Authority
(other than any amount of tax due, the validity of which is currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in accordance with generally accepted accounting principles have been
provided on the books of the Depositor); no tax lien has been filed and, to the
Depositor's knowledge, no claim is being asserted, with respect to any such tax,
fee or other charge.
(g) Schedule of Representations. The representations and warranties
set forth on the Schedule of Representations are true and correct as of the
Closing Date (or Substitution Transfer Date, as applicable) with respect to the
Transferred Assets being conveyed to the Trust on such date.
(h) Solvency. The Depositor, at the time of and after giving effect to
each conveyance made hereunder, is Solvent on and as of the date thereof.
(i) Place of Business; Name Changes. The location of the Depositor's
sole place of business or chief executive office (within the meaning of Article
9 of the UCC) is as set forth in Section 11.04 below, and such location has not
been changed within the four months preceding any Transfer Date (or if so
changed, all necessary actions in connection with such change have been or are
being timely taken in accordance with Section 4.03 hereof). The Depositor has
not changed its name, whether by amendment of its certificate of formation, by
reorganization or otherwise, within the four months preceding any Transfer Date
(or if so changed, all necessary actions in connection with such change have
been or are being timely taken in accordance with Section 4.03 hereof).
(j) Not an Investment Company. The Depositor is not an "investment
company" (and does not control, and is not under the control of, an investment
company) within the meaning of the Investment Company Act of 1940, as amended
(or the Depositor is exempt from all provisions of such Act).
(k) Accuracy of Information. No certificate, written report or written
statement furnished by the Depositor to the Servicer, the Trust, the Owner
Trustee, any Securityholder or the Administrator in connection with this Pooling
Agreement or any other Transaction Document was inaccurate in any material
respect as of the date it was dated or (except as otherwise disclosed to the
Servicer, the Trust, the Owner Trustee, such Securityholder or the
Administrator, as the case may be, at such time) as of the date so furnished.
Such representations (except to the extent expressly stated by their terms to
speak as of a different date or time) speak as of the Closing Date and each
Transfer Date and Substitution Transfer Date, if any, but shall survive the
transfer and assignment of the Contracts to the Trust.
Section 3.02. Representations and Warranties of the Servicer. The Servicer
represents and warrants to the Trust, the Owner Trustee, the Indenture Trustee,
the Noteholders
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and the Equity Certificateholder that, as of the date of the execution and
delivery of this Agreement and as of the Closing Date and each Substitution
Transfer Date:
(a) Organization and Good Standing. The Servicer is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has the corporate power to own its assets and
to transact the business in which it is currently engaged. The Servicer is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or otherwise) of the Servicer or the
Trust. The Servicer (or any permitted subservicer hereunder with respect to
affected Contracts, if the Servicer is not so licensed) is properly licensed in
each jurisdiction to the extent required by the laws of such jurisdiction to
service the Contracts in accordance with the terms hereof.
(b) Authorization; Binding Obligations. The Servicer has the power and
authority to make, execute, deliver and perform this Agreement and the other
Transaction Documents to which the Servicer is a party and all of the
transactions contemplated under this Agreement and the other Transaction
Documents to which the Servicer is a party, and has taken all necessary
corporate action to authorize the due execution, delivery and performance of
this Agreement and the other Transaction Documents to which the Servicer is a
party. This Agreement and the other Transaction Documents to which the Servicer
is a party have been duly executed and delivered by the Servicer and constitute
the legal, valid and binding obligation of the Servicer enforceable in
accordance with their terms, except as enforcement of such terms may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable remedies.
(c) No Consent Required. The Servicer is not required to obtain the
consent of any other Person or any consent, license, approval or authorization
from, or registration or declaration with, any Governmental Authority in
connection with the execution, delivery, performance, validity or enforceability
of this Agreement and the other Transaction Documents to which the Servicer is a
party.
(d) No Violations. The execution, delivery and performance of this
Agreement and the other Transaction Documents to which the Servicer is a party
by the Servicer will not violate any Requirements of Law applicable to the
Servicer, or constitute a material breach of any mortgage, indenture, contract
or other agreement to which the Servicer is a party or by which the Servicer or
any of the Servicer's properties may be bound, or result in the creation of or
imposition of any security interest, lien, pledge, preference, equity or
encumbrance of any kind upon any of its properties pursuant to the terms of any
such mortgage, indenture, contract or other agreement, other than as
contemplated by the Transaction Documents.
(e) Litigation. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending, or to the
knowledge of the Servicer threatened, against the Servicer or any of its
properties or with respect to this Agreement, or any other Transaction Document
to which the Servicer is a party which, if
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adversely determined, would in the reasonable judgment of the Servicer
have a material adverse effect on the business, properties, assets or condition
(financial or otherwise) of the Servicer or the Trust or the transactions
contemplated by this Agreement or any other Transaction Document to which the
Servicer is a party.
(f) Accuracy of Information. No certificate, written report or written
statement, furnished by the Servicer to the Trust Depositor, the Trust, the
Owner Trustee, any Securityholder or the Administrator in connection with this
Pooling Agreement or any other Transaction Document was inaccurate in any
material respect as of the date it was dated or (except as otherwise disclosed
to the Trust Depositor, the Trust, the Owner Trustee, such Securityholder or the
Administrator, as the case may be, at such time) as of the date so furnished.
Each financial statement furnished pursuant to clause (i) of Section 9.04 is
complete and correct in all material respects and fairly presents the financial
condition of the Servicer (or its parent entity, if the Servicer is a
wholly-owned subsidiary of another entity), as of the reporting date specified
therein, and the results of operations of the Servicer (or such parent entity,
as applicable) for the period then ended, all in accordance with generally
accepted accounting principles as in effect in the jurisdiction of the entity
for which such financial statement is furnished.
(g) No Servicer Default. No event has occurred and is continuing and
no condition exists which constitutes a Servicer Default.
(h) Servicer's Year 2000 Compatibility. The Servicer has taken all
reasonable action necessary to assure that its computer based systems are able
to operate and effectively process data including dates on or after January 1,
2000.
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ARTICLE IV
PERFECTION OF TRANSFERS AND PROTECTION OF SECURITY INTERESTS
Section 4.01. Custody of Contracts. (a) Subject to the terms and conditions
of this Section 4.01, the contents of each Contract File shall be held in the
custody of the Servicer (including through any subservicer contemplated under
Section 5.05), for the benefit of, and as agent for, the Noteholders, the Equity
Certificateholder, the Indenture Trustee and the Issuer, as the owner thereof.
(b) The Servicer agrees to maintain the Contract Files at its offices
where they are currently maintained, or at such other offices of the Servicer
(or a subservicer contemplated under Section 5.05) as shall from time to time be
established by the Servicer or such subservicer (or in certain instances at
offsite storage facilities in the same general geographic area as an office of
the Servicer or subservicer, pursuant to contractual agreement between the
Servicer or subservicer and the Person owning or maintaining such offsite
facility). The Servicer may temporarily move individual Contract Files or any
portion thereof without notice or other such compliance, as necessary to conduct
collection and other servicing activities in accordance with the Servicing
Standard; provided, however, that the Servicer will take all action necessary to
maintain the perfection of the Trust's interest in the Trust Assets and the
proceeds thereof. It is intended that by the Servicer's agreement pursuant to
Section 4.01(a) above and this Section 4.01(b), the Trust and the Owner Trustee
for the benefit of the Trust shall be deemed to have possession of the Contract
Files for purposes of Section 9-305 of the Uniform Commercial Code of the State
in which the Contract Files are located.
(c) As custodian, the Servicer shall have and perform the following
powers and duties:
(i) hold the Contract Files on behalf of the Noteholders and the
Equity Certificateholder and the Trust; maintain accurate records
pertaining to each Contract to enable it to comply with the terms and
conditions of this Agreement; and maintain a current inventory
thereof;
(ii) maintain and comply with Customary Policies and Procedures
with respect to Persons authorized to have access to the Contract
Files;
(iii) attend to all details in connection with maintaining
custody of the Contract Files on behalf of the Noteholder and the
Equity Certificateholder and the Trust; and
(iv) indicate in the appropriate computer records that the
Contracts as of the Closing Date (or Substitution Transfer Date, as
the case may be) have been conveyed to the Trust.
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(d) In performing its duties under this Section 4.01, the Servicer
agrees to act in accordance with the applicable Servicing Standard. In acting as
custodian of the Contract Files, the Servicer further agrees not to assert any
legal or beneficial ownership interest in the Contracts or the Contract Files,
except as provided in Section 5.02.
(e) The Servicer agrees to indemnify the Noteholders and the Equity
Certificateholder, the Owner Trustee, the Indenture Trustee and the Trust for
any and all liabilities, obligations, losses, damages, payments, costs, or
expenses of any kind whatsoever which may be imposed on, incurred by or asserted
against any of such parties as the result of any act or omission by the Servicer
relating to the maintenance and custody of the Contract Files or any other
breach or noncompliance of the Servicer in the performance of its duties and
obligations as Servicer hereunder; provided, however, that the Servicer will not
be liable to any such party for any portion of any such amount resulting from
the gross negligence or willful misconduct of such party.
Section 4.02. Filings. On or prior to the Closing Date, the Servicer shall
cause UCC financing statement(s) to be filed or provided for, and from time to
time the Servicer shall take and cause to be taken such other actions and
execute such other documents as are necessary to perfect or further perfect and
protect the Trust's first priority interest in the Trust Assets against all
other Persons. Such additional actions may include without limitation, the
filing of financing statements, amendments thereto and continuation statements,
the execution of transfer instruments and the making of notations on or taking
possession of records or documents of title.
Section 4.03. Name Change or Relocation. (a) During the term of this
Agreement, neither the Servicer nor the Depositor shall change, nor shall the
Servicer permit any Financing Originator to change, its name, identity or
structure or relocate its chief executive office without first giving at least
30 days' prior written notice to the Servicer, the Owner Trustee, and the
Indenture Trustee.
(b) If any change in either the Servicer's, a Financing Originator's
or the Depositor's name, identity or structure or other action would make any
financing or continuation statement or notice of lien seriously misleading
within the meaning of applicable provisions of the UCC or any title statute, the
Servicer, no later than four months after the effective date of such change,
shall file such amendments as may be required to preserve and protect the
Trust's interests in the Trust Assets and the proceeds thereof. In addition,
neither any Financing Originator, the Servicer nor the Depositor shall change
its place of business (within the meaning of Article 9 of the UCC), from the
locations specified in Section 11.04 hereof unless it has first taken such
action as is necessary to preserve and protect the Trust's interest in the Trust
Assets.
Promptly after taking any of the foregoing actions (but not later than 20
calendar days), the Servicer shall deliver to the Owner Trustee, the Indenture
Trustee and the Rating Agencies an Opinion of Counsel reasonably acceptable to
the Owner Trustee, the Indenture Trustee and the Rating Agencies stating that,
in the opinion of such counsel, all financing statements or amendments necessary
to preserve and protect the interests of the Trust and Indenture Trustee in the
Trust Assets have been filed, and reciting the details of such filing.
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ARTICLE V
SERVICING OF CONTRACTS
Section 5.01. Initial Servicer's Appointment and Acceptance; Responsibility
for Contract Administration. TCC shall be and is hereby appointed as the
Servicer and custodian (as contemplated in Article IV hereof) pursuant to this
Agreement with respect to the Contract Assets in the Contract Pool. TCC accepts
the appointment and agrees to act as the Servicer and custodian pursuant to this
Agreement.
Except to the extent otherwise specified herein or as contemplated in
Section 5.05, the Servicer will have the sole obligation to manage, administer,
service and make collections on the Contracts and perform or cause to be
performed all contractual and customary undertakings of the Originator of the
Contracts to the Obligor. The Trust, at the written request of a Servicing
Officer, shall furnish the Servicer with any powers of attorney or other
documents necessary or appropriate in the opinion of the Servicer to enable the
Servicer to carry out its servicing and administrative duties hereunder. The
Servicer is hereby appointed the Servicer hereunder until such time as any
Servicing Transfer may be effected pursuant to Article VIII hereof.
Section 5.02. General Duties. The Servicer will service, administer and
enforce the Contracts in the Contract Pool on behalf of the Trust and will have
full power and authority to do any and all things in connection with such
servicing and administration which it deems necessary or desirable and as shall
not contravene the provisions of this Agreement or any other Transaction
Document. The Servicer will manage, service, administer, and make collections on
the Contracts in the Contract Pool in accordance with the Servicing Standard.
The Servicer's duties will include collection and posting of all payments,
responding to inquiries of Obligors regarding the Contracts in the Contract
Pool, investigating delinquencies, accounting for collections, furnishing
reports with respect to collections and payments as contemplated in Article IX
hereof, making Servicer Advances in accordance with Section 5.14 hereof, and
using its best efforts to maintain the perfected first priority interest of the
Trust in the Trust Assets. The Servicer will have full power and authority,
acting alone, to do any and all things in connection with such managing,
servicing, administration, and collection that it deems necessary or desirable.
If the Servicer commences a legal proceeding to enforce a Defaulted Contract
pursuant to Section 5.15 or commences or participates in a legal proceeding
(including a bankruptcy proceeding) relating to or involving a Contract in the
Contract Pool, the Trust will be deemed to have automatically assigned such
Contract to the Servicer solely for purposes of, and to the extent necessary
for, commencing or participating in any such proceeding as a party or claimant
(but in all cases subject to the continuing interest of the Trust and its
assignees in the proceeds and recoveries from such proceedings, as and to the
extent provided in the Transaction Documents), and the Servicer is authorized
and empowered by the Trust, pursuant to this Section 5.02, to execute and
deliver, on behalf of itself and the Trust, any and all instruments of
satisfaction or cancellation, or partial or full release or discharge, and all
other notices, demands, claims, complaints, responses, affidavits or other
documents or instruments in connection with any such proceedings. If in any
enforcement suit or legal proceeding it is held that the Servicer
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may not enforce a Contract on the ground that it is not a real party in
interest or a holder entitled to enforce the Contract, then the Owner Trustee
will, at the Servicer's expense and written direction, take steps on behalf of
the Trust to enforce the Contract, including bringing suit in the Trust's name.
Section 5.03. Assignment or Replacement. At the request of an Obligor, the
Servicer may in its sole discretion consent to the assignment by such Obligor of
its rights under a Contract in the Contract Pool or the sublease of a unit of
the Equipment relating to such a Contract, so long as such Obligor remains
liable for all of its obligations under such Contract; provided, that the
Servicer may release such Obligor from its obligations if the Obligor's assignee
is determined by the Servicer to be of at least equivalent credit risk, all in
accordance with Customary Policies and Procedures. Upon the request of any
Obligor, the Servicer may, in its sole discretion, provide for the substitution
or replacement of any unit of Equipment for a substantially similar unit of
Equipment, so long as such Obligor remains liable for all of its obligations
under such Contract.
Section 5.04. Disposition Upon Termination of Contract. Upon the
termination of a Contract included in the Contract Pool as a result of a default
by the Obligor thereunder, and upon any such Contract becoming a Defaulted
Contract, the Servicer will use commercially reasonable efforts to dispose of
any related Equipment. Without limiting the generality of the foregoing, if the
Servicer disposes of any such Equipment by purchasing such Equipment or by
selling such Equipment to any of its Affiliates, such disposition shall be for a
purchase price equal to the fair market value thereof (as determined by the
Servicer in its reasonable discretion). The Servicer will deposit any
Prepayments and any Liquidation Proceeds derived from any such disposition in
accordance with Article VII hereof.
Section 5.05. Subservicers. The Servicer may enter into servicing
agreements with one or more subservicers (including the Financing Originators or
any other Affiliate of the Servicer) to perform all or a portion of the
servicing functions on behalf of the Servicer; provided that the Servicer shall
remain obligated and be liable to the Trust for servicing and administering the
Contracts in the Contract Pool in accordance with the provisions of this
Agreement without diminution of such obligation and liability by virtue of the
appointment of such subservicer, to the same extent and under the same terms and
conditions as if the Servicer alone were servicing and administering such
Contracts. The fees and expenses of the subservicer (if any) will be as agreed
between the Servicer and its subservicer and neither the Owner Trustee, the
Trust, the Indenture Trustee nor any Noteholder or Equity Certificateholder will
have any responsibility therefor. All actions of a subservicer taken pursuant to
such a subservicing agreement will be taken as an agent of the Servicer with the
same force and effect as though performed by the Servicer.
Section 5.06. Further Assurance. The Trust will execute and deliver to the
Servicer, and the Servicer will prepare and furnish any subservicer with, any
powers of attorney and other documents necessary or appropriate to enable the
Servicer or a subservicer, as applicable, to carry out its servicing and
administrative duties under this Agreement and the other Transaction Documents.
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Section 5.07. Notice to Obligors. Except as contemplated in clause (m) of
the definition of Eligible Contract, the Servicer will not be required to notify
any Obligor that such Obligor's Contract or related Equipment, or any security
interest in such Contract or such Equipment, has been transferred, assigned, and
conveyed pursuant to the VFC Conveyancing Agreement, the Non-VFC Conveyancing
Agreement, the Purchase and Sale Agreements, the VFC Pooling Agreement, the VFC
Assignment or pursuant to this Agreement; provided that, in the event that the
Servicer resigns or is replaced, then if the place for payment pursuant to any
Contract is changed, the Successor Servicer must give each related Obligor
prompt written notice of the appointment of the Successor Servicer and the place
to which such Obligor should make payments pursuant to each such Contract.
Section 5.08. Collection Efforts; Modification of Contracts. (a) The
Servicer will make reasonable efforts to collect all payments called for under
the terms and provisions of the Contracts in the Contract Pool as and when the
same become due, in accordance with the Servicing Standard. The Servicer is
authorized in its discretion to waive any Late Charges, or other administrative
fees, expenses and charges collectible in respect of a Contract in the Contract
Pool, including late payment interest, documentation fees, insurance
administration charges, and extension fees.
(b) The Servicer also may, subject to Sections 5.09 and 5.10, at the
request of an Obligor and at the Servicer's option, waive, amend, modify or
otherwise vary any other provision of a Contract in accordance with Customary
Policies and Procedures (it being understood that any modification or amendment
of a Contract resulting from an Insolvency Event with respect to the related
Obligor will not be deemed to have been granted by the Servicer hereunder),
including without limitation:
(i) in order to (A) change the Obligor's regular due date to a
date within the Collection Period in which such due date occurs, or
(B) re-amortize (over the remainder of the original Contract term) the
Scheduled Payments on a Contract following a partial Prepayment
(provided, that the sum of such partial Prepayment and the Contract
Principal Balance of the affected Contract after re-amortization is at
least equal to the Contract Principal Balance for such Contract prior
to giving effect to the partial Prepayment), or
(ii) for any other purpose; provided, that no such modification
or amendment shall:
(A) change the amount or the due date of any Scheduled
Payment (except as provided in clauses (i)(A) and (B) above,
Section 5.09 and Section 5.10 below);
(B) release the related Equipment from the Contract, unless
(1) the release complies with Section 5.03 above, or (2) the
release is pursuant to a partial Prepayment (which, in the case
of a partial Prepayment on a Lease, meets the requirements of
Section
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5.09 below) and the ratio of the fair market value
(determined by the Servicer in its reasonable discretion) of the
related Equipment to the Contract Principal Balance of the
affected Contract after giving effect to such Prepayment and
release, is at least equal to such ratio existing prior to such
event;
(C) except as provided in clause (ii)(A) above, result in
the Contract Principal Balance of the Contract being less than it
would have been absent such modification or amendment; or
(D) if such modification or amendment had been in effect on
the relevant Transfer Date with respect to the Contract, cause or
have caused the Contract not to constitute an Eligible Contract.
Section 5.09. Prepayments of Certain Contracts. The Servicer may, at its
option and in accordance with Customary Policies and Procedures, agree to permit
a Contract in the Contract Pool that is not otherwise contractually prepayable
by its terms and is not a Defaulted Contract, to become a Prepaid Contract
through a voluntary Prepayment by the Obligor (which shall not be deemed to
include prepayment due to a Casualty Loss); provided, that the Servicer will not
permit the voluntary full or partial Prepayment of such a Contract unless the
amount of such Prepayment (or, in the case of a partial Prepayment, the sum of
such Prepayment and the remaining Contract Principal Balance of the Contract
after application of such Prepayment), together with such additional amounts as
are (i) otherwise available to or supplied by the Servicer for the purpose of
prepaying such Contract, and (ii) deposited in the Collection Account
contemporaneously with the deposit therein of such Prepayment, is at least equal
to the Required Payoff Amount for such Contract determined as of the beginning
of the current Collection Period.
Section 5.10. Certain Extensions; Acceleration. (a) The Servicer may
(subject to subsection (b) below) grant payment extensions on a Contract in the
Contract Pool, consistent with Customary Policies and Procedures (it being
understood that any extensions on a Contract resulting from an Insolvency Event
with respect to the related Obligor will not be deemed to have been granted by
the Servicer hereunder) if the Servicer believes in good faith that such
extension is necessary to avoid a termination and liquidation of such Contract
and will maximize the amount to be received by the Trust with respect to such
Contract; provided, however, that the aggregate period of all extensions granted
on a Contract shall not exceed six months. Nothing in this Section 5.10 shall be
deemed to prevent the Servicer from extending or renewing, or otherwise
accepting the continued performance by the Obligor under, a Contract after
expiration of its stated term.
(b) The Servicer also, consistent with Customary Policies and
Procedures, may accelerate (or elect not to accelerate) the maturity of all or
any Scheduled Payments under any Contract in the Contract Pool under which a
default under the terms thereof has occurred and is continuing (after the lapse
of any applicable grace period); provided that the Servicer is required to
accelerate the Scheduled Payments due under any Contract in the Contract
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Pool (and take other action in accordance with applicable Customary Policies and
Procedures, including repossessing or otherwise converting the related
Equipment, to realize upon the value of such Contract and the related Equipment)
to the fullest extent permitted by the terms of such Contract, promptly after
such Contract becomes a Defaulted Contract.
Section 5.11. Taxes and Other Amounts. To the extent provided for in any
Contract in the Contract Pool, the Servicer will make reasonable efforts
consistent with the Servicing Standard to collect (or cause to be collected) all
payments with respect to amounts due for taxes, assessments and insurance
premiums relating to such Contract or the related Equipment and remit such
amounts to the appropriate Governmental Authority or insurer on or prior to the
date such payments are due.
Section 5.12. Suits by Servicer. Notwithstanding anything herein to the
contrary, the Servicer does not have any obligation pursuant to this Agreement
to appear in, prosecute or defend any legal action which is not incidental to
its servicing duties under this Agreement.
Section 5.13. Remittances. The Servicer will remit and service all
Collections in accordance with Article VII hereof.
Section 5.14. Servicer Advances. For any Collection Period, if the Servicer
determines that any Scheduled Payment (or portion thereof) which was due and
payable pursuant to a Contract in the Contract Pool during such Collection
Period was not received prior to the end of such Collection Period, the Servicer
shall make a Servicer Advance in an amount up to the amount of such delinquent
Scheduled Payment (or portion thereof), to the extent that in its sole
discretion it determines that it can recover such amount from subsequent
Collections under the related Contract; provided, however, if a Person other
than an affiliate of The CIT Group, Inc. becomes the Servicer hereunder, such
Person shall not be required to make a Servicer Advance. The Servicer will
deposit any Servicer Advances into the Collection Account on or prior to 11:00
a.m. (New York time) on the Deposit Date, in immediately available funds. The
Servicer will be entitled to be reimbursed for Servicer Advances pursuant to
Article VII hereof.
Section 5.15. Realization Upon Defaulted Contract. The Servicer will use
its best efforts consistent with the Servicing Standard to repossess or
otherwise comparably convert the ownership of any Equipment relating to a
Defaulted Contract and will act as transfer and processing agent for Equipment
or Applicable Security which it repossesses. The Servicer will follow such other
practices and procedures, consistent with the Servicing Standard, in order to
realize upon such Equipment or Applicable Security, which practices and
procedures may include reasonable efforts to enforce all obligations of Obligors
and repossessing and selling such Equipment or Applicable Security at public or
private sale in circumstances other than those described in the preceding
sentence. Without limiting the generality of the foregoing, the Servicer may
sell any such Equipment or Applicable Security to the Servicer or its Affiliates
for a purchase price equal to the then fair market value thereof (determined by
the Servicer in its reasonable discretion). In any case in which any such
Equipment or Applicable Security has suffered damage, the Servicer will not
expend funds in connection with any repair or toward the repossession of such
Equipment or Applicable Security unless it determines in its discretion that
such repair and/or repossession will increase the Liquidation Proceeds by an
amount greater than
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the amount of such expenses. The Servicer will remit to the Collection
Account the Liquidation Proceeds received in connection with the transfer or
disposition of Equipment or Applicable Security relating to a Defaulted Contract
in accordance with Article VII hereof.
Section 5.16. Maintenance of Insurance Policies. The Servicer will use
reasonable efforts, consistent with the Servicing Standard, to ensure that each
Obligor complies with applicable insurance requirements set forth in the related
Contract; provided that the Servicer, in accordance with Customary Policies and
Procedures, may allow Obligors to self-insure. If an Obligor fails to maintain
property damage insurance to the extent required under its Contract, the
Servicer may, consistent with Customary Policies and Procedures, purchase and
maintain such insurance on behalf of, and at the expense of (if the applicable
Contract so provides), the Obligor. In connection with its activities as
Servicer of Contracts in the Contract Pool, the Servicer agrees to present, on
behalf of itself, the Trust and the Noteholders or Equity Certificateholders,
claims to the insurer under each Insurance Policy and any such liability policy,
and to settle, adjust and compromise such claims, in each case, consistent with
the terms of each Contract.
Section 5.17. Certain Other Duties With Respect to Trust. The Servicer
shall, and hereby agrees that it will, monitor the Trust's compliance with all
applicable provisions of state and federal securities laws, notify the Trust and
the Administrator of any actions to be taken by the Trust necessary for
compliance with such laws and prepare on behalf of the Trust and the
Administrator all notices, filings or other documents or instruments required to
be filed under such laws.
Section 5.18. Servicing Compensation. As compensation for its servicing
activities with respect to the Contract Pool, and also in consideration of its
expenses as set forth in Section 5.19, the Servicer shall be entitled to receive
a servicing fee in respect of any Collection Period (or portion thereof) (with
respect to each Collection Period, the "Servicing Fee"), equal to the sum of (i)
one-twelfth of the product of (A) the Servicing Fee Percentage and (B) the
Contract Pool Principal Balance as of the first day of such Collection Period
and (ii) any amount described in the clause (iv) of the definition of "Excluded
Amounts."
Section 5.19. Payment of Certain Expenses by Servicer. The Servicer will be
required to pay all expenses incurred by it in connection with its activities
under this Agreement, including fees and disbursements of independent
accountants, counsel, the Owner Trustee, the Indenture Trustee, taxes imposed on
the Servicer, expenses incurred in connection with payments and reports pursuant
to this Agreement, and all other fees and expenses not expressly stated under
this Agreement (including ongoing fees and expenses of the Owner Trustees) to be
for the account of the Trust or the Depositor, but excluding Liquidation
Expenses incurred as a result of activities contemplated by Section 5.15 (which
may be netted from Liquidation Proceeds). The Servicer will be required to pay
all reasonable fees and expenses owing to the Owner Trustee or the Indenture
Trustee in connection with the maintenance of the Collection Account. The
Servicer shall be required to pay such expenses for its own account and shall
not be entitled to any payment or reimbursement therefor other than the
Servicing Fee, payable from Collections as provided herein.
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Section 5.20. Records. The Servicer shall, during the period it is Servicer
hereunder, maintain such books of account and other records as will enable the
Trust or the Administrative Agent to determine the status of each Contract in
the Contract Pool.
Section 5.21. Inspection. (a) The Servicer shall afford the Owner Trustee
and the Indenture Trustee and their respective authorized agents not more
frequently than once during each calendar year at the Servicer's expense, not to
exceed $1,000 in expenses and upon reasonable prior written request, reasonable
access during normal business hours to the Servicer's records relating to the
Contracts in the Contract Pool, and will cause its personnel to assist in any
examination of such records by any such Person, and allow copies of the same to
be made. The examination referred to in this Section will be conducted in a
manner which does not unreasonably interfere with the Servicer's normal
operations or customer or employee relations. Without otherwise limiting the
scope of the examination, such examining party may, using generally accepted
audit procedures, verify the status of each such Contract and review the
Computer Disk and records relating thereto for conformity to reports prepared by
the Servicer pursuant to Article IX hereof, and compliance with the standards
represented to exist as to each such Contract in this Agreement and the other
Transaction Documents.
(b) At all times during the term hereof, the Servicer shall keep
available a copy of the Schedule of Contracts at its principal executive office
for inspection by any such party referred to in subsection (a) of this Section
5.21.
Section 5.22. Trust To Cooperate in Releases. At the same time as (i) any
Lease in the Contract Pool terminates and the Equipment related to such Lease is
sold, (ii) any Contract in the Contract Pool becomes a Prepaid Contract and in
connection therewith the Equipment related to such Prepaid Contract is sold,
(iii) the final Scheduled Payment is made in full on a Contract in the Contract
Pool, (iv) a Contract previously in the Contract Pool becomes a Replaced
Contract in accordance with Section 2.04, or is repurchased by deposit of a
Purchase Amount as provided herein, or (v) the Servicer substitutes or replaces
any unit of Equipment as contemplated in Section 5.03, the Trust shall to the
extent requested by the Servicer release the Trust's interest in the Equipment
relating to such affected Contract or such substituted or replaced Equipment, as
the case may be; provided that such release will not constitute a release of the
Trust's interest in the proceeds of Equipment the subject of a Contract still in
the Contract Pool (other than with respect to Equipment that is replaced
pursuant to Section 5.03). In connection with any transfer of such Equipment,
the Trust and the Indenture Trustee shall execute and deliver to the Servicer
any assignments, bills of sale, termination statements and any other releases
and instruments as the Servicer may request and prepare at its expense in order
to effect such release and transfer; provided that neither the Trust nor the
Indenture Trustee shall be deemed to make any representation or warranty,
express or implied, with respect to any such Equipment in connection with such
transfer and assignment. Nothing in this Section 5.22 shall diminish the
Servicer's obligations pursuant to Article VII with respect to the proceeds of
any such transfer.
Section 5.23. Separate Entity Existence. The Servicer agrees to take or
refrain from taking or engaging in with respect to the Depositor, as applicable,
each of the actions or activities specified in the "substantive
nonconsolidation" opinion of Schulte Roth & Zabel LLP
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(or in any related Certificate of Financial) delivered on the Closing Date,
upon which the conclusions expressed therein are based.
Section 5.24. Assignment of Servicing. The Servicer may sell, transfer,
assign or convey its rights as Servicer to any Eligible Servicer, upon written
notice to the Trustees and the Rating Agencies, without the consent of the
Securityholders or the Trustees, provided that the Rating Agency Condition is
satisfied. No such sale, transfer, assignment or conveyance shall become
effective until such Eligible Servicer shall have assumed all of the
responsibilities and obligations of the Servicer under the Transaction
Documents.
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ARTICLE VI
COVENANTS OF THE DEPOSITOR
Section 6.01. LLC Existence. During the term of this Agreement, the
Depositor will keep in full force and effect its existence, rights and
franchises as a limited liability company under the laws of the jurisdiction of
its formation and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the other Transaction
Documents and each other instrument or agreement necessary or appropriate to the
proper administration of this Agreement and the transactions contemplated
hereby. In addition, all transactions and dealings between the Depositor and its
Affiliates will be conducted on an arm's-length basis.
Section 6.02. Contracts Not to be Evidenced by Promissory Notes. The
Depositor will take no action to cause any Contract not originally consisting of
or evidenced by an instrument (except to the extent part of chattel paper) (as
such terms are defined in the UCC), to be evidenced by an instrument, except in
connection with the enforcement or collection of such Contract.
Section 6.03. Security Interests. The Depositor will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur, assume or
suffer to exist any Lien on any Contract in the Contract Pool or on any other
Trust Asset or on any related Equipment, whether now existing or hereafter
transferred to the Trust, or any interest therein (except for Permitted Liens).
The Depositor will immediately notify the Trust and the Indenture Trustee of the
existence of any Lien (other than Permitted Liens) on any Contract in the
Contract Pool or on any other Trust Assets or on any related Equipment; and the
Depositor shall defend the right and interest of the Trust in, to and under the
Contracts in the Contract Pool and the related Equipment, against all claims of
third parties; provided, however, that nothing in this Section 6.03 shall
prevent or be deemed to prohibit (i) the Depositor from suffering to exist
Permitted Liens upon any of the Contracts in the Contract Pool or any related
Equipment, or (ii) repurchases or substitutions by Financial pursuant to the
Purchase and Sale Agreements.
Section 6.04. Delivery of Collections. The Depositor agrees to pay to the
Servicer promptly any misdirected Collections received by the Depositor in
respect of the Contracts in the Contract Pool, for application in accordance
with Article VII.
Section 6.05. Regulatory Filings. The Depositor shall make any filings,
reports, notices, applications and registrations with, and seek any consents or
authorizations from, the United States Securities and Exchange Commission and
any state securities authority on behalf of the Trust as may be necessary or
that the Depositor deems advisable to comply with any federal or state
securities or reporting requirements or laws.
Section 6.06. Compliance With Law. Depositor hereby agrees to comply in all
material respects with all Requirements of Law applicable to the Depositor.
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Section 6.07. Activities. The Depositor shall not engage in any business or
activity of any kind, or enter into any transaction or indenture, mortgage,
instrument, agreement, contract, lease or other undertaking, which is not
directly related to the transactions contemplated and authorized by this
Agreement or the other Transaction Documents; provided, however, that the
Depositor may purchase and sell (or grant Liens in respect of) contracts and/or
other related assets similar to the Contracts to other Persons in securitization
or other non-recourse financing transactions involving TCC, Financial or any of
their Affiliates on terms and conditions (with respect to the liabilities
imposed upon the Depositor by virtue of such transactions, as well as in respect
of agreements or restrictions concerning activities of the Depositor and its
relations or interactions with TCC or a Financing Originator or other applicable
Affiliate relevant to "bankruptcy remoteness" or "substantive consolidation"
analysis), in each case substantially similar to such terms and conditions
applicable to the Depositor hereunder and under the other Transaction Documents.
Section 6.08. Indebtedness. The Depositor shall not create, incur, assume
or suffer to exist any Indebtedness or other liability whatsoever, except (i)
obligations incurred under this Agreement or other Transaction Documents, or
incidental thereto, or (ii) liabilities incident to the maintenance of its
corporate existence in good standing, or (iii) obligations in connection with
transactions described in the proviso to Section 6.07, as limited thereby.
Section 6.09. Guarantees. The Depositor shall not become or remain liable,
directly or contingently, in connection with any Indebtedness or other liability
of any other Person, whether by guarantee, endorsement (other than endorsements
of negotiable instruments for deposit or collection in the ordinary course of
business), agreement to purchase or repurchase, agreement to supply or advance
funds, or otherwise, except as contemplated hereby and in connection with
transactions described in Section 6.07, as limited thereby.
Section 6.10. Investments. The Depositor shall not make or suffer to exist
any loans or advances to, or extend any credit to, or make any investments (by
way of transfer of property, contributions to capital, purchase of stock or
securities or evidences of indebtedness, acquisition of the business or assets,
or otherwise) in, any Person except (i) for purchases or other acquisitions of
Contracts and related Contract Assets pursuant to the Purchase and Sale
Agreements or purchases or other acquisitions of similar contracts and related
assets permitted by Section 6.07, or (ii) the holding of ownership interests in
Equipment contemplated herein or in transactions permitted by Section 6.07, or
(iii) for investments in Eligible Investments in accordance with the terms of
this Agreement.
Section 6.11. Merger; Transfers. The Depositor shall not enter into any
transaction of merger or consolidation, or liquidate or dissolve itself (or
suffer any liquidation or dissolution) or acquire or be acquired by any Person,
or convey, sell, lease or otherwise dispose of all or substantially all of its
property or business, except as provided for in this Agreement.
Section 6.12. Payments. The Depositor shall not declare or pay, directly or
indirectly, any dividend or make any other payment (whether in cash or other
property) with respect to the profits, assets or capital of the Depositor or any
Person's interest therein, or purchase, redeem or otherwise acquire for value
any of its equity ownership interests now or
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hereafter outstanding, except that the Depositor may effect payments of its
earnings in respect of Trust Assets to its members in each case so long as it
would continue to be Solvent after giving effect thereto, and otherwise in
accordance with the Transaction Documents.
Section 6.13. Other Agreements. The Depositor shall not become a party to,
or permit any of its properties to be bound by, any indenture, mortgage,
instrument, contract, agreement, lease or other undertaking, except this
Agreement and the other Transaction Documents to which it is a party and any
agreement relating to another securitization transaction permitted by Section
6.07; nor shall it amend or modify the provisions of its Certificate of
Formation or Limited Liability Company Agreement except in accordance with the
Transaction Documents and with the consent of the Required Holders, or issue any
power of attorney except to the Owner Trustee, the Indenture Trustee or the
Servicer pursuant to the Transaction Documents (or other similar powers of
attorney in connection with transactions permitted by the proviso to Section
6.07).
Section 6.14. Separate Entity Existence. The Depositor shall:
(i) Maintain its own deposit account or accounts, separate from those
of any Affiliate, with commercial banking institutions. The funds of the
Depositor will not be diverted to any other Person or for other than
authorized uses of the Depositor.
(ii) Ensure that, to the extent that it shares the same officers or
other employees as any of its members or Affiliates, the salaries of and
the expenses related to providing benefits to such officers and other
employees shall be fairly allocated among such entities, and each such
entity shall bear its fair share of the salary and benefit costs associated
with all such common officers and employees.
(iii) Ensure that, to the extent that it jointly contracts with any of
its members or Affiliates to do business with vendors or service providers
or to share overhead expenses, the costs incurred in so doing shall be
allocated fairly among such entities, and each such entity shall bear its
fair share of such costs. To the extent that the Depositor contracts or
does business with vendors or service providers when the goods and services
provided are partially for the benefit of any other Person, the costs
incurred in so doing shall be fairly allocated to or among such entities
for whose benefit the goods and services are provided, and each such entity
shall bear its fair share of such costs. All material transactions between
Depositor and any of its Affiliates shall be only on an arm's length basis.
(iv) To the extent that the Depositor and any of its members or
Affiliates have offices in the same location, there shall be a fair and
appropriate allocation of overhead costs among them, and each such entity
shall bear its fair share of such expenses.
(v) Conduct its affairs strictly in accordance with its Limited
Liability Company Agreement and its Certificate of Formation, and observe
all necessary,
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appropriate and customary limited liability company formalities,
including, but not limited to, holding all regular and special members' and
manager/directors' meetings appropriate to authorize all entity action,
keeping separate and accurate records of such meetings and its actions,
passing all resolutions or consents necessary to authorize actions taken or
to be taken, and maintaining accurate and separate books, records and
accounts, including, but not limited to, payroll and intercompany
transaction accounts.
(vi) Take or refrain from taking or engaging in, as applicable, each
of the actions or activities specified in the "true sale" and "substantive
nonconsolidation" opinions of Schulte Roth & Zabel LLP delivered on the
Closing Date (or in any related certificate delivered in connection
therewith), upon which the conclusions expressed therein are based.
Section 6.15. Location; Records. The Depositor shall not move outside the
State of New Jersey, the location of its chief executive office, without thirty
(30) days' prior written notice to the Trust, the Indenture Trustee and the
Servicer, and will promptly take all actions required (including, but not
limited to, all filings and other acts necessary or advisable under the UCC of
each relevant jurisdiction) in order to continue the first priority perfected
security interest of the Indenture Trustee in Trust Assets. The Depositor will
give the Indenture Trustee, the Trust and the Servicer prompt notice of a change
within the State of New Jersey of the location of its chief executive office.
Section 6.16. Liability of Depositor; Indemnities. The Depositor shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Depositor under this Agreement.
The Depositor shall indemnify, defend and hold harmless the Trust, the
Owner Trustee (including in its individual capacity), the Indenture Trustee
(including in its individual capacity) and the Servicer (and any of their
respective officers, directors, employees or agents) from and against any taxes
that may at any time be asserted against any such Person with respect to the
transactions contemplated herein and in the other Transaction Documents,
including any sales, gross receipts, general corporation, tangible personal
property, personal property replacement privilege or license taxes (but, in the
case of the Trust, not including any taxes asserted with respect to, and as of
the date of, the transfer of Contracts to the Trust or the issuance and original
sale of the Notes, or asserted with respect to ownership of Contract Assets, or
federal or other income taxes arising out of payments from Collections on the
Trust Assets) and costs and expenses in defending against the same.
The Depositor shall indemnify, defend and hold harmless the Trust, the
Owner Trustee (including in its individual capacity), the Indenture Trustee
(including in its individual capacity) and the Servicer (and any of their
respective officers, directors, employees or agents) and the Securityholders
from and against any loss, liability or expense incurred by reason of the
Depositor's willful misfeasance, bad faith or gross negligence (other than
errors in judgment) in the performance of its duties under this Agreement, or by
reason of reckless disregard of its obligations and duties under this Agreement.
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The Depositor shall indemnify, defend and hold harmless the Trust, the
Owner Trustee (including in its individual capacity), the Indenture Trustee
(including in its individual capacity) and the Servicer (and any of their
respective officers, directors, employees or agents) and any Noteholders from
and against all costs, expenses, losses, claims, damages and liabilities arising
out of or incurred in connection with the acceptance or performance (or failure
of performance) of the trusts and duties herein and, in the case of the Owner
Trustee, in the Trust Agreement and, in the case of the Indenture Trustee, in
the Indenture, except to the extent that such cost, expense, loss, claim, damage
or liability in the case of (i) the Owner Trustee shall be due to the willful
misfeasance, bad faith or negligence of the Owner Trustee, or shall arise from
the breach by the Owner Trustee of any of its representations or warranties set
forth in Section 7.03 of the Trust Agreement, or (ii) the Indenture Trustee
shall be due to the willful misfeasance, bad faith or negligence of the
Indenture Trustee.
The Depositor shall be liable directly to and will indemnify any injured
party or any other creditor of the Trust for all losses, claims, damages,
liabilities and expenses of the Trust to the extent that the Depositor would be
liable if the Trust were a partnership under the Delaware Revised Uniform
Limited Partnership Act in which the Depositor were a general partner; provided,
however, that the Depositor shall not be liable for any losses incurred by the
Equity Certificateholder in the capacity of an investor in the Equity
Certificate or a Noteholder in the capacity of an investor in the Notes. In
addition, any third party creditors of the Trust (other than in connection with
the obligations described in the immediately preceding sentence for which the
Depositor shall not be liable) shall be deemed third party beneficiaries of this
paragraph. The obligation of the Depositor under this paragraph shall be
evidenced by the Equity Certificate.
The Depositor shall indemnify, defend and hold harmless the Owner Trustee
(including in its individual capacity) and the Indenture Trustee (including in
its individual capacity) from and against any loss, liability or expense
incurred by reason of the Depositor's or Trust's violation of federal or state
securities laws in connection with the offering and sale of the Notes and the
Certificate.
Indemnification under this Section shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation; provided,
however, that the indemnification under this Section, notwithstanding anything
to the contrary, is limited to the assets of the Depositor (including its rights
under Article VI of the Substitute VFC Purchase Agreement; Article VI of the
Non-VFC Purchase Agreement or Article VI of the VFC Purchase Agreement);
provided, further, any indemnity payments to be made pursuant to this Section
shall not be made from the Trust Assets (except to the extent any of the same
have been distributed to the Depositor free and clear of any interest of the
Trust therein and except to the extent Financial as co-obligor is obligated to
make such payment pursuant to Article VI of the Substitute VFC Purchase
Agreement; Article VI of the Non-VFC Purchase Agreement or Article VI of the VFC
Purchase Agreement), and such indemnity payments, if unpaid, shall not
constitute a claim against the Trust or the Trust Assets (except in respect of
rights against Financial in respect of the aforementioned Articles of the
Purchase and Sale Agreements). If the Depositor (or Financial pursuant to the
aforementioned Articles of the Purchase and Sale Agreements) shall have made any
indemnity payments pursuant to this Section and the Person to or on behalf of
whom such
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payments are made thereafter shall collect any of such amounts from others,
such Person shall promptly repay such amounts to the Depositor (or Financial, as
applicable), without interest.
Indemnification under this Section shall survive the resignation or removal
of the Owner Trustee or the Indenture Trustee, as the case may be, and the
termination of this Agreement.
Section 6.17. Bankruptcy Limitations. The Depositor shall not, without the
affirmative vote of each of the manager/directors of the Depositor (which must
include the affirmative vote of at least one duly appointed Independent Director
as defined in the Certificate of Formation and the Limited Liability Company
Agreement of the Depositor) (A) dissolve or liquidate, in whole or in part, or
institute proceedings to be adjudicated bankrupt or insolvent, (B) consent to
the institution of bankruptcy or insolvency proceedings against it, (C) file a
petition seeking or consent to reorganization or relief under any applicable
federal or state law relating to bankruptcy, (D) consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Depositor or a substantial part of its property, (E) make a
general assignment for the benefit of creditors, (F) admit in writing its
inability to pay its debts generally as they become due, or (G) take any entity
action in furtherance of the actions set forth in clauses (A) through (F) above;
provided, however, that no manager/director may be required by any member of the
Depositor to consent to the institution of bankruptcy or insolvency proceedings
against the Depositor so long as it is Solvent.
Section 6.18. Limitation on Liability of Depositor and Others. The
Depositor and any director or officer or employee or agent of the Depositor may
rely in good faith on any document of any kind, prima facie properly executed
and submitted by any Person respecting any matters arising hereunder. The
Depositor shall not be under any obligation to appear in, prosecute or defend
any legal action that shall not be incidental to its obligations under this
Agreement, and that in its opinion may involve it in any expense or liability.
Section 6.19. Chief Executive Office. During the term of this Agreement,
the Depositor will maintain its chief executive office in one of the States of
the United States, except Louisiana, Tennessee, Colorado, Kansas, New Mexico,
Oklahoma, Utah or Wyoming.
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ARTICLE VII
ESTABLISHMENT OF ACCOUNTS; PAYMENTS
Section 7.01. Trust Accounts; Collections. (a) On or before the
Closing Date, the Depositor (or the Servicer on its behalf) shall cause the
Indenture Trustee to establish the Class A Principal Account, the Class A-2a
Funding Account, the Collection Account, the Note Distribution Account and the
Cash Collateral Account, each in the name of the Indenture Trustee for the
benefit of the Noteholders and the Equity Certificateholder. The Servicer is
hereby required to ensure that each of the Trust Accounts is established and
maintained as a segregated corporate trust account with a Qualified Institution.
If any institution with which any of the accounts established pursuant to this
Section 7.01(a) ceases to be a Qualified Institution, the Servicer shall within
30 days after notice of such event establish a replacement account at a
Qualified Institution, and effect (or cause to be effected) a concurrent
transfer of all amounts in the current non-qualifying account to the replacement
account.
(b) (i) Subject to subsection 7.01(b)(ii) hereof, the Servicer shall
deposit or cause to be deposited, without deposit into any intervening account,
into the Collection Account as promptly as practical after the Date of
Processing (but in any case not later than the second Business Day following the
Date of Processing thereof), all Pledged Revenues on deposit with the Servicer
in the form of available funds, and all Pledged Revenues otherwise received by
the Servicer (and all Investment Earnings from investments of the Collection
Account).
(ii) Notwithstanding anything in this Agreement to the contrary,
for so long as, and only so long as,
(A) the Servicer or the direct or indirect parent of the
Servicer shall have and maintain a short-term debt rating of at
least A-1 by Standard & Poor's and either a short-term debt
rating of P-1 or a long-term debt rating of at least A2 by
Moody's, or
(B) the Servicer obtains a letter of credit, surety bond or
insurance policy (the "Servicer Letter of Credit") under which
demands for payment may be made to secure timely remittance of
monthly collections to the Collection Account and the Trustees
are provided with a letter from each Rating Agency to the effect
that the utilization of such alternative remittance schedule and
any amendment required to be made to this Agreement in connection
therewith will not result in a qualification, reduction or
withdrawal of its then-current rating of the Notes,
the Servicer may make the deposits to the Collection Account specified in
subsection 7.01(b)(i) hereof on a monthly basis, but not later than the Deposit
Date following the last day of the Collection Period within which such payments
were processed by the Servicer, in an amount equal to the net amount of such
deposits and payments which would have been made to the
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Collection Account during such Collection Period but for the provisions of this
subsection 7.01(b)(ii). In the event that the Servicer is permitted to make
remittances of collections to the Collection Account pursuant to Section
7.01(b)(ii)(B) hereof, this Agreement may be modified, to the extent necessary
to provide for the Servicer Letter of Credit, without the consent of any
Securityholder. The Servicer shall notify the Trustees if the Servicer no longer
complies with the requirements set forth in clause (A) or (B) above.
(c) Subject to Section 7.01(b)(ii), the Servicer shall deposit or
cause to be deposited, on the Closing Date and on each Substitution Transfer
Date, in immediately available funds into the Collection Account, all Pledged
Revenues received after the applicable Cut-Off Date and through and including
the date which is two Business Days preceding the Closing Date or Substitution
Transfer Date, as the case may be, in respect of Contracts being transferred to
the Trust on such date.
(d) Notwithstanding Sections 7.01(b) and (c), if (i) the Servicer
makes a deposit into the Collection Account in respect of Pledged Revenues of a
Contract in the Contract Pool and such Pledged Revenues were received by the
Servicer in the form of a check which is not honored for any reason, or (ii) the
Servicer makes a mistake with respect to the amount of any Pledged Revenues and
deposits an amount that is less than or more than the actual amount of such
Collection, the Servicer shall appropriately adjust the amount subsequently
deposited into the Pledged Revenues Account to reflect such dishonored check or
mistake. Any Scheduled Payment in respect of which a dishonored check is
received shall be deemed not to have been paid.
(e) All amounts received by the Indenture Trustee pursuant to the
Class A-3 Swap Agreement shall be deposited into the Note Distribution Account
for the benefit of the Class A-3 Noteholders.
(f) All amounts received by the Indenture Trustee pursuant to the
Class A-2 Swap Agreement shall be deposited into the Note Distribution Account
for the benefit of the Class A-2a and Class A-2b (but only after the Class A-2a
Maturity Date) Noteholders.
(g) All proceeds received by the Indenture Trustee from the sale of
the Class A-2b Notes shall be deposited into the Class A-2a Funding Account. If
additional Class A-2b Notes are issued pursuant to Section 2.14 of the
Indenture, the Indenture Trustee shall establish a subaccount of the Class A-2a
Funding Account and deposit the proceeds of the sale of the additional Class
A-2b Notes into such subaccount.
Section 7.02. Cash Collateral Account. (a) On the Closing Date, the
Depositor shall deposit the sum of $32,275,797 into the Cash Collateral Account
from the net proceeds of the sale of the Notes and the Indenture Trustee shall
deposit into the Cash Collateral Account proceeds received by the Indenture
Trustee of loans made by the Cash Collateral Account Lenders equal to
$9,492,882.
(b) If on any Payment Date, the amounts on deposit in the Cash
Collateral Account (after giving effect to all deposits thereto or withdrawals
therefrom on such
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Payment Date) is greater than the Required Cash Collateral Amount, the Indenture
Trustee upon receipt of written instructions from the Servicer shall distribute
the excess of the amount on deposit in the Cash Collateral Account over the
Required Cash Collateral Amount as provided in the Cash Collateral Account
Agreement. Amounts properly distributed pursuant to the prior sentence shall be
deemed released from the Trust Estate and the security interest herein granted
to the Indenture Trustee, and the Trust shall in no event be required to refund
such distributed amounts.
Section 7.03. Trust Account Procedures. If the Servicer so directs, in
writing (with a copy to the Owner Trustee and the Indenture Trustee), the
Qualified Institution maintaining any Trust Account, other than the Class A-2a
Funding Account, shall invest the amounts therein in Eligible Investments of the
type specified in such written direction that mature not later than one Business
Day prior to the next succeeding Payment Date (or that mature on such earlier
Business Day as the Rating Agencies shall approve, with a copy of such approval
provided to the Indenture Trustee). The Servicer shall direct the Indenture
Trustee to invest the amounts in the Class A-2a Funding Account in the
commercial paper of VFCC so long as such commercial paper is rated A-1 or higher
by Standard & Poor's and P-1 by Moody's and that matures on or prior to the
Class A-2a Maturity Date. If such commercial paper is downgraded below A-1 by
Standard & Poor's or P-1 by Moody's, the Servicer shall instruct the Indenture
Trustee to invest the amounts in the Class A-2a Funding Account in Eligible
Investments that are rated A-1 or higher by Standard & Poor's and P-1 by
Moody's, but only if and when an investment in the commercial paper obligations
of VFCC matures, and that matures no later than one Business Day prior to the
Class A-2a Maturity Date. Once such funds of any Trust Account are invested,
except as provided in the preceding sentence, the Servicer shall not change or
permit a change in the investment of such funds. Subject to the other provisions
hereof, the Indenture Trustee shall have sole control over each such investment
and the income thereon, and any certificate or other instrument evidencing any
such investment, if any, shall be delivered directly to the Indenture Trustee or
its agent, together with each document of transfer, if any, necessary to
transfer title to such investment to the Indenture Trustee in a manner which
complies with this Section 7.03. All Investment Earnings on investments of funds
in the Collection Account and Note Distribution Account shall be deposited in or
maintained within the Collection Account pursuant to Section 7.01 and
distributed on the next Payment Date pursuant to Section 7.05. All Investment
Earnings in the Cash Collateral Account shall be distributed in accordance with
the Cash Collateral Account Agreement. On each Deposit Date, all Investment
Earnings for the related Collection Period on investments of funds in the Class
A-2a Funding Account shall be deposited in the Collection Account. On each
Deposit Date, all amounts on deposit in the Class A Principal Account (including
all Investment Earnings thereon) shall be deposited in the Collection Account.
The Servicer, the Depositor and the Trust agree and acknowledge that the
Indenture Trustee is to have "control" (within the meaning of Section 8-102 of
the UCC as enacted in New York) of collateral consisting of "Investment
Property" (within the meaning of Section 9-115 of the UCC as enacted in New
York) for all purposes of this Agreement. In the absence of timely written
direction from the Servicer, the Indenture Trustee shall invest or cause to be
invested amounts in the Trust Accounts in Eligible Investments of the type
specified in clause (vi) of the definition of Eligible Investments herein. The
Indenture
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Trustee shall not be liable for investment losses in Eligible Investments as
directed by the Servicer.
Section 7.04. Securityholder Payments. (a) On each Payment Date, each
Noteholder and the Equity Certificateholder as of the related Record Date shall
be paid amounts payable on such date pursuant to Section 7.05 below by check
mailed to such Noteholder or the Equity Certificateholder at the address for
such Noteholder or the Equity Certificateholder appearing on the Note Register
or the Certificate Register, or by wire transfer if such Noteholder or the
Equity Certificateholder has provided written instructions for such payment
method to the Indenture Trustee and Owner Trustee, respectively, at least ten
days prior to such Payment Date.
(b) The Indenture Trustee shall serve as the Paying Agent
hereunder and shall make the payments to the Noteholders and the Equity
Certificateholder required hereunder. The Indenture Trustee hereby agrees that
all amounts held by it for payment hereunder will be held in trust for the
benefit of the Noteholders and the Equity Certificateholder, as their interests
may appear.
Section 7.05. Allocations and Payments.
(a) Distributions from Collection Account. On each Payment Date,
the Indenture Trustee shall (based solely on the information contained in the
Servicer's Monthly Report delivered on the related Determination Date, upon
which the Indenture Trustee may conclusively rely) distribute the following
amounts and in the order of priority specified below. Within each order of
priority, amounts shall be deemed withdrawn first from Available Pledged
Revenues, and second (but only as to amounts described in clauses (ii) and (iii)
below) from amounts deposited in the Collection Account pursuant to Section 7.02
and 7.05(d).
(i) first, from the Available Pledged Revenues then on
deposit in the Collection Account, to the Servicer, the Servicing
Fee and the reimbursement for Servicer Advances for the related
Collection Period and any amounts specified in Section 2.05
hereof, to the extent the Servicer has not reimbursed itself in
respect of such amounts;
(ii) second, from the Amount Available then remaining on
deposit in the Collection Account, to the Note Distribution
Account an amount equal to the Note Interest Distributable Amount
for such Payment Date (assuming for this purpose that the Class
A-2a Notes bear interest at the Class A-2 Assumed Fixed Rate, the
Class A-2b Notes after the Class A-2a Maturity Date bear interest
at the Class A-2 Assumed Fixed Rate and the Class A-3 Notes bear
interest at the Class A-3 Assumed Fixed Rate);
(iii) third, from the Amount Available then remaining on
deposit in the Collection Account, to the Note Distribution
Account, an amount equal to the Note Principal Distributable
Amount for such Payment Date;
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(iv) fourth, from the Amount Available then remaining on
deposit in the Collection Account, to the Cash Collateral
Account, the amount, if any, necessary to increase the balance
therein to the Required Cash Collateral Amount;
(v) fifth, from the Amount Available then remaining on
deposit in the Collection Account, to the parties entitled
thereto in accordance with the Cash Collateral Account Agreement,
any amounts due and unpaid thereunder; and
(vi) sixth, from the Amount Available then remaining on
deposit in the Collection Account, to payment of any shortfalls
in the payment of interest on the Class A-2 Notes due to the
failure of the Class A-2 Swap Counterparty to pay amounts payable
to the Indenture Trustee under the Class A-2 Swap Agreement,
together with interest on such shortfalls at the Class A-2a
Interest Rate or the Class A-2b Interest Rate, as applicable, and
to payment of any shortfalls in the payment of interest on the
Class A-3 Notes due to the failure of the Class A-3 Swap
Counterparty to pay amounts payable to the Indenture Trustee
under the Class A-3 Swap Agreement, together with interest on
such shortfalls at the Class A-3 Interest Rate, pro rata; and
(vii) seventh, any remaining Amount Available to the
Indenture Trustee for distribution to the Equity
Certificateholder.
In the event the Servicer's Monthly Report shows that, as of any Determination
Date, there are amounts on deposit in the Collection Account which do not
constitute Pledged Revenues due to clause (ii)(b) of the definition thereof and
to which the Depositor is entitled pursuant to Section 2.04 hereof, the
Indenture Trustee shall forthwith pay such amount to or upon the written order
of the Depositor.
(b) Allocations and Payments Prior to an Event of Default. On
each Determination Date prior to an Event of Default, the Servicer, pursuant to
written monthly payment instructions and notification, shall instruct the
Indenture Trustee to withdraw and transfer, and on the succeeding Payment Date
the Indenture Trustee acting in accordance with such written instructions shall
withdraw and transfer, the amounts required to be withdrawn from the Note
Distribution Account in order to make the following payments or allocations from
the Amount Available for the related Payment Date (in each case, such payment or
transfer to be made only to the extent funds remain available therefor after all
prior payments and transfers for such Payment Date have been made), in the
following order of priority:
(i) pay to the Indenture Trustee on behalf of the Class A-1
Noteholders, Class A-2a Noteholders, Class A-2b Noteholders,
Class A-3 Noteholders, and the Class A-4 Noteholders, an amount
equal to interest accrued in respect of the related Class A-1
Notes at the Class A-1 Interest Rate, Class A-2a Notes at the
Class A-2 Assumed Fixed Rate, Class A-2b
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Notes on or prior to the Class A-2a Maturity Date at a rate which
yields an amount equal to the Investment Earnings of the Class
A-2a Funding Account and thereafter at the Class A-2 Assumed
Fixed Rate, Class A-3 Notes at the Class A-3 Assumed Fixed Rate,
and Class A-4 Notes at the Class A-4 Interest Rate for the
Accrual Period immediately preceding such Payment Date, together
with any such amounts that accrued in respect of prior accrual
periods for which no allocation was previously made; provided
that if the Amount Available remaining to be allocated pursuant
to this clause is less than the full amount required to be so
allocated, such remaining Amount Available shall be allocable to
the Holders of the Class A-1 Notes, Class A-2a Notes, Class A-2b
Notes, Class A-3 Notes and the Class A-4 Notes pro rata based
upon the then-outstanding Principal Amount thereof; provided
further that if on the relevant Payment Date any amount is
payable to the Class A-2 Swap Counterparty under the Class A-2
Swap Agreement the Indenture Trustee shall (pursuant to the
written instructions of the Servicer), from the amount available
to pay interest on the Class A-2a and Class A-2b (but only after
the Class A-2a Maturity Date) Notes pursuant to this clause (i),
apply such amount first to pay the Class A-2 Swap Counterparty
and thereafter apply the balance of such amount available to the
payment of interest on the Class A-2 Notes, provided further that
if on the relevant Payment Date any amount is payable to the
Class A-3 Swap Counterparty under the Class A-3 Swap Agreement
the Indenture Trustee shall (pursuant to the written instructions
of the Servicer), from the amount available to pay interest on
the Class A-3 Notes pursuant to this clause (i), apply such
amount first to pay the Class A-3 Swap Counterparty and
thereafter apply the balance of such amount available to the
payment of interest on the Class A-3 Notes. If on the date of any
such distribution, any amount is payable to the Indenture Trustee
under the Class A-2 Swap Agreement, the Indenture Trustee shall
(pursuant to the written instructions of the Servicer) apply all
of the amount available to pay interest on the Class A-2a and
Class A-2b (but only after the Class A-2a Maturity Date) Notes
pursuant to this clause (i) together with any amount received
under the Class A-2 Swap Agreement to the payment of interest on
the Class A-2a and Class A-2b (but only after the Class A-2a
Maturity Date) Notes. If on the date of any such distribution,
any amount is payable to the Indenture Trustee under the Class
A-3 Swap Agreement, the Indenture Trustee shall (pursuant to the
written instructions of the Servicer) apply all of the amount
available to pay interest on the Class A-3 Notes pursuant to this
clause (i) together with any amount received under the Class A-3
Swap Agreement to the payment of interest on the Class A-3 Notes.
All instructions required to be provided by the Servicer are
deemed given if included in the Monthly Report or in a separate
writing.
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(ii) pay to the Indenture Trustee on behalf of the Class B
Noteholders an amount equal to the Class B Interest Distributable
Amount; provided, that if the Amount Available remaining to be
allocated pursuant to this clause is less than the full amount
required to be so paid, such remaining Amount Available shall be
paid to the Holders of Class B Notes pro rata based on their
respective entitlement pursuant to this clause;
(iii) pay to the Indenture Trustee on behalf of the Class C
Noteholders, an amount equal to the Class C Interest
Distributable Amount; provided, that if the Amount Available
remaining to be allocated pursuant to this clause is less than
the full amount required to be so paid, such remaining Amount
Available shall be paid to the Holders of Class C Notes pro rata
based on their respective entitlement pursuant to this clause;
(iv) pay to the Indenture Trustee on behalf of the Class D
Noteholders an amount equal to the Class D Interest Distributable
Amount; provided, that if the Amount Available remaining to be
allocated pursuant to this clause is less than the full amount
required to be so paid, such remaining Amount Available shall be
paid to the Holders of Class D Notes pro rata based on their
respective entitlement pursuant to this clause;
(v) prior to the Payment Date on which the Principal Amount
of the Class A-1 Notes has been reduced to zero, pay to the
Indenture Trustee, on behalf of the Class A-1 Noteholders, the
Class A Principal Payment Amount;
(vi) on the Payment Date on which the Principal Amount of
the Class A-1 Notes shall be reduced to zero, pay to the
Indenture Trustee, on behalf of the Class A Noteholders, the
Class A Principal Payment Amount, allocated as follows:
(1) to the Class A-1 Noteholders, the remaining
Principal Amount of the Class A-1 Notes; and
(2) the remaining Class A Principal Payment Amount,
if any, to the Class A-2a Noteholders until the
Principal Amount of the Class A-2a Notes has been
reduced to zero, then to the Class A-2b
Noteholders until the Principal Amount
of the Class A-2b Notes has been reduced to zero,
then to the Class A-3 Noteholders until the
Principal Amount of the Class A-3 Notes has been
reduced to zero, then to the Class A-4 Noteholders
until the Principal Amount of the Class A-4 Notes
has been reduced to zero;
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(vii) after the Payment Date on which the Class A-1
Principal Balance has been reduced to zero, pay to the Indenture
Trustee, on behalf of the Class A Noteholders, the Class A
Principal Payment Amount, to the Class A-2a Noteholders until the
Principal Amount of the Class A-2a Notes has been reduced to
zero, then to the Class A-2b Noteholders until the Principal
Amount of the Class A-2b Notes has been reduced to zero, then to
the Class A-3 Noteholders until the Principal Amount of the Class
A-3 Notes has been reduced to zero, then to the Class A-3
Noteholders until the Principal Amount of the Class A-3 Notes has
been reduced to zero, then to the Class A-4 Noteholders until the
Principal Amount of the Class A-4 Notes has been reduced to zero;
(viii) pay to the Indenture Trustee on behalf of the Class B
Noteholders, the Class B Principal Payment Amount;
(ix) pay to the Indenture Trustee on behalf of the Class C
Noteholders, the Class C Principal Payment Amount;
(x) pay to the Indenture Trustee on behalf of the Class D
Noteholders, the Class D Principal Payment Amount; and
(xi) the Reallocated Principal, if any, to the Indenture
Trustee for the benefit, sequentially, of the Class A-1, Class
A-2a, Class A-2b, Class A-3, Class A-4, Class B, Class C, and
Class D Noteholders.
Notwithstanding the foregoing, any principal amounts payable to
the Class A-2a Noteholders pursuant to clause (vi) or (vii) above prior to the
Class A-2a Maturity Date shall be deposited into the Class A Principal Account.
(c) Allocations and Payments after an Event of Default. On each
Determination Date after the occurrence of an Event of Default, the Servicer,
pursuant to monthly payment instructions and notification, shall instruct the
Indenture Trustee to withdraw and transfer, and on the succeeding Payment Date
the Indenture Trustee acting in accordance with such instructions shall withdraw
and transfer, the amounts required to be withdrawn from the Note Distribution
Account in order to make the following payments or allocations from the Amount
Available for the related Payment Date (in each case, such payment or transfer
to be made only to the extent funds remain available therefor after all prior
payments and transfers for such Payment Date have been made), in the following
order of priority:
(i) pay to the Indenture Trustee on behalf of the Class A-1
Noteholders, Class A-2a Noteholders, Class A-2b Noteholders,
Class A-3 Noteholders, and the Class A-4 Noteholders, an amount
equal to interest accrued in respect of the related Class A-1
Notes at the Class A-1 Interest Rate, Class A-2a Notes at the
Class A-2 Assumed Fixed Rate, Class A-2b Notes on or prior to the
Class A-2a Maturity Date at a rate which yields an amount equal
to the Investment Earnings of the Class A-2a Funding
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Account and thereafter at the Class A-2 Assumed Fixed Rate, Class
A-3 Notes at the Class A-3 Assumed Fixed Rate, and Class A-4
Notes at the Class A-4 Interest Rate for the Accrual Period
immediately preceding such Payment Date, together with any such
amounts that accrued in respect of prior Accrual Periods for
which no allocation was previously made; provided that if the
Amount Available remaining to be allocated pursuant to this
clause is less than the full amount required to be so allocated,
such remaining Amount Available shall be allocable to the Holders
of the Class A-1 Notes, Class A-2a Notes, Class A-2b Notes, Class
A-3 Notes and Class A-4 Notes pro rata based upon the
then-outstanding Principal Amount thereof; provided further that
if on the relevant Payment Date any amount is payable to the
Class A-2 Swap Counterparty under the Class A-2 Swap Agreement,
the Indenture Trustee shall, from the amount available to pay
interest on the Class A-2a and Class A-2b (but only after the
Class A-2a Maturity Date) Notes pursuant to this clause (i),
apply such amount first to pay the Class A-2 Swap Counterparty,
and thereafter apply the balance of such amount available to the
payment of interest on the Class A-2a and Class A-2b (but only
after the Class A-2a Maturity Date) Notes, provided further that
if on the relevant Payment Date any amount is payable to the
Class A-3 Swap Counterparty under the Class A-3 Swap Agreement,
the Indenture Trustee shall, from the amount available to pay
interest on the Class A-3 Notes pursuant to this clause (i),
apply such amount first to pay the Class A-3 Swap Counterparty,
and thereafter apply the balance of such amount available to the
payment of interest on the Class A-3 Notes. If on the date of any
such distribution, any amount is payable to the Indenture Trustee
under the Class A-2 Swap Agreement, the Indenture Trustee shall
apply all of the amount available to pay interest on the Class
A-2a and Class A-2b (but only after the Class A-2a Maturity Date)
Notes pursuant to this clause (i) together with any amount
received under the Class A-2 Swap Agreement to the payment of
interest on the Class A-2a and Class A-2b (but only after the
Class A-2a Maturity Date) Notes at the Class A-2a Interest Rate
or Class A-2b Interest Rate, as applicable. Any shortfall in the
payment of interest on the Class A-2a and Class A-2b (but only
after the Class A-2a Maturity Date) Notes at the Class A-2a
Interest Rate or Class A-2b Interest Rate, as applicable, due
entirely to the failure of the Class A-2 Swap Counterparty to
make a required payment under the Class A-2 Swap Agreement will
not constitute an Event of Default under the Indenture and upon
such an occurrence, the Class A-2a and Class A-2b (but only after
the Class A-2a Maturity Date) Noteholders will only be entitled
to receive the Class A-2a Interest Distributable Amount or the
Class A-2b Interest Distributable Amount, as applicable, at the
Class A-2 Assumed Fixed Rate. If on the date of any such
distribution, any amount is payable to the Indenture Trustee
under the Class A-3 Swap Agreement, the Indenture Trustee shall
apply all of the amount available to pay interest on the Class
A-3 Notes pursuant to this
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clause (i) together with any amount received under the Class A-3
Swap Agreement to the payment of interest on the Class A-3 Notes
at the Class A-3 Interest Rate. Any shortfall in the payment of
interest on the Class A-3 Notes at the Class A-3 Interest Rate
due entirely to the failure of the Class A-3 Swap Counterparty to
make a required payment under the Class A-3 Swap Agreement will
not constitute an Event of Default under the Indenture and upon
such an occurrence, the Class A-3 Noteholders will only be
entitled to receive the Class A-3 Interest Distributable Amount
at the Class A-3 Assumed Fixed Rate. All instructions required to
be provided by the Servicer are deemed given if included in the
Monthly Report or in a separate writing.
(ii) pay to the Indenture Trustee on behalf of the Class B
Noteholders an amount equal to the interest accrued thereon at
the Class B Interest Rate for the Accrual Period immediately
preceding such Payment Date, together with any amounts that
accrued in respect of prior Accrual Periods for which no
allocation was previously made; provided, that if the Amount
Available remaining to be allocated pursuant to this clause is
less than the full amount required to be so paid, such remaining
Amount Available shall be paid to the Holder of each Class B Note
pro rata based on the outstanding Principal Amount thereof;
(iii) pay to the Indenture Trustee on behalf of the Class C
Noteholders, an amount equal to the interest accrued thereon at
the Class C Interest Rate for the Accrual Period immediately
preceding such Payment Date, together with any such amounts that
accrued in respect of prior Accrual Periods for which no
allocation was previously made; provided, that if the Amount
Available remaining to be allocated pursuant to this clause is
less than the full amount required to be so paid, such remaining
Amount Available shall be paid to the Holder of each Class C Note
pro rata based on the outstanding Principal Amount thereof;
(iv) pay to the Indenture Trustee on behalf of the Class D
Noteholders, an amount equal to the interest accrued thereon at
the Class D Interest Rate for the Accrual Period immediately
preceding such Payment Date, together with any such amounts that
accrued in respect of prior Accrual Periods for which no
allocation was previously made; provided, that if the Amount
Available remaining to be allocated pursuant to this clause is
less than the full amount required to be so paid, such remaining
Amount Available shall be paid to the Holder of each Class D Note
pro rata based on the outstanding Principal Amount thereof;
(v) pay to the Indenture Trustee, on behalf of the Class A-1
Noteholders, the Total Principal Payment Amount for such Payment
Date; provided (i) that if the Amount Available remaining to be
allocated pursuant to this clause is less than the full amount
required to be so paid,
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such remaining Amount Available shall be allocated to each Class
A-1 Note pro rata based on the outstanding Principal Amount
thereof and (ii) if the amount to be allocated pursuant to this
clause exceeds the amount needed to repay the outstanding
Principal Amount of the Class A-1 Notes in full, then such excess
shall be applied in repayment of principal on the Class A-2a
Notes;
(vi) pay to the Indenture Trustee, on behalf of the Class
A-2a Noteholders the Total Principal Payment Amount for such
Payment Date; provided (i) that if the Amount Available remaining
to be allocated pursuant to this clause is less than the full
amount required to be so paid, such remaining Amount Available
shall be allocated to each Class A-2a Note pro rata based on the
outstanding Principal Amount thereof and (ii) if the amount to be
allocated pursuant to this clause exceeds the amount needed to
repay the outstanding Principal Amount of the Class A-2a Notes in
full, then such excess shall be applied in repayment of principal
on the Class A-2b Notes;
(vii) [reserved];
(viii) pay to the Indenture Trustee, on behalf of the Class
A-2b, Class A-3 and Class A-4 Noteholders, pro rata, the Total
Principal Payment Amount for such Payment Date; provided (i) that
if the Amount Available remaining to be allocated pursuant to
this clause is less than the full amount required to be so paid,
such remaining Amount Available shall be allocated to each Class
A-2b, Class A-3 and Class A-4 Note, pro rata, based on the
outstanding Principal Amount thereof and (ii) if the amount to be
allocated pursuant to this clause exceeds the amount needed to
repay the outstanding Principal Amount of the Class A-2b Notes,
Class A-3 Notes and the Class A-4 Notes in full, then such excess
shall be applied in repayment on the Class B Notes;
(ix) pay to the Indenture Trustee, on behalf of the Class B
Noteholders, the Total Principal Payment Amount for such Payment
Date; provided (i) that if the Amount Available remaining to be
allocated pursuant to this clause is less than the full amount
required to be so paid, such remaining Amount Available shall be
allocated to each Class B Note pro rata based on the outstanding
Principal Amount thereof, and (ii) if the amount to be allocated
pursuant to this clause exceeds the amount needed to repay the
outstanding Principal Amount of the Class B Notes in full, then
such excess shall be applied in repayment of principal on the
Class C Notes;
(x) pay to the Indenture Trustee, on behalf of the Class C
Noteholders, the Total Principal Payment Amount for such Payment
Date; provided (i) that if the Amount Available remaining to be
allocated
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pursuant to this clause is less than the full amount required to
be so paid, such remaining Amount Available shall be allocated to
each Class C Note pro rata based on the outstanding Principal
Amount thereof, and (ii) if the amount to be allocated pursuant
to this clause exceeds the amount needed to repay the outstanding
Principal Amount of the Class C Notes in full, then such excess
shall be applied in repayment of principal on the Class D Notes;
(xi) pay to the Indenture Trustee, on behalf of the Class D
Noteholders, the Total Principal Payment Amount for such Payment
Date; provided that if the Amount Available remaining to be
allocated pursuant to this clause is less than the full amount
required to be so paid, such remaining Amount Available shall be
allocated to each Class D Note pro rata based on the outstanding
Principal Amount thereof; and
(xii) the Reallocated Principal, if any, to the Indenture
Trustee for the benefit, sequentially, of the Class A-1, Class
A-2a, Class A-2b, Class A-3, Class A-4, Class B, Class C and
Class D Noteholders.
(d) On the Business Day preceding each Payment Date, the
Indenture Trustee shall, in accordance with written directions from the
Servicer, withdraw from amounts on deposit in the Cash Collateral Account, and
deposit into the Collection Account, an amount equal to the lesser of the
Available Cash Collateral Amount for such Payment Date and the sum of the
following amounts, if any:
(i) the amount, if any, by which the Available Pledged
Revenues with respect to such Payment Date, is less than the
amount specified in clauses (b)(i)-(iv) of this Section 7.05 (or
in the case of a payment after an Event of Default, in clauses
(c) (i) - (iv) of this Section 7.05); plus
(ii) the Principal Deficiency Amount, if any, for such
Payment Date, plus
(iii) with respect to the Maturity Date for any Class of
Notes or on the first Payment Date on which the Contract Pool
Principal Balance is less than $10,000,000, the amount, if any,
by which the Available Pledged Revenues, after payment of all
amounts specified in clauses (b)(i) through (b)(iv) (or in the
event of a payment after an Event of Default clauses (c) (i)
through (c)(iv)) of Section 7.05, is less than (A) in the case of
the Maturity Date for a Class of Notes, the remaining Principal
Amount of such Class of Notes, and (B) in the case of the first
Payment Date on which the Contract Pool Principal Balance is less
than $10,000,000 the Principal Amount of all outstanding Notes.
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In the event that the Available Pledged Revenues for any Payment Date are less
than the total amount, if any, specified above for such Payment Date, the amount
actually withdrawn by the Indenture Trustee shall be applied in the order of
priority specified above, and, within each clause specified above, in the order
of priority specified in Section 7.05(b) or (c), as the case may be. The
Servicer shall give the Indenture Trustee and the Cash Collateral Account
Lenders' Agent notice, at least two Business Days prior to each Payment Date, of
the amounts, if any, specified in clauses (i) through (iii) above for such
Payment Date.
(e) On the Class A-2a Maturity Date, prior to any distributions
pursuant to Section 7.05(c) hereof, the Indenture Trustee shall distribute to
the Class A-2a Noteholders all amounts on deposit in the Class A-2a Funding
Account (exclusive of Investment Earnings thereon).
(f) If at any time there is a loss of principal on amounts on
deposit in the Class A-2a Funding Account, the Principal Amount of the Class
A-2b Notes shall be reduced by an amount equal to such principal loss. At any
time thereafter, if such loss is subsequently recovered, (i) prior to the Class
A-2a Maturity Date, such amounts shall be held on deposit in the Class A-2a
Funding Account and the Principal Amount of the Class A-2b Notes shall be
increased by such recovery amount, or (ii) on and after the Class A-2a Maturity
Date, such recovery amount shall be applied first, to the Class A-2a Noteholders
as a reduction of principal until the Principal Amount of the Class A-2a Notes
has been reduced to zero, and the Principal Amount of the Class A-2b Notes shall
be increased by such recovery amount and then, to the Class A-2b Noteholders
(without any reduction or increase in the Principal Amount of the Class A-2b
Notes); provided, however, that if additional Class A-2b Notes are issued
pursuant to Section 2.14 of the Indenture such amounts shall be distributed to
the original Class A-2b Noteholders as a payment of principal without any
reduction in the Principal Amount of the original Class A-2b Notes.
Section 7.06. Repurchases of, or Substitution for, Contracts for
Breach of Representations and Warranties. Upon a discovery by the Servicer of an
inaccuracy or breach of a representation or warranty set forth in the Schedule
of Representations which has been made or deemed made with respect to a Contract
in the Contract Pool, which inaccuracy or breach materially adversely affects
the Trust's or any Noteholder's or the Equity Certificateholder's interest in
such Contract (without regard to the benefits of the Cash Collateral Account,
any reserve fund, over collateralization or other similar enhancement) or the
collectibility thereof (an "Ineligible Contract"), the Servicer shall promptly
notify Financial thereof. As provided in the Substitute VFC Purchase Agreement
and the Non-VFC Purchase Agreement and in accordance with this Section 7.06,
Financial is obligated to repurchase each such Ineligible Contract, at a
repurchase price equal to the Purchase Amount (determined as of the date such
repurchase is to be funded), not later than the second Deposit Date following
the date the Servicer becomes aware of any such breach or inaccuracy and which
breach or inaccuracy has not otherwise been cured; provided, however, that if
Financial is able to effect a substitution for any such Ineligible Contract in
compliance with Section 2.04, Financial may, in lieu of repurchasing such
Ineligible Contract, effect a substitution for such Ineligible Contract with a
Substitute Contract not later than the date a repurchase of such Ineligible
Contract would be required hereunder; and provided further, that with respect to
a breach or inaccuracy of any such representations or warranties
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relating to the Contract Pool (or all Contracts conveyed on the Closing Date or
Substitution Transfer Date, as the case may be) in the aggregate and not to any
particular Contract, Financial (or the Servicer acting on its behalf) may select
Contracts (without adverse selection) to repurchase (or substitute for) such
that had such Contracts not been included as part of the related Transferred
Assets (and, in the case of a substitution, had such Substitute Contract been
included as part of the related Transferred Assets instead of the selected
Ineligible Contract) there would have been no breach or inaccuracy of such
representation or warranty. Notwithstanding any other provision of this
Agreement, the obligation of Financial under the Purchase and Sale Agreements
and described in this Section 7.06 shall not terminate or be deemed released by
any party hereto upon a Servicing Transfer pursuant to Article VIII. The right
to enforce the repurchase or substitution obligation described in this Section
shall constitute the sole remedy of the Trust, the Indenture Trustee, the
Depositor, the Noteholders and the Equity Certificateholder with respect to the
inaccuracy or breach related to such Ineligible Contract. The Purchase Amount
shall be allocated in accordance with the Allocation Criteria.
Section 7.07. Reassignment of Repurchased or Substituted Contracts.
Upon deposit into the Collection Account of the Purchase Amount with respect to
an Ineligible Contract as described in Section 7.06 (or upon the Substitution
Transfer Date related to a Substitute Contract described in Section 7.06), or of
the repurchase price set forth in Section 7.08, the Indenture Trustee shall
release and reassign to Financial all of the Trust's right and interest in the
repurchased or substituted Contract and related Transferred Assets upon receipt
of written instruction from the Servicer without recourse, representation or
warranty, and such reassigned Contract shall no longer thereafter be included in
any calculations of Contract Principal Balances required to be made hereunder or
otherwise be deemed a part of the Trust Assets.
Section 7.08. Financial's and Depositor's Repurchase Option. As
provided in the Substitute VFC Purchase Agreement and the Non-VFC Purchase
Agreement, as the case may be, on written notice to the Indenture Trustee at
least twenty (20) days prior to a Payment Date, and provided that the aggregate
Principal Amount of Notes outstanding is then less than 10% of the Initial
Contract Pool Principal Balance, Financial, through the Depositor, may (but is
not required to) repurchase from the Trust on that Payment Date all outstanding
Contracts in the Contract Pool at a price equal to the sum of (a) the aggregate
outstanding Principal Amount of the Notes plus accrued unpaid interest
(calculated, for purposes of this Section 7.08, as to the Class A-2 Notes at the
Class A-2 Assumed Fixed Rate and the Class A-3 Notes at the Class A-3 Assumed
Fixed Rate) thereon as of the current Payment Date, and (b) the amount of
unreimbursed Servicer Advances (if any) as well as accrued and unpaid monthly
Servicing Fees to the date of such repurchase plus (c) any other amounts that
would otherwise be payable from Available Pledged Revenues on such Payment Date
(assuming sufficient Pledged Revenues were available to effect such payments)
pursuant to Article VII, minus (d) Pledged Revenues and other Available Pledged
Revenues on deposit in the Collection Account and available to make such
payments on such Payment Date. Such price is to be deposited in the Collection
Account not later than the Deposit Date preceding such Payment Date, against the
Indenture Trustee's and Depositor's release of the Contract Assets and the
related Contract Files to Financial.
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ARTICLE VIII
SERVICER DEFAULTS; SERVICING TRANSFER
Section 8.01. Servicer Default. "Servicer Default" means the
occurrence of any of the following:
(a) any failure by the Servicer to make any payment, transfer or
deposit or to give instructions or notice to the Owner Trustee or the Indenture
Trustee to make any payment, transfer or deposit, or to deliver the Monthly
Report pursuant to this Agreement, which failure continues unremedied for a
period of five (5) Business Days after the first to occur of (i) written notice
from the Owner Trustee (with a copy to the Indenture Trustee) or the Indenture
Trustee (with a copy to the Owner Trustee) of such failure shall have been given
to the Servicer, or (ii) the date the Servicer becomes aware thereof; or
(b) failure on the part of the Servicer duly to observe or
perform any other covenants or agreements of the Servicer set forth in this
Agreement which has a material adverse effect on the Noteholders or the Equity
Certificateholder, which continues unremedied for a period of thirty (30) days
after the first to occur of (i) the date on which written notice of such failure
requiring the same to be remedied shall have been given to the Servicer by the
Indenture Trustee or to the Servicer and the Indenture Trustee by the
Noteholders or the Equity Certificateholder or the Indenture Trustee on behalf
of such Noteholders of Notes aggregating not less than 25% of the Principal
Amount of any Class adversely affected thereby, and (ii) the date on which the
Servicer becomes aware thereof, and such failure continues to materially
adversely affect the Noteholders or the Equity Certificateholders for such
period; or
(c) any representation, warranty or certification made by the
Servicer in this Agreement or in any certificate delivered pursuant hereto shall
prove to have been incorrect when made, which has a material adverse effect on
the Noteholders or Equity Certificateholder and which continues to be incorrect
in any material respect for a period of thirty (30) days after the first to
occur of (i) the date on which written notice of such incorrectness requiring
the same to be remedied shall have been given to the Servicer and the Owner
Trustee by the Indenture Trustee, or to the Servicer, the Owner Trustee and the
Indenture Trustee by Noteholders or the Equity Certificateholders or by the
Indenture Trustee on behalf of Noteholders of Notes aggregating not less than
25% of the Principal Amount of any Class adversely affected thereby, and (ii)
the date on which the Servicer becomes aware thereof, and such incorrectness
continues to materially adversely affect the Noteholders or Equity
Certificateholders for such period; or
(d) an Insolvency Event shall occur with respect to the Servicer.
Notwithstanding the foregoing, a delay in or failure of performance
referred to under clause (a) above for a period of five (5) Business Days or
referred to under clause (b) or (c) for a period of sixty (60) days (in addition
to any period provided in (a), (b) or (c)) shall not constitute a Servicer
Default until the expiration of such additional five (5) Business Days or
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sixty (60) days, respectively, if such delay or failure could not be prevented
by the exercise of reasonable diligence by the Servicer and such delay or
failure was caused by an act of God or other similar occurrences. Upon the
occurrence of any such event the Servicer shall not be relieved from using its
best efforts to perform its obligations in a timely manner in accordance with
the terms of this Pooling Agreement and the Servicer shall provide the Owner
Trustee, the Indenture Trustee and the Depositor prompt notice of such failure
or delay by it, together with a description of its efforts to so perform its
obligations. The Servicer shall promptly notify the Indenture Trustee in writing
of any Servicer Default.
Section 8.02. Servicing Transfer. (a) If a Servicer Default has
occurred and is continuing, the Required Holders or the Indenture Trustee may,
by written notice (a "Termination Notice") delivered to the parties hereto,
terminate all (but not less than all) of the Servicer's rights and obligations
under this Pooling Agreement with respect to the Trust Assets.
(b) Upon delivery of the Termination Notice (or, if later, on a
date designated therein), and on the date that a successor Servicer shall have
been appointed pursuant to Section 8.03 (such appointment being herein called a
"Servicing Transfer"), all rights, benefits, fees, indemnities, authority and
power of the Servicer under this Pooling Agreement, whether with respect to the
Contracts in the Contract Pool, the Contract Files or otherwise, shall pass to
and be vested in such successor (the "Successor Servicer") pursuant to and under
this Section 8.02; and, without limitation, the Successor Servicer is authorized
and empowered to execute and deliver on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do any and all acts or things necessary or appropriate to effect the purposes
of such notice of termination. The Servicer agrees to cooperate with the
Successor Servicer in effecting the termination of the responsibilities and
rights of the Servicer under this Pooling Agreement, including, without
limitation, the transfer to the Successor Servicer for administration by it of
all cash amounts which shall at the time be held by the Servicer for deposit, or
have been deposited by the Servicer, in the Collection Account, or for its own
account in connection with its services hereafter or thereafter received with
respect to the Contracts in the Contract Pool. The Servicer shall transfer to
the Successor Servicer (i) all records held by the Servicer relating to such
Contracts in such electronic form as the Successor Servicer may reasonably
request and (ii) any related Contract Files in the Servicer's possession. In
addition, the Servicer shall permit access to its premises and employees
(including all computer records and programs) to the Successor Servicer or its
designee, and shall pay the reasonable transition expenses of the Successor
Servicer. Upon a Servicing Transfer, the Successor Servicer shall also be
entitled to receive the Servicing Fee for performing the obligations of the
Servicer.
Section 8.03. Appointment of Successor Servicer; Reconveyance;
Successor Servicer to Act. Upon delivery of the Termination Notice (or, if
later, on a date designated therein), the Servicer shall continue to perform all
servicing functions under this Pooling Agreement until the date specified in the
Termination Notice or, if no such date is specified, until a date mutually
agreed by the Servicer and the Indenture Trustee. The Indenture Trustee shall as
promptly as possible after the giving of or receipt of a Termination Notice,
appoint a Successor Servicer, and such Successor Servicer shall accept its
appointment by a written assumption and by delivery of an opinion of counsel
(which shall not be at the expense of the Indenture Trustee) to the Successor
Servicer relating to corporate matters and enforceability, in each case in a
form
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acceptable to the Indenture Trustee and the Owner Trustee. Any Successor
Servicer shall be a financial institution having a net worth of at least
$50,000,000 and whose regular business includes the servicing of contracts
similar to the Contracts in the Contract Pool.
In the event that a Successor Servicer has not been appointed and has
not accepted its appointment within 60 days of the delivery of a Termination
Notice, then the Indenture Trustee shall offer the Depositor, and the Depositor
shall offer Financial, the right to accept retransfer of all the Trust Assets,
and such party may accept retransfer of such Trust Assets in consideration of
the Depositor's delivery to the Collection Account on or prior to the next
upcoming Payment Date of a sum equal to the Aggregate Principal Amount of all
Notes then outstanding, together with accrued and unpaid interest thereon
through such date of deposit; provided, that the Indenture Trustee, if so
directed by, the Required Holders, need not accept and effect such reconveyance
in the absence of evidence (which may include valuations of an investment bank
or similar entity, which shall not be at the expense of the Indenture Trustee)
reasonably acceptable to such Indenture Trustee or Required Holders that such
retransfer would not constitute a fraudulent conveyance of the Depositor or
Financial; provided, further, Financial may not accept such retransfer unless it
shall have delivered to each Rating Agency, with a copy to the Indenture
Trustee, an Opinion of Counsel that such retransfer would not constitute a
fraudulent conveyance of the Depositor or the Seller or that such retransfer
would not constitute a preferential payment by the Depositor or Financial.
In the event that a Successor Servicer has not been appointed and has
not accepted its appointment at the time when the then Servicer has ceased to
act as Servicer, the Indenture Trustee without further action shall
automatically be appointed the Successor Servicer. Notwithstanding the
foregoing, if the Indenture Trustee is legally unable or prohibited from so
acting or is unwilling to so act, it shall petition a court of competent
jurisdiction to appoint any established financial institution having a net worth
of at least $50,000,000 and whose regular business includes the servicing of
contracts similar to the Contracts in the Contract Pool as the Successor
Servicer hereunder. On or after a Servicing Transfer, the Successor Servicer
shall be the successor in all respects to the Servicer in its capacity as
servicer under this Pooling Agreement, and the transactions set forth or
provided for in this Pooling Agreement, and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions hereof, and the terminated Servicer shall be
relieved of such responsibilities, duties and liabilities arising after such
Servicing Transfer; provided, however, that the Successor Servicer shall not be
liable for any acts or omissions of the departing Servicer occurring prior to
such Servicing Transfer or for any breach by the departing Servicer of any of
its representations and warranties contained in this Pooling Agreement or in any
related Transaction Document or other agreement. As compensation therefor, the
Successor Servicer shall be entitled to receive the Servicing Fee. The Trust,
the Noteholders and the Equity Certificateholders, the Indenture Trustee and
such successor shall take such action, consistent with this Pooling Agreement,
as shall be necessary to effectuate any such succession. To the extent the
terminated Servicer has made Servicer Advances, it shall be entitled to
reimbursement of the same notwithstanding its termination hereunder, to the same
extent as if it had continued to service the Trust Assets hereunder. In
addition, it is understood and agreed that if an Event of Default has occurred
and a Servicer Transfer is being effected by action of the Indenture Trustee
hereunder, any documented expenses reasonably incurred by the Indenture Trustee
in connection
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with effecting such Servicer Transfer shall be deemed expenses reimbursable from
Available Pledged Revenues after an Event of Default pursuant to Section
7.05(a)(i) hereof.
Section 8.04. Notifications to Noteholders and the Equity
Certificateholders. (a) Promptly following the occurrence of any Servicer
Default, the Servicer shall give written notice thereof to the Trustees, the
Depositor, the Class A-3 Swap Counterparty and each Rating Agency at the
addresses described in Section 11.04 and to the Noteholders and Equity
Certificateholder at their respective addresses appearing on the Note Register
and the Certificate Register, respectively.
(b) Within ten (10) days following any termination or appointment
of a Successor Servicer pursuant to this Article VIII, the Indenture Trustee
shall give written notice thereof to each Rating Agency and the Depositor at the
addresses described in Section 11.04, and to the Noteholders, at their
respective addresses appearing on the Note Register, and the Owner Trustee.
Section 8.05. Effect of Transfer. (a) After a Servicing Transfer, the
terminated Servicer shall have no further rights or obligations under this
Pooling Agreement, including, without limitation, with respect to the
management, administration, servicing, custody or collection of the Trust
Assets, and the Successor Servicer appointed pursuant to Section 8.03 shall have
all of such obligations, except that the terminated Servicer will transmit or
cause to be transmitted directly to the Successor Servicer for its own account,
promptly on receipt and in the same form in which received, any amounts or items
(properly endorsed where required for the Successor Servicer to collect them)
received as payments upon or otherwise in connection with the Contracts in the
Contract Pool.
(b) A Servicing Transfer shall not affect the rights and duties
of the parties to this Pooling Agreement (including but not limited to the
indemnities of the departing Servicer) other than those relating to the
management, administration, servicing, custody or collection of the Contracts in
the Contract Pool and related Transferred Assets.
Section 8.06. Database File. The Servicer will provide the Successor
Servicer with a magnetic tape containing the database file for each Contract in
the Contract Pool on and as of the Business Day before the actual commencement
of servicing functions by the Successor Servicer following the occurrence of a
Servicer Default.
Section 8.07. Successor Servicer Indemnification. The departing
Servicer shall defend, indemnify and hold the Successor Servicer and any
officers, directors, employees or agents of the Successor Servicer harmless
against any and all claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments and any other costs, fees, and expenses
that the Successor Servicer may sustain in connection with the claims asserted
at any time by third parties against the Successor Servicer which result from
(i) any willful or grossly negligent act taken or omission by the departing
Servicer or (ii) a breach of any representations of the departing Servicer in
Section 3.02. The indemnification provided by this Section 8.07 shall survive
(a) a Servicing Transfer and/or (b) the termination of this Agreement.
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Section 8.08. Responsibilities of the Successor Servicer. The
Successor Servicer will not be responsible for delays attributable to the
departing Servicer's failure to deliver information, defects in the information
supplied by the departing Servicer or other circumstances beyond the control of
the Successor Servicer.
The Successor Servicer will make arrangements with the departing
Servicer for the prompt and safe transfer of, and the departing Servicer shall
provide to the Successor Servicer, all necessary servicing files and records,
including (as deemed necessary by the Successor Servicer at such time): (i)
microfiche loan documentation, (ii) servicing system tapes, (iii) Contract
payment history, (iv) collections history and (v) the trial balances, as of the
close of business on the day immediately preceding conversion to the Successor
Servicer, reflecting all applicable Contract Pool information. The departing
Servicer shall be obligated to pay the costs associated with the transfer of the
servicing files and records to the Successor Servicer.
The Successor Servicer shall have no responsibility and shall not be
in default hereunder nor incur any liability for any failure, error, malfunction
or any delay in carrying out any of its duties under this Pooling Agreement if
any such failure or delay results from the Successor Servicer acting in
accordance with information prepared or supplied by a Person other than the
Successor Servicer or the failure of any such Person to prepare or provide such
information. The Successor Servicer shall have no responsibility, shall not be
in default and shall incur no liability (i) for any act or failure to act by any
third party, including the departing Servicer, the Depositor or the Trustees or
for any inaccuracy or omission in a notice or communication received by the
Successor Servicer from any third party or (ii) which is due to or results from
the invalidity or unenforceability of any Contract under applicable law or the
breach or the inaccuracy of any representation or warranty made with respect to
any Contract.
Any Successor Servicer which assumes the role of Successor Servicer
hereunder shall be entitled to the benefits of (and subject to the provisions
of) Section 5.05 concerning delegation of duties to subservicers.
Section 8.09 Servicer Not to Resign. The Servicer shall not resign
from its obligations and duties under this Agreement except upon determination
that the performance of its duties shall no longer be permissible under
applicable law, compliance with which could not be realized without material
adverse impact on the Servicer's financial condition. No such resignation shall
become effective until the Indenture Trustee or a successor Servicer shall have
assumed the responsibilities and obligations of the Servicer in accordance with
Section 8.03 hereof.
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ARTICLE IX
SERVICER REPORTING
Section 9.01. Monthly Reports. With respect to each Payment Date and
the related Collection Period, the Servicer will provide to each Trustee, the
Class A-2 Swap Counterparty, the Class A-3 Swap Counterparty and each Rating
Agency, on the related Determination Date, a monthly statement (a "Monthly
Report") substantially in the form of Exhibit D hereto. On each Payment Date,
the Indenture Trustee will forward to each Noteholder a copy of the Monthly
Report for the related Collection Period. The parties hereto acknowledge that
the Indenture Trustee has no obligation to verify the accuracy of the Monthly
Report.
Section 9.02. Officer's Certificate. Each Monthly Report delivered
pursuant to Section 9.01 shall be accompanied by a certificate of a Servicing
Officer certifying the accuracy of the Monthly Report.
Section 9.03. Other Data. In addition, the Servicer shall, upon the
request of any Trustees, or any Rating Agency, furnish such Trustee or Rating
Agency, as the case may be, such underlying data used to generate a Monthly
Report as may be reasonably requested.
Section 9.04. Annual Reporting; Evidence as to Compliance. The
Servicer shall cause a firm of nationally recognized independent accountants
(the "Independent Accountants"), who may also render other services to the
Servicer or its Affiliates, to deliver to the Trustees and each Rating agency,
on or before March 31 (or ninety (90) days after the end of the Servicer's
fiscal year, if other than December 31) of each year, beginning on March 31,
2001, with respect to the twelve months ended the immediately preceding December
31 or other applicable date), a report addressed to the Board of Directors of
the Servicer and to the Trustees (the "Accountant's Report") to the effect that
such Independent Accountants have, at the request of the Servicers, (i) audited
the financial statements of the Servicer (or, if the Servicer is a wholly-owned
subsidiary of another entity, the financial statements of such parent entity)
and issued an opinion thereon and that such audit was made in accordance with
generally accepted auditing standards as in effect in the jurisdiction of the
entity being audited, which require that such Independent Accountants plan and
perform the audit to obtain reasonable assurance as to whether the financial
statements of the Servicer (or its parent, as applicable) are free of material
misstatement, and (ii) examined management's assertion that the Servicer
maintained effective control over the servicing of such assets, in accordance
with established or stated criteria, and providing a report thereon, as well as
confirming that such examination was performed in accordance with standards
established by the American Institute of Certified Public Accountants. A copy of
the Accountant's Report may be obtained by any Securityholder by a request in
writing to the Indenture Trustee, in the case of a Noteholder, or in the case of
the Equity Certificateholder, addressed to its Corporate Trust Office.
Section 9.05. Annual Statement of Compliance from Servicer. The
Servicer will deliver to the Trustees, and each of the Rating Agencies, on or
before March 31 of each year commencing March 31, 2001, an Officer's Certificate
stating that (a) a review of the activities of
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the Servicer during the prior calendar year and of its performance under the
Pooling Agreement was made under the supervision of the officer signing such
certificate and (b) to such officer's knowledge, based on such review, the
Servicer has fully performed or cause to be performed in all material respects
all its obligations under the Pooling Agreement and no Servicer Default has
occurred or is continuing, or, if there has been a Servicer Default, specifying
each such default known to such officer and the nature and status thereof and
the steps being taken or necessary to be taken to remedy such event.
A copy of such certificate may be obtained by any Noteholder or the
Equity Certificateholder by a request in writing to the Indenture Trustee, with
respect to any Noteholder, or the Owner Trustee, with respect to the Equity
Certificateholder.
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ARTICLE X
TERMINATION
Section 10.01. Sale of Trust Assets. (a) Upon any transfer of Trust
Assets pursuant to Section 9.02 of the Trust Agreement, the Servicer shall
instruct the Indenture Trustee in writing to deposit the proceeds from such
transfer after all payments and reserves therefrom have been made (the
"Insolvency Proceeds") into the Collection Account. On the Payment Date on which
the Insolvency Proceeds are deposited in such Collection Account (or, if such
proceeds are not so deposited on a Payment Date, on the Payment Date immediately
following such deposit), the Servicer shall instruct the Indenture Trustee to
allocate and apply the Insolvency Proceeds as if (and in the same order of
priority as) the Insolvency Proceeds were Pledged Revenues being allocated and
distributed on such date pursuant to this Pooling Agreement.
(b) Notice of any termination of the Trust shall be given by the
Servicer to the Owner Trustee and the Indenture Trustee as soon as practicable
after the Servicer has received notice thereof.
(c) Following the satisfaction and discharge of the Indenture and
the payment in full of the principal of and interest on the Notes, the Equity
Certificateholder will succeed to the rights of the Noteholders hereunder.
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ARTICLE XI
MISCELLANEOUS
Section 11.01. Amendments. (a) This Pooling Agreement may be amended
in writing by Financial, the Servicer and the Trust and the Indenture Trustee
without prior notice to or the consent of any of the Holders, and in the case of
clauses (v) and (vi), upon satisfaction of the Rating Agency Condition, (i) to
correct manifest error or cure any ambiguity, (ii) to correct or supplement any
provisions herein which may be inconsistent with any other provisions herein,
(iii) to add or amend any provisions as requested by the Rating Agencies in
order to maintain or improve any rating of the Notes (it being understood that,
after the Closing Date, neither the Trust, the Owner Trustee, the Indenture
Trustee, Financial nor TCC is obligated to maintain or improve such rating);
(iv) to add to the covenants, restrictions or obligations of Financial, the
Servicer, the Trust or the Indenture Trustee or to provide for the delivery of
or substitution of a Servicer Letter of Credit or a Class A-2 Swap Agreement or
a Class A-3 Swap Agreement; (v) to evidence and provide for the acceptance of
the appointment of a successor trustee with respect to the Trust Estate and add
to or change any provisions as shall be necessary to facilitate the
administration of the trusts under the Trust Agreement by more than one trustee
pursuant to Article X of the Trust Agreement; (vi) to add, change or amend any
provision to maintain the trust as an entity not subject to federal income tax;
or (vii) to add, change or eliminate any other provisions, provided that an
amendment pursuant to this clause (vii), shall not, as evidenced by an Opinion
of Counsel for the Servicer or Financial, adversely affect in any material
respect the interests of the Trust, any Noteholder or the Equity
Certificateholder.
(b) This Pooling Agreement may also be amended from time to time
by the parties signatory hereto, with the consent of the Required Holders, for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions thereof or of modifying in any manner the rights of the
Noteholders or the Equity Certificateholder; provided, however, that no such
amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, Pledged Revenues, payments on the Trust
Assets or payments that shall be required to be made on any Note or the Equity
Certificate (including by way of amendment of related definitions); (ii) change
the manner in which the Cash Collateral Account is applied; or (iii) change in
any manner (including through amendment of related definitions), the Noteholders
and the Equity Certificateholder which are required to consent to any such
amendment; or (iv) make any Note or the Equity Certificate payable in money
other than Dollars, without the consent of the Noteholders and the Equity
Certificateholders of all Notes of the relevant affected Class then outstanding
and the Equity Certificateholder, if affected; or (v) change in any manner the
duties of the Indenture Trustee under this Agreement without its written
consent, (in any such case) or (vi) adversely affect the rights and obligations
of the Class A-2 Swap Counterparty under the Class A-2 Swap Agreement
(including, without limitation, the priority of payments owed to the Class A-2
Swap Counterparty under the Class A-2 Swap Agreement) without the written
consent of the Class A-2 Swap Counterparty or (vii) adversely affect the rights
and obligations of the Class A-3 Swap Counterparty under the Class A-3 Swap
Agreement (including, without limitation, the priority of payments owed to the
Class A-3 Swap
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Counterparty under the Class A-3 Swap Agreement) without the written consent of
the Class A-3 Swap Counterparty.
(c) Prior to the execution of any such amendment or consent, the
Indenture Trustee shall furnish written notification of the substance of such
amendment or consent, together with a copy thereof, to each Rating Agency.
(d) Promptly after the execution of any such amendment or
consent, the Indenture Trustee shall furnish written notification of the
substance of such amendment or consent to each Noteholder and the Equity
Certificateholder, respectively. It shall not be necessary for the consent of
Noteholders and the Equity Certificateholder pursuant to Section 11.01(b) to
approve the particular form of any proposed amendment or consent, but it shall
be sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization by Noteholders and
the Equity Certificateholder of the execution thereof shall be subject to such
reasonable requirements as the Indenture Trustee may prescribe. Promptly after
the execution of any such amendment or consent, the Indenture Trustee shall
furnish a copy of such amendment or consent to the Class A Swap Counterparty and
the Class A-3 Swap Counterparty.
(e) Each Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment on behalf of the
Trust is authorized or permitted by this Pooling Agreement, and that all
conditions precedent to such execution as set forth herein have been satisfied.
A Trustee may, but shall not be obligated to, enter into any such amendment
which affects such Trustee's own rights, duties or immunities under this Pooling
Agreement or otherwise.
(f) Notwithstanding anything to the contrary in the foregoing
provisions of this Section 11.01, (a) the Depositor or the Servicer, acting on
behalf of the Depositor, may request each rating agency to approve a formula for
determining the Required Cash Collateral Amount that is different from the
formula or result determined from the current definition thereof contained
herein so as to result in a decrease in the amount of the Required Cash
Collateral amount or the manner by which such Cash Collateral Account is funded.
If each Rating Agency delivers to the Indenture Trustee and Owner Trustee a
written notice or letter satisfying the Rating Agency condition in connection
with such change, then the Required Cash Collateral amount will be theretofore
determined in accordance with such changed formula or manner of funding, and an
amendment to this Agreement effecting such change may be executed without the
consent of any Noteholder and the Equity Certificateholder.
Section 11.02. Reserved.
Section 11.03. Governing Law. This Pooling Agreement shall be
construed in accordance with the laws of the State of New York and the
obligations, rights, and remedies of the parties under this Pooling Agreement
shall be determined in accordance with such laws, except that the duties of the
Owner Trustee shall be governed by the laws of the State of Delaware.
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Section 11.04. 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
(1) 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 telefax transmission with a confirmation of
receipt, in all cases addressed to the recipient as follows:
(i) If to the Servicer:
AT&T Capital Corporation
650 CIT Drive
Livingston, NJ 07039
Attn: Treasury - Securitization
Fax No.: (973) 535-5900
Telephone No.: (973) 740-5058
with a copy to:
The CIT Group, Inc.
650 CIT Drive
Livingston, NJ 07039
Attn: Treasury - Securitization
Fax No.: (973) 535-5900
Telephone No.: (973) 740-5058
(ii) If to the Depositor:
NCT Funding Company, L.L.C.
c/o The CIT Group, Inc.
650 CIT Drive
Livingston, NJ 07039
Attn: Treasury - Securitization
Fax No.: (973) 535-5900
Telephone No.: (973) 740-5058
(iii) If to the Indenture Trustee:
The Chase Manhattan Bank
450 West 33rd St., 14th Floor
New York, New York 10001-2697
Attention: Capital Markets Fiduciary
Services/Structured
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<PAGE>
Finance Services,
CIT 2000-1
Fax No.: (212) 946-3916/8302
Telephone No.: (212) 946-3200
(iv) If to a Financing Originator:
At the address, telephone and fax information set
forth for such Financing Originator in the VFC
Conveyancing Agreement (for TCC Financing
Originators)
(v) If to Financial:
Newcourt Financial USA Inc.
650 CIT Drive
Livingston, NJ 07039
Attn: Treasury - Securitization
Fax No.: (973) 535-5900
Telephone No.: (973) 740-5058
(vi) If to the Owner Trustee:
Allfirst Financial Center National Association
499 Mitchell Road - MC101-591
Millsboro, DE 19966
Attention: Corporate Trust Administration - CIT 2000-1
Fax No.: (410) 244-4236
Telephone No. (410) 244-4626
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 11.05. Severability of Provisions. If one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Notes or the
Equity Certificateholders or the rights of the holders thereof.
Section 11.06. Third Party Beneficiaries. Except as otherwise
specifically provided herein, the parties hereto hereby manifest their intent
that no third party shall be deemed a third party beneficiary of this Agreement,
and specifically that Obligors are not third party beneficiaries of this
Agreement; provided, that the Owner Trustee shall be a third party
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<PAGE>
beneficiary of this Agreement for purposes of Sections 3.01 and 3.02 and 11.13,
and the fee and indemnification provisions hereof and the Class A-2 Swap
Counterparty and the Class A-3 Swap Counterparty shall be a third party
beneficiary with respect to those provisions relating solely to the Class A-2
Swap Agreement and the Class A-3 Swap Agreement, respectively.
Section 11.07. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall together
constitute but one and the same instrument.
Section 11.08. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 11.09. No Bankruptcy Petition; Disclaimer and Subordination.
(a) Each of the Servicer, the Owner Trustee and each Noteholder and
the Equity Certificateholder (by acceptance of the applicable Notes or the
Equity Certificate) covenants and agrees that it will not institute against the
Depositor, or the Trust, or solicit or join in or cooperate with or encourage
any other Person in instituting against the Depositor or the Trust, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceedings under the laws of the United States or any state of
the United States.
(b) Consistent with the provisions in Section 2.07 of the Trust
Agreement and Section 6.17 hereof, the Trust, as well as each Noteholder and the
Equity Certificateholder by accepting a Note or the Equity Certificate,
acknowledges and agrees that such Note or the Equity Certificate represents a
debt instrument secured by, or a beneficial interest in the Trust and Trust
Assets only and does not represent an interest in any assets (other than the
Trust Assets) of the Depositor (including by virtue of any deficiency claim in
respect of obligations not paid or otherwise satisfied from the Trust Assets and
proceeds thereof). In furtherance of and not in derogation of the foregoing, to
the extent the Depositor enters into other securitization transactions as
contemplated in Section 6.07, the Trust as well as each Noteholder and the
Equity Certificateholder by accepting a Note or Certificate acknowledges and
agrees that it shall have no right, title or interest in or to any assets (or
interests therein) (other than Trust Assets) conveyed or purported to be
conveyed by the Depositor to another securitization trust (i.e., other than the
Issuer) or other Person or Persons in connection therewith (whether by way of a
sale, capital contribution or by virtue of the granting of a Lien) ("Other
Assets"). To the extent that, notwithstanding the agreements and provisions
contained in the preceding sentences of this subsection, the Trust, or any
Noteholder and the Equity Certificateholder, either (i) asserts an interest in
or claim to, or benefit from, Other Assets, whether asserted against or through
the Depositor or any other Person owned by the Depositor, or (ii) is deemed to
have any such interest, claim or benefit in or from Other Assets, whether by
operation of law, legal process, pursuant to applicable provisions of Insolvency
Laws or otherwise (including without limitation by virtue of Section 1111(b) of
the federal Bankruptcy Code or any successor provision having similar effect
under the Bankruptcy Code), and whether deemed asserted against or through the
Depositor or any other Person owned by the Depositor, then the Trust and each
Noteholder and the Equity Certificateholder by accepting a Note or the Equity
Certificate further acknowledges
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<PAGE>
and agrees that any such interest, claim or benefit in or from Other Assets is
and shall be expressly subordinated to the indefeasible payment in full of all
obligations and liabilities of the Depositor which, under the terms of the
relevant documents relating to the securitization of such Other Assets, are
entitled to be paid from, entitled to the benefits of, or otherwise secured by
such Other Assets (whether or not any such entitlement or security interest is
legally perfected or otherwise entitled to a priority of payment or application
under applicable law, including Insolvency Laws, and whether asserted against
the Depositor or any other Person owned by the Depositor), including, without
limitation, the payment of post-petition interest on such other obligations and
liabilities. This subordination agreement shall be deemed a subordination
agreement within the meaning of Section 510(a) of the Bankruptcy Code. Each
Noteholder and the Equity Certificateholder further acknowledges and agrees that
no adequate remedy at law exists for a breach of this Section 11.09 and that the
terms and provisions of this Section 11.09 may be enforced by an action for
specific performance.
(c) The provisions of this Section 11.09 shall be for the third party
benefit of those entitled to rely thereon and shall survive the termination of
this Agreement.
Section 11.10. Jurisdiction. Any legal action or proceeding with
respect to this Agreement may be brought in the courts of the United States for
the Southern District of New York, and by execution and delivery of this
Agreement, each party hereto consents, for itself and in respect of its
property, to the non-exclusive jurisdiction of those courts. Each such party
irrevocably waives any objection, including any objection to the laying of venue
or based on the grounds of forum non conveniens, which it may now or hereafter
have to the bringing of any action or proceeding in such jurisdiction in respect
of this Agreement or any document related hereto.
Section 11.11. Tax Characterization. Notwithstanding the provisions of
Section 2.01 hereof, the Depositor and Owner Trustee agree that pursuant to
Treasury Regulations Section 301.7701-3(b)(1)(ii), the Trust is to be
disregarded as a separate entity from the Depositor for federal income tax
purposes.
Section 11.12. Servicer Indemnity. The Servicer will indemnify the
Depositor, the Trust, the Noteholders, the Equity Certificateholder and the
Trustees, and any of their officers, directors, employees or agents (each an
"Indemnified Party") from and against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments and any other costs,
fees and expenses that any Indemnified Party may sustain in connection with
claims asserted by third parties against such Indemnified Party which result
from any act or omission on the part of the Servicer with respect to the Trust
Assets or its duties and obligations under this Pooling Agreement, except where
such claims arise out of any willful misconduct, gross negligence or bad faith
on the part of such Indemnified Party. Indemnification under this Section shall
survive the resignation or removal of the Owner Trustee or Indenture Trustee, as
the case may be, and the termination of the Trust Agreement or this Pooling
Agreement.
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<PAGE>
Section 11.13. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this
Agreement has been executed on behalf of the Issuer by Allfirst Financial Center
National Association, not in its individual capacity but solely in its capacity
as Owner Trustee of the Issuer and in no event shall Allfirst Financial Center
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 Articles VI, VII and VIII of the Trust
Agreement.
Section 11.14. WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT
WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,
OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT
TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OF THIS AGREEMENT OR A TRANSACTION DOCUMENT OR ANY PROVISION HEREOF
OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, AMENDMENTS AND
RESTATEMENTS, OR MODIFICATIONS TO THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT.
[remainder of this page intentionally left blank]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the day and year first above
written.
CIT EQUIPMENT COLLATERAL 2000-1
By: ALLFIRST FINANCIAL CENTER
NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Owner Trustee on behalf of the Trust
By: /s/ Pamela S. Hazelip
----------------------------
Name: Pamela S. Hazelip
Title: Vice President
NCT FUNDING COMPANY, L.L.C., as Depositor
By: /s/ Frank Garcia
-------------------------------
Name: Frank Garcia
Title: Senior Vice President
NEWCOURT FINANCIAL USA INC.
By: /s/ Frank Garcia
----------------------------------
Name: Frank Garcia
Title: Senior Vice President
AT&T CAPITAL CORPORATION, in its
individual capacity and as Servicer
By: /s/ Frank Garcia
----------------------------------
Name: Frank Garcia
Title: Senior Vice President
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<PAGE>
EXHIBIT A
Form of Transfer Agreement
TRANSFER AGREEMENT
This TRANSFER AGREEMENT, dated May 10, 2000 is by and between NCT
Funding Company, L.L.C., as Depositor and transferor, and CIT Equipment
Collateral 2000-1, as transferee with respect to the conveyances evidenced
hereby.
WHEREAS, the parties named above are each parties to the Pooling and
Servicing Agreement dated as of April 1, 2000 (as from time to time amended,
supplemented or otherwise modified, the "PSA"); and
WHEREAS, pursuant to the PSA, the Depositor wishes to effect
conveyances of Transferred Assets (including the Contracts identified on the
Schedule of Contracts attached hereto), in each case in the manner and to the
effect described in Article II of the PSA;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein and in the PSA, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. All terms defined in the PSA (whether directly or by
reference to other documents) shall have such defined meanings when used herein,
unless such terms are otherwise defined herein.
2. Specification of Cut-Off Date. The "Cut-Off Date" applicable to the
Contracts conveyed hereby is April 1, 2000.
3. Conveyances. Subject to the terms and conditions provided for in
the PSA, the Depositor hereby make the assignments and conveyances specified in
Article II of the PSA as being effected by execution and delivery of this
Transfer Agreement, in each case (i) with respect to the Transferred Assets
related to and consisting in part of the Contracts and related Contract Assets
identified on the Schedule of Contracts attached hereto, and (ii) in the manner
and to the effect described in Article II of the PSA.
4. Incorporation of PSA. This Transfer Agreement is made pursuant to
and upon the representations, warranties and agreements on the part of the
parties hereto contained in the PSA and shall be governed in all respects by the
PSA.
5. Ratification of PSA. As supplemented by this Transfer Agreement,
the PSA is in all respects ratified and confirmed by the parties hereto.
6. Counterparts. This Transfer Agreement may be executed in two or
more counterparts including by telefax transmission thereof (and by different
parties on separate
A-1
<PAGE>
counterparts), each of which shall be an original, but all of which together
shall constitute one and the same instrument.
7. Governing Law. This Transfer Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of New
York.
8. Reaffirmation. As provided in Section 2.02 of the PSA, by delivery
of this Transfer Agreement the Depositor confirms that the conditions to
transfer set forth in Section 2.02 have been satisfied or otherwise waived as
described therein.
[signatures follow]
A-2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Transfer
Agreement to be executed by their respective officers thereunto duly authorized
as of the date first written above.
NCT FUNDING COMPANY, L.L.C., CIT EQUIPMENT COLLATERAL
as Depositor 2000-1
By: ALLFIRST FINANCIAL CENTER NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner
Trustee on behalf of the Trust
By: By:
A-3
<PAGE>
EXHIBIT B
Form of VFC Assignment
B-1
<PAGE>
EXHIBIT C
Initial Schedule of Contracts
C-1
<PAGE>
EXHIBIT D
Form of Servicer's Monthly Report
D-1
<PAGE>
EXHIBIT E
Form of Substitution Transfer Agreement
SUBSTITUTION TRANSFER AGREEMENT
This SUBSTITUTION TRANSFER AGREEMENT, dated _____________ ___,
_______, is by and between NCT Funding Company, L.L.C., as Depositor and
transferor, and CIT Equipment Collateral 2000-1, as transferee with respect to
the conveyances evidenced hereby.
WHEREAS, the parties named above are each parties to the Pooling and
Servicing Agreement dated as of April 1, 2000 (as from time to time amended,
supplemented or otherwise modified, the "PSA"); and
WHEREAS, pursuant to the PSA, the Depositor wishes to effect
conveyances of the Substitute Contracts (together with related Substitute
Transferred Assets), identified on the Substitution Schedule of Contracts
attached hereto, in each case in the manner and to the effect described in
Article II of the PSA; and
WHEREAS, the Servicer has delivered or caused to be delivered a
Substitution Notice with respect to such conveyance as required in the Pooling
Agreement referred to in Section 2 below;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein and in the PSA, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. All terms defined in the PSA (whether directly or by
reference to other documents) shall have such defined meanings when used herein,
unless such terms are otherwise defined herein.
2. Specification of Cut-Off Date. The "Substitution Cut-Off Date"
applicable to the Substitute Contracts conveyed hereby is ____________ ___,
_______.
3. Conveyances. Subject to the terms and conditions provided for in
the PSA, the Depositor hereby makes the assignments and conveyances specified in
Article II of the PSA as being effected by execution and delivery of this
Substitution Transfer Agreement, in each case (i) with respect to the Substitute
Contracts (together with related Substitute Transferred Assets) identified on
the Substitution Schedule of Contracts attached hereto, and (ii) in the manner
and to the effect described in Article II of the PSA.
4. Incorporation of PSA. This Substitution Transfer Agreement is made
pursuant to and upon the representations, warranties and agreements on the part
of the parties hereto contained in the PSA and shall be governed in all respects
by the PSA.
E-1
<PAGE>
5. Ratification of PSA. As supplemented by this Substitution Transfer
Agreement, the PSA is in all respects ratified and confirmed by the parties
hereto.
6. Counterparts. This Substitution Transfer Agreement may be executed
in two or more counterparts including by telefax transmission thereof (and by
different parties on separate counterparts), each of which shall be an original,
but all of which together shall constitute one and the same instrument.
7. Governing Law. This Substitution Transfer Agreement shall be
governed by, and construed and enforced in accordance with, the internal laws of
the State of New York.
8. Reaffirmation. As provided in Section 2.04(b) of the PSA, by
delivery of this Substitution Transfer Agreement the Depositor confirms that the
conditions to transfer set forth in Section 2.02 have been satisfied or
otherwise waived as described therein.
[signatures follow]
E-2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Substitution
Transfer Agreement to be executed by their respective officers thereunto duly
authorized as of the date first written above.
NCT FUNDING COMPANY, L.L.C., CIT EQUIPMENT COLLATERAL
as Depositor 2000-1
By: ALLFIRST FINANCIAL CENTER
NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Owner Trustee on behalf of the Trust
By: By:
E-3
<PAGE>
EXHIBIT F
[RESERVED]
F-1
<PAGE>
EXHIBIT G
Schedule of Representations and Warranties
(a) List of Contracts. The information set forth in the Schedule of
Contracts (as the same may be amended or deemed amended in respect of a
conveyance of Substitute Contracts on a Substitution Transfer Date) is true,
complete and correct as of the Closing Date (or Substitution Transfer Date, as
applicable).
(b) Eligible Contract. As of its applicable Cut-Off Date, each
Contract satisfied the criteria for the definition of Eligible Contract set
forth in the Pooling Agreement, and each Secondary Contract securing a Vendor
Loan constituting a Contract satisfied, as of its applicable Cut-Off Date, the
definition of Eligible Secondary Contract set forth in the Pooling Agreement.
(c) Contracts Secured by Vehicles. None of the Contracts relating to
Equipment constituting Vehicles are "true leases."
(d) Contract Files. As of the Closing Date (or as of the Substitution
Transfer Date, with respect to Substitute Contracts), (i) immediately prior to
such date, Financial (or the applicable Financing Originator as custodian for
Financial, with respect to TCC Contracts) had possession of each original
Contract and the related complete Contract File, and there were no other
custodial agreements relating to the same in effect (other than offsite storage
arrangements described in Section 4.01(b)); (ii) each of such documents which is
required to be signed by the Obligor has been signed by the Obligor in the
appropriate spaces; and (iii) the complete Contract File for each Contract is in
the possession of the Servicer.
(e) No Material Obligation. No Financing Originator has a material
performance obligation in respect of any Contract in favor of an Obligor or
End-User (it being understood that covenants of quiet enjoyment, purchase
options, obligations to accept return of the property at end of lease term, and
like obligations of a lessor typical of a "triple net" lease, shall not be
deemed "material performance obligations" for purposes of this representation).
(f) Instruments. Not more than 0.75% of the Contract Pool Principal
Balance as of the Closing Date are "Instruments" (within the meaning of Article
9 of the UCC), which evidence or relate to any Contract conveyed to the Trust on
the Closing Date.
(g) Vendor Agreements. The Receivables Purchase Agreement. dated as of
October 31, 1998, by and between DFS-SPV L.P., a Delaware limited partnership
("DFS-SPV"), and Financial, as amended by the Partial Waiver of Repurchase
Option and Amendment to Receivables Purchase Agreement, dated as of August 20,
1999, is in full force and effect and has not been amended since August 20,
1999. The Purchase Agreement, dated as of October 31, 1998, by and between Dell
Financial Services L.P., a Delaware limited partnership, and DFS-SPV, as amended
by the Partial Waiver of Repurchase Option and Amendment to Receivables Purchase
Agreement, dated as of August 20, 1999, is in full force and effect and has not
been amended since the August 20, 1999. The Financial Services Agreement, dated
as of March 9,
G-1
<PAGE>
1998, between Lucent Technologies Inc., a Delaware corporation, and Newcourt
Credit Group Inc., an Ontario corporation, is in full force and effect and has
not been amended since the date thereof. Any Contracts in which the Vendor is
NCR Corporation was purchased pursuant to the NCR Operating Agreement, dated as
of May 6, 1996, between NCR Corporation, a Maryland corporation, and AT&T
Capital Corporation (which agreement has since been terminated).
G-2
<PAGE>
EXHIBIT H
[Reserved]
H-1
<PAGE>
EXHIBIT I
[Reserved]
I-1
<PAGE>
EXHIBIT J
Minimum Value Filing Exceptions
No financing statements are filed against an Obligor located in a
particular State describing Equipment which is the subject of a particular
Contract of any Financing Originator, unless the fair market value of the
Equipment (determined in accordance with Customary Policies and Procedures)
related to such particular Contract is at least $25,000 (or, in the alternative,
at least $50,000 if such Contract is a Lease with a "fair market value" purchase
option).
J-1
<PAGE>
LOAN AGREEMENT
Among
CIT EQUIPMENT COLLATERAL 2000-1,
as the Trust,
THE CHASE MANHATTAN BANK,
as Indenture Trustee,
NCT FUNDING COMPANY, L.L.C.,
as Trust Depositor,
AT&T CAPITAL CORPORATION
in its individual capacity and as Servicer,
THE LENDER PARTIES HERETO, FROM TIME TO TIME,
as Lenders,
and
AT&T CAPITAL CORPORATION,
as Agent
Dated as of April 1, 2000
Relating to
CIT Equipment Collateral 2000-1
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I DEFINITIONS..................................................................................1
Section 1.01. Defined Terms.........................................................................1
ARTICLE II AMOUNT AND TERMS OF COMMITMENT..............................................................7
Section 2.01. Commitment.............................................................................7
Section 2.02 Payment of the Loans: Loan Account.....................................................7
Section 2.03. Interest Rate and Payment Date........................................................11
Section 2.04. Computation of Interest and Fees......................................................12
Section 2.05. Payments..............................................................................12
Section 2.06. Cash Collateral Account Administration, Direction of Eligible Investments.............12
Section 2.07. Increased Costs.......................................................................13
Section 2.08. Taxes.................................................................................15
Section 2.09. Nonrecourse and Recourse Obligations; Waiver of Setoff, Obligations Absolute..........18
Section 2.10. Indemnification.......................................................................20
ARTICLE III REPRESENTATIONS AND WARRANTIES OF DEPOSITOR AND SERVICER...................................22
Section 3.01. Corporate Existence...................................................................22
Section 3.02. Corporate Authority...................................................................22
Section 3.03. No Consents Required..................................................................23
Section 3.04. No Violation..........................................................................23
Section 3.05. No Proceeding.........................................................................23
Section 3.06. Registration and Prospectus; Other Information........................................24
Section 3.07. Trust Indenture Act; Investment Company Act...........................................24
Section 3.08. No Event of Default or Servicer Termination Event.....................................24
Section 3.09. Representations and Warranties in Transaction Documents and Regarding
Repurchase Event....................................................................24
Section 3.10. Withdrawal From the Cash Collateral Account...........................................25
Section 3.11. Adverse Selection.....................................................................25
ARTICLE IV CONDITIONS PRECEDENT.......................................................................25
Section 4.01. Representations and Warranties........................................................25
Section 4.02. Transaction Agreements................................................................25
Section 4.03. Additional Documents..................................................................25
Section 4.04. Accountant's Letter...................................................................26
Section 4.05. Note Issuance and Holdback Amount.....................................................26
Section 4.06. Secretary's Certificate...............................................................26
Section 4.07. Cash Collateral Account...............................................................26
Section 4.08. Ratings...............................................................................26
Section 4.09. Agent Fees............................................................................26
Section 4.10. Legal Opinions........................................................................26
</TABLE>
<PAGE>
<TABLE>
<S> <C>
ARTICLE V COVENANTS.....................................................................................27
Section 5.01. Performance of Agreements.............................................................27
Section 5.02. Amendments to the Pooling Agreement, Purchase and Sale Agreements and the
Indenture...........................................................................27
Section 5.03. Certificates..........................................................................27
Section 5.04. Monthly Status Reports................................................................27
Section 5.05. Default...............................................................................28
Section 5.06. Timely Payments.......................................................................28
Section 5.07. Successor Indenture Trustee...........................................................28
Section 5.08. Inspection............................................................................28
Section 5.09. Periodic Reports of the Accountants...................................................28
Section 5.10. Other Actions.........................................................................28
Section 5.11. Trust Depositor Financial Information; Other Information..............................29
Section 5.12. Lenders' Identities...................................................................29
ARTICLE VI REPRESENTATIONS AND WARRANTIES AND AGREEMENTS OF THE LENDERS................................29
Section 6.01. Representations and Warranties of the Lenders.........................................29
ARTICLE VII [RESERVED].................................................................................30
ARTICLE VIII MISCELLANEOUS.............................................................................30
Section 8.01. Amendments and Waivers................................................................30
Section 8.02. Cash Collateral Account Withdrawal Statement..........................................30
Section 8.03. Servicing Transfer....................................................................30
Section 8.04. Governing Law.........................................................................31
Section 8.05. No Waiver.............................................................................31
Section 8.06. Severability..........................................................................31
Section 8.07. Termination...........................................................................31
Section 8.08. Successors and Assigns; Assignments...................................................32
Section 8.09. Notices...............................................................................34
Section 8.10. Survival of Representations and Warranties............................................34
Section 8.11. Exclusive Benefit.....................................................................34
Section 8.12 Limitation of Remedies................................................................34
Section 8.13. Counterparts..........................................................................34
Section 8.14. Previous Agreements...................................................................35
Section 8.15. Waiver of Jury Trial..................................................................35
Section 8.16. Headings..............................................................................35
Section 8.17. Jurisdiction, Consent to Service of Process...........................................35
Section 8.18. Bankruptcy............................................................................35
Section 8.19. Nonpetition Agreements; Rights in Trust Property......................................35
Section 8.20. Agent.................................................................................36
Section 8.21. Income Tax Characterization...........................................................38
Section 8.22. Indenture Trustee.....................................................................38
Section 8.23. Confidentiality.......................................................................38
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
<S> <C>
Exhibit A - Form of [Assignment and Assumption][Participation] Agreement
Exhibit B - Form of Monthly Status Report
Exhibit C - Form of Confidentiality Agreement
</TABLE>
iii
<PAGE>
This LOAN AGREEMENT, dated as of April 1, 2000 (this "Agreement"), among
CIT EQUIPMENT COLLATERAL 2000-1 (the "Trust"), THE CHASE MANHATTAN BANK, not in
its individual capacity but solely as indenture trustee (the "Indenture
Trustee"), NCT FUNDING COMPANY, L.L.C., a Delaware limited liability company, as
trust depositor (in its capacity as trust depositor, together with its
successors, the "Trust Depositor"), AT&T CAPITAL CORPORATION, in its individual
capacity (in such capacity, "TCC") and as servicer (in such capacity, together
with its successors and assigns, the "Servicer"), the Lender Parties hereto from
time to time as lenders (each individually a "Lender" and, collectively, the
"Lenders") and AT&T CAPITAL CORPORATION, as agent for the Lenders (together with
its successors in such capacity, the "Agent").
WHEREAS, the Trust Depositor, the Servicer, the Trust and Newcourt
Financial USA Inc., a Delaware corporation ("NFUSA") have entered into a Pooling
and Servicing Agreement, dated as of April 1, 2000 (as the same may from time to
time be amended, modified or otherwise supplemented, the "Pooling Agreement"),
for the Trust; and
WHEREAS, the Trust proposes to issue and sell a Series of Receivable-Backed
Notes (the "Notes") divided into eight classes in the manner designated pursuant
to an Indenture, dated April 1, 2000, between the Trust and the Indenture
Trustee (as the same may be further amended, supplemented or otherwise modified
from time to time, the "Indenture"); and
WHEREAS, the Trust proposes to issue a certificate (the "Equity
Certificate") pursuant to an Amended and Restated Trust Agreement, dated as of
April 1, 2000 (the "Trust Agreement"), between the Trust Depositor and the Owner
Trustee; and
WHEREAS, it is a condition to the issuance of such Notes that the Lenders
enter into this Agreement and make the Loans provided for herein;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and other good and valuable consideration, the receipt and adequacy of which are
hereby expressly acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.
(a) Unless otherwise defined herein, all capitalized terms used in this
Agreement shall have the meanings given to them in the Pooling Agreement (as
defined below).
(c) The following terms shall have the following meanings:
"Act" shall mean the Securities Act of 1933, as amended.
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"Agreement" shall mean this Loan Agreement as the same may be further
amended, supplemented or otherwise modified from time to time.
"Assignment" has the meaning assigned thereto in Section 8.08(b).
"Assignment Agreement" shall mean an agreement substantially in the form of
Exhibit A hereto.
"Available Funds" shall mean, with respect to each Payment Date, the sum of
(a) the amount distributed by the Servicer or the Indenture Trustee pursuant to
Section 7.05(a)(v) of the Pooling Agreement to be applied in accordance with
this Agreement on such Payment Date, and (b) Investment Earnings with respect to
such Payment Date.
"Cash Collateral Account Surplus" means, as of any Payment Date, the
amount, if any, by which the amount on deposit in the Cash Collateral Account
exceeds the Required Cash Collateral Amount (after giving effect to any
distributions to be made pursuant to Section 8.02 of the Indenture and Section
2.02(c) of this Agreement and any withdrawals pursuant to Section 7.05(d) of the
Pooling Agreement, in each case with respect to such Payment Date).
"Commission" shall mean the Securities and Exchange Commission.
"Commitment" shall mean, as to each Lender, the obligation of such Lender
to fund its portion of the Loan in an amount equal to the amount of its Total
Commitment.
"Confidentiality Agreement" shall mean an agreement substantially in the
form of Exhibit C hereto.
"Dollars" and "$" shall mean the lawful currency of the United States of
America.
"Early Termination Date" shall mean the date, if any, on which the Trust
Depositor shall purchase the corpus of the Trust pursuant to Section 7.08 of the
Pooling Agreement.
"Eligible Investments" shall mean any investment (including deposits with,
or securities issued by, a Lender or the Agent) that is one of the following
types of investments:
(i) direct obligations of, and obligations fully guaranteed by, the
United States of America, the Federal Home Loan Mortgage Corporation (if
then rated Aaa by Moody's), the Federal National Mortgage Association, or
any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America and which are non-callable;
(ii) demand and time deposits in, certificates of deposit of, bankers'
acceptances issued by, or federal funds sold by any depository institution
or trust company (including the Trustees or any Affiliate of the Trustees,
acting in their commercial capacity) incorporated under the laws of the
United States of America or any state thereof or the District of Columbia
(or any domestic branch or agency of a foreign
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bank) and subject to supervision and examination by federal and/or
state authorities, so long as, at the time of such investment or
contractual commitment providing for such investment, the commercial paper
or other short-term debt obligations of such depository institution or
trust company have been rated at least P-1 or higher from Moody's and A-1+
from Standard & Poor's; or any other demand or time deposit or certificate
of deposit which is fully insured by the Federal Deposit Insurance
Corporation and which is rated at least P-1 by Moody's;
(iii) repurchase obligations with respect to any security described in
either clause (i) or (ii) above and entered into with any institution whose
commercial paper is at least rated P-1 from Moody's and at least A-1+ by
Standard & Poor's;
(iv) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or
any State thereof which have a credit rating of at least A2 or P-1 from
Moody's and at least AAA from Standard & Poor's at the time of such
investment (or, with respect to the investment of any amounts on deposit in
the Certificate Distribution Account, such Standard & Poor's rating shall
be at least A);
(v) commercial paper (which may be issued by CIT) having a rating of
at least P-1 from Moody's and at least A-1+ from Standard & Poor's at the
time of such investment;
(vi) money market funds which are rated Aaa by Moody's and at least
AAAm or AAAm-G by Standard & Poor's, including funds which meet such rating
requirements for which the Trustees or an affiliate of the Trustees serves
as an investment advisor, administrator, shareholder servicing agent and/or
custodian or subcustodian, notwithstanding that (i) such Trustee or an
affiliate of such Trustee charges and collects fees and expenses from such
funds for services rendered, (ii) such Trustee charges and collects fees
and expenses for services rendered pursuant to this instrument, and (iii)
services performed for such funds and pursuant to this instrument may
converge at any time. (The Seller and the Servicer specifically authorize
such Trustee or an affiliate of such Trustee to charge and collect all fees
and expenses from such funds for services rendered to such funds, in
addition to any fees and expenses such Trustee may charge and collect for
services rendered pursuant to this instrument); and
(vii) any other investments approved by the Rating Agencies.
No Eligible Investment may have an "r" or comparable symbol affixed to its
rating.
"Governmental Authority" shall mean any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Holdback Amount" shall have the meaning assigned thereto in Section 2.01.
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"Holdback Amount Rate" shall mean, with respect to any Loan Interest
Period, a per annum rate equal to the LIBOR Rate determined for such Loan
Interest Period plus 5.25% per annum.
"Income Taxes" has the meaning assigned thereto in Section 2.08(b).
"Indemnitee" has the meaning assigned thereto in Section 2.10(a).
"Invested Share" has the meaning assigned thereto in Section 2.06.
"Investment Earnings" shall mean, with respect to any Payment Date, all
interest and investment earnings (net of losses and investment expenses) on
Eligible Investments made with funds on deposit in the Cash Collateral Account
and received during the Loan Interest Period immediately preceding such Payment
Date.
"Lending Office" shall mean initially, the office (if any) of a Lender
designated as such, in the case of any Lender listed on the signature pages
hereof, with its signature hereto and, in the case of any assignee, in Schedule
II to the related Assignment Agreement, and thereafter, such other office of
such Lender that shall be making or maintaining its Loan, the address of which
other office shall have been previously provided to the Trust Depositor, the
Servicer and the Agent in writing.
"LIBOR Business Day" means any day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency deposits)
in London and New York.
"LIBOR Rate" shall mean (x) with respect to the initial Loan Interest
Period, 6.375% and (y) with respect to any Loan Interest Period or portion
thereof, the rate per annum shown on page 3750 of the Telerate screen or any
successor page as the composite offered rate for London interbank deposits for a
period of one month, as shown under the heading "USD" as of 11:00 a.m. (London
Time) two LIBOR Business Days prior to the first day of such Loan Interest
Period; provided that in the event no such rate is shown, the LIBOR Rate shall
be the rate per annum (rounded upwards, if necessary, to the nearest 1/16th of
one percent) based on the rates at which Dollar deposits for a period of one
month are displayed on page "LIBOR" of the Reuters Monitor Money Rates Service
or such other page as may replace the LIBOR page on that service for the purpose
of displaying London interbank offered rates of major banks as of 11:00 a.m.
(London time) two LIBOR Business Days prior to the first day of such Loan
Interest Period (it being understood that if at least two such rates appear on
such page, the rate will be the arithmetic mean of such displayed rates);
provided further, that in the event fewer than two such rates are displayed, the
LIBOR Rate shall be the rate per annum equal to the average of the rates at
which deposits in Dollars are offered by the Reference Banks at approximately
11:00 a.m. (London time) two LIBOR Business Days prior to the first day of such
Loan Interest Period to prime banks in the London interbank market for a period
of one month, it being understood that if at least two such quotations are
provided, the rate shall be the arithmetic mean of such provided rates; provided
further that if fewer than two such rates are provided, the rate shall be the
arithmetic mean of the rates quoted by major banks in New York City, selected by
the
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Servicer, approximately 11:00 a.m. (New York City time) on the first day of
such Loan Interest Period to leading European banks for Dollar deposits for a
period of one month. If the LIBOR Rate cannot be determined for a Loan Interest
Period in accordance with the foregoing, the LIBOR Rate for such Loan Interest
Period shall be equal to the LIBOR Rate for the immediately preceding Loan
Interest Period.
"Loan" has the meaning assigned thereto in Section 2.01.
"Loan Interest Period" shall mean (a) with respect to the initial Payment
Date, the period from and including the Closing Date to but excluding the
initial Payment Date and (b) with respect to each subsequent Payment Date, the
period from and including the Payment Date immediately preceding such Payment
Date to but excluding such subsequent Payment Date.
"Loan Rate" shall mean, with respect to any Loan Interest Period, a per
annum rate equal to the LIBOR Rate determined for such Loan Interest Period plus
3.00% per annum.
"NFUSA" shall mean Newcourt Financial USA Inc.
"Officer's Certificate" shall mean a certificate delivered to the Agent and
signed by any authorized officer of the Trust Depositor or TCC, as the case may
be.
"Participant" has the meaning assigned thereto in Section 8.08(f).
"Pooling Agreement" shall mean the Pooling and Servicing Agreement, dated
as of April 1, 2000 by and among the Trust Depositor, the Trust, TCC
(individually and as Servicer) and NFUSA.
"Pro Rata Share" shall mean, as of any date of determination with respect
to each Lender, the percentage equivalent of a fraction the numerator of which
shall be an amount equal to the portion of the unpaid principal amount of the
Loan owing to such Lender at such time (after giving effect to all Assignments
effective on or prior to such date of determination) and the denominator of
which shall be an amount equal to the unpaid principal amount of all of the
Lenders' Loans at such time.
"Prospectus" shall mean the prospectus and prospectus supplement as filed
with the Commission under Rule 424(b) of the Act relating to the Notes.
"Reference Banks" shall mean the principal London offices of three major
banks in the London interbank market selected by the Agent.
"Registration Statement" shall mean the registration statement on Form S-3
(Registration No. 333-74847), as amended from time to time and including
incorporated documents and exhibits, filed by the Trust Depositor with the
Commission pursuant to the Act relating to the Notes to be issued by the Trust.
"Regulatory Change" shall mean, as to any or all of the initial Lenders,
any change occurring after the date of the execution and delivery of this
Agreement (or, in the case of any
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assignee Lender, the effective date of the related Assignment Agreement),
in any (or the adoption after such date of any new):
(i) United States federal or state law or foreign law applicable to
such Lender; or
(ii) regulation, interpretation (whether formal or informal),
directive, guideline or request (whether or not having the force of law)
applicable to such Lender of any court or other judicial authority or any
Governmental Authority charged with the interpretation or administration of
any law referred to in clause (i) or of any fiscal, monetary or other
authority or central bank or other comparable entity having jurisdiction
over such Lender.
"Repayment Amount" shall mean the sum of all amounts payable with respect
to the aggregate principal amount of the Lenders' Loans and interest on such
Loans and all other amounts owing to the Agent (other than under Section
8.20(d)) and the Lenders hereunder.
"Required Cash Collateral Amount" shall have the meaning specified in
Section 1.01 of the Pooling Agreement.
"Required Lenders" means, such Lenders whose Pro Rata Shares in the
aggregate represent at least 51% of the unpaid principal amount of the Loans of
the Lenders.
"Service Transfer" shall mean the occurrence of a Servicer Termination
Event and the appointment of a successor Servicer pursuant to Section 8.03 of
the Pooling Agreement.
"Taxes" has the meaning assigned thereto in Section 2.08(b).
"Termination Date" shall mean the earlier of (i) the date on which the
Indenture is terminated in accordance with its terms or (ii) May 20, 2009.
"Total Commitment" shall mean, with respect to a Lender, the amount set
opposite such Lender's name on the signature pages hereof or on Schedule I to an
Assignment Agreement pursuant to which such Lender acquired an interest
hereunder as its "Total Commitment," as the same may be reduced pursuant to an
Assignment pursuant to which such Lender shall have assigned all or a portion of
such interest.
Section 1.02. Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; and Section, subsection,
Schedule, Attachment and Exhibit
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references are to this Agreement, unless otherwise specified. The words
"including" and "include" shall be deemed to be followed by the words "without
limitation".
ARTICLE II
AMOUNT AND TERMS OF COMMITMENT
Section 2.01. Commitment. Subject to the terms and conditions hereof, each
of the Lenders agree, at the request of and for the benefit of, the Trust
Depositor, to make their respective loans to the Trust (each, a "Loan") on the
Closing Date in a principal amount equal to the amount set forth as each such
Lender's Commitment opposite its name on the signature pages hereof, the
proceeds of which Loans, immediately upon the making of such Loans, shall be
deposited directly into the Cash Collateral Account in accordance herewith. The
aggregate initial balance of the Loans is $9,492,882. It will be a condition to
the obligations of the Lenders to make such Loans that the Trust retain
$32,275,797 from the proceeds of the sale of the Notes pursuant to the Indenture
and as described in the Underwriting Agreement, and deposit such amount into the
Cash Collateral Account on the Closing Date (the "Holdback Amount").
Section 2.02. Payment of the Loans; Loan Account.
(a) Subject to the provisions of Section 2.09 relating to the nonrecourse
nature of the obligation to pay the Repayment Amount, the Loans shall be due and
payable in full on the Termination Date, unless otherwise payable in whole or in
part on such earlier date provided under this Agreement. Subject to Section
2.09, the Indenture Trustee, on behalf of the Trust, agrees to reduce and prepay
the Loans in whole or in part as specified herein from Available Funds and, to
the extent not previously repaid, to repay the Loans in full on the Termination
Date, as provided in Sections 2.02(c), 2.02(d), 2.02(e), 2.02(f) and 2.02(g). No
payments shall be made in respect of the unpaid principal amount of the Holdback
Amount until the Loans are paid in full.
(b) Each Lender is authorized to record (A) the date and amount of its
Total Commitment, (B) the date and amount of each payment and repayment of
principal of its Loan and (C) the interest rate or rates from time to time in
effect with respect to its Loan and the Loan Interest Periods applicable thereto
in the books and records of such Lender and in such manner as is customary for
such Lender. A certificate of an officer of such Lender, prepared in good faith
setting forth in reasonable detail the information so recorded, shall constitute
prima facie evidence of the accuracy of the information so recorded; provided
that the failure to make any such recording shall not in any way affect the
obligations of the Trust Depositor, the Servicer, the Trust, or the Indenture
Trustee hereunder.
(c) On each Payment Date (if such date is not the Termination Date), the
Indenture Trustee at the written direction of the Servicer upon which the
Indenture Trustee may conclusively rely shall distribute Available Funds with
respect to such date to the following Persons or accounts in the order of
priority listed below:
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(i) to the extent not previously paid, an amount equal to all interest
(including interest on previously unpaid interest amounts) due on the
Loans, as calculated in accordance with Sections 2.03 and 2.04, shall be
paid to the Agent for distribution to the Lenders in accordance with their
respective Pro Rata Share;
(ii) [reserved];
(iii) after giving effect to any payment made on such Payment Date
under Section 2.02(d)(i), an amount, not to exceed the unpaid principal
amount of the Loans, equal to the excess, if any, of (x) the aggregate
unpaid principal amount of the Lenders' Loans and the Holdback Amount as of
such date over (y) the amount on deposit in the Cash Collateral Account as
of such date (determined after giving effect to all deposits to and
withdrawals from the Cash Collateral Account with respect to such Payment
Date), shall be paid to the Agent for distribution to the Lenders in
accordance with their respective Pro Rata Share as a prepayment of the
Loans;
(iv) after giving effect to any payment made on such Payment Date
under Sections 2.02(d)(i) and 2.02(c)(iii), from and after the Payment Date
on which the Aggregate Principal Amount of the Notes is less than 10% of
the initial Contract Pool Principal Balance, an amount up to the unpaid
principal amount of the Loans, shall be paid to the Agent for distribution
to the Lenders in accordance with their respective Pro Rata Share as a
prepayment of the Loans;
(v) [reserved];
(vi) [reserved];
(vii) an amount equal to the sum of all fees, expenses and other
amounts due and payable to the Lenders under Sections 2.07, 2.08 and 2.10
shall be paid to the Agent for distribution to the Lenders.
(viii) [reserved];
(ix) to the extent not previously paid, an amount equal to all
interest (including interest on previously unpaid interest amounts) due on
the Holdback Amount, as calculated in accordance with Sections 2.03 and
2.04, shall be paid to the Trust Depositor; and
(x) after giving effect to any payment made on such Payment Date under
Section 2.02(d)(vii), if, on such Payment Date, the Loans have been paid in
full, an amount equal to the excess, if any, of (x) the aggregate unpaid
principal amount of the Holdback Amount as of such date over (y) the amount
on deposit in the Cash Collateral Account as of such date (determined after
giving effect to all deposits to and withdrawals from the Cash Collateral
Account with respect to such Payment Date), shall be paid to the Trust
Depositor.
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(d) On any Payment Date on which there is a Cash Collateral Account Surplus
(if such date is not the Termination Date), the Indenture Trustee, at the
written direction of the Servicer upon which the Indenture Trustee may
conclusively rely, shall pursuant to Section 7.02(b) of the Pooling Agreement
and this Agreement, withdraw from the Cash Collateral Account an amount equal to
the Cash Collateral Account Surplus and apply such amount in the order of
priority listed below:
(i) an amount up to the unpaid principal amount of the Loans, shall be
paid to the Agent for distribution to the Lenders in accordance with their
respective Pro Rata Share as a prepayment of the Loans;
(ii) [reserved];
(iii) after giving effect to any payment made on such Payment Date
under Section 2.02(c), to the extent not previously paid, an amount equal
to all interest (including interest on previously unpaid interest amounts)
due on the Loans, as calculated in accordance with Sections 2.03 and 2.04,
shall be paid to the Agent for distribution to the Lenders in accordance
with their respective Pro Rata Share;
(iv) [reserved];
(v) an amount equal to the sum of all fees, expenses and other amounts
due and payable to the Lenders under Sections 2.07, 2.08 and 2.10 shall be
paid to the Agent for distribution to the Lenders;
(vi) [reserved];
(vii) if, on such Payment Date, the Loans have been paid in full, an
amount up to the unpaid principal amount of the Holdback Amount, shall be
paid to the Trust Depositor as a prepayment of the Holdback Amount; and
(viii) the balance, if any, shall be paid to the Trust Depositor.
(e) On the Termination Date (including any Early Termination Date), all
Available Funds and all amounts on deposit in the Cash Collateral Account on
such date (after giving effect to all withdrawals from the Cash Collateral
Account required to be made on such date with respect to the Notes) shall be
paid by the Indenture Trustee, at the written direction of the Servicer upon
which the Indenture Trustee may conclusively rely, in the order of priority
listed below:
(i) an amount equal to all interest (including interest on previously
unpaid interest amounts) owed to the Lenders shall be paid to the Agent for
distribution to the Lenders in accordance with their respective Pro Rata
Share;
(ii) [reserved];
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(iii) an amount equal to the aggregate unpaid principal amount of the
Loans shall be paid to the Agent for distribution to the Lenders in
accordance with their respective Pro Rata Share;
(iv) [reserved];
(v) an amount equal to all amounts due to increased costs owed to the
Lenders in accordance with Section 2.02(c)(vii) shall be paid to the Agent
for distribution to the Lenders;
(vi) [reserved];
(vii) an amount equal to all unpaid interest owed to the Trust
Depositor and the unpaid balance of the Holdback Amount shall be paid to
the Trust Depositor (assuming for this purpose that any portion of
Available Funds described in clause (a) of the definition thereof is
applied to this clause (vii) only after all other Available Funds and all
amounts available in the Cash Collateral Account have been fully utilized);
and
(viii) the balance, if any, in the Cash Collateral Account shall be
paid to the Equity Certificateholder.
(f) Unless all of the Lenders agree otherwise, in the event that (i) an
Early Termination Date shall have occurred and (ii) each Lender has not been
paid its Pro Rata Share of the Repayment Amount in full on or prior to such
Early Termination Date, the Indenture Trustee, at the written direction of the
Servicer upon which the Indenture Trustee may conclusively rely, shall pay to
the Agent on behalf of the Lenders for application in accordance with
subsections 2.02(e)(i)-(viii) all amounts payable to (x) the Cash Collateral
Account pursuant to Section 7.05(a)(v) of the Pooling Agreement with respect to
such Early Termination Date or (y) the Lenders (for application pursuant to this
Agreement) pursuant to Section 7.05(a)(v) of the Pooling Agreement with respect
to such Early Termination Date. Thereafter, the Notes shall be deemed to remain
outstanding as if such Early Termination Date had not occurred and (i) the Trust
Depositor, the Servicer, the Trust and the Indenture Trustee shall (subject to
Section 5.01) continue to perform all of their obligations, as specified under
the Pooling Agreement, the Indenture and the other Transaction Documents, for
the benefit of the Lenders regardless of the occurrence of such Early
Termination Date and (ii) the Trust Depositor or the Servicer, as the case may
be, shall have the right to receive and the Indenture Trustee shall so remit
based upon the written directions of the Servicer upon which the Indenture
Trustee may conclusively rely all amounts received by the Trust Depositor or the
Servicer which would constitute all amounts that would otherwise be available
for distribution pursuant to Section 7.05 of the Pooling Agreement, to the
extent such amounts would have been payable to the Noteholders, or to the
Servicer as its Servicing Fee, pursuant to the Indenture or the Pooling
Agreement, and the remainder of such amounts (to the extent such amounts would
have been payable to the Cash Collateral Account or to the Lenders (for
application in accordance with the terms of this Agreement) had the Early
Termination Date not occurred) shall be paid to the Agent on behalf of the
Lenders until the earlier of (A) the date the Repayment Amount and all other
amounts payable to each Lender hereunder shall have been paid in full and (B)
the date on which the Notes would have been paid
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in full (assuming such Early Termination Date is disregarded as described
above and after giving effect to any distributions which would be made to the
Cash Collateral Account or the Lenders on such date).
(g) In the event that (i) a withdrawal from the Cash Collateral Account has
been made pursuant to Section 7.05(d) of the Pooling Agreement on the final
Maturity Date or on any Payment Date described in Section 7.05(d)(iii) of the
Pooling Agreement, (ii) the Notes have been paid in full, and (iii) each Lender
has not been paid its Pro Rata Share of the Repayment Amount in full on or prior
to the date of such withdrawal, the Notes shall thereafter be deemed to remain
outstanding as if the final Maturity Date with respect to the Notes or such
Payment Date had not occurred and (x) the Trust Depositor, the Servicer, the
Trust and the Indenture Trustee shall (subject to Section 5.01) continue to
perform all of their obligations, as specified under the Pooling Agreement, the
Indenture and the other Transaction Documents, for the benefit of the Lenders
regardless of the occurrence of such final Maturity Date and (y) the Lenders
shall have the right to receive and the Indenture Trustee shall remit pursuant
to the written instructions of the Servicer upon which the Indenture Trustee may
conclusively rely, in accordance with the provisions of Section 7.05(a) of the
Pooling Agreement, all amounts, up to an amount equal to the Repayment Amount,
received by the Trust Depositor or the Servicer, which amounts would constitute
payments to the Lenders in respect of the Loans, to the extent such amounts
would have been payable to the Noteholders, the Cash Collateral Account or the
Lenders and the remainder of such amounts shall be paid to the Trust Depositor
(to the extent of any unpaid interest owed to the Trust Depositor and the unpaid
balance of the Holdback Amount) or the Equity Certificateholder until the
earlier of (A) the date the Repayment Amount and all other amounts payable to
each Lender hereunder shall have been paid in full or (B) the date on which the
Notes would have been paid in full (assuming such final Maturity Date is
disregarded as described above and after giving effect to any distributions that
would be made to the Cash Collateral Account or the Lenders on such date).
Section 2.03. Interest Rate and Payment Date.
(a) Each Loan shall bear interest during each Loan Interest Period at a
rate per annum equal to the Loan Rate. The Holdback Amount shall bear interest
during each Loan Interest Period at a rate per annum equal to the Holdback
Amount Rate.
(b) Interest on the principal amount of all of the Lenders' Loans and the
Holdback Amount outstanding from time to time shall be payable monthly in
arrears on each Payment Date, as provided in subsections 2.02(c) and (d) and on
the Termination Date as provided in subsection 2.02(e).
(c) Except as otherwise provided herein, if any amount of interest or any
other Repayment Amount shall not be paid on the date that such amount becomes
due and payable hereunder, such overdue amount shall bear interest at a rate per
annum equal to the Loan Rate applicable from time to time plus 1.00% per annum,
in the case of the Loan, or the Holdback Amount Rate applicable from time to
time plus 1.00% per annum, in the case of the Holdback Amount, for each day from
and including the date of such nonpayment to but excluding the date such overdue
amount is paid in full (after, as well as before, judgment).
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Section 2.04. Computation of Interest and Fees.
(a) Interest calculated by reference to the LIBOR Rate shall be calculated
on the basis of a 360-day year for the actual days elapsed. The Agent shall
calculate each LIBOR Rate and shall notify in writing the Servicer and the
Indenture Trustee of each determination of the respective rates applicable from
time to time, in each case as soon as practicable (but in no event later than
five Business Days) after determination of LIBOR for each Loan Interest Period.
(b) Any up-front or ongoing fees and expenses payable to the Agent shall be
paid by the Trust Depositor or the Servicer as agreed to by the parties.
Section 2.05. Payments. All payments to be made hereunder to the Lenders,
whether on account of principal, interest, fees or otherwise, shall be made
without set-off (other than as specified in Section 2.06(c) below) or
counterclaim and prior to 1:00 p.m., New York City time, on the due date thereof
in Dollars and in immediately available funds. All payments to the Lenders shall
be made to the Agent's account specified in Section 8.10(b), and shall be
distributed promptly by the Agent to the parties entitled thereto in the same
type of funds received at their respective addresses pursuant to Section 8.10.
Section 2.06. Cash Collateral Account Administration, Direction of Eligible
Investments.
(a) The Indenture Trustee shall, for the benefit of the Noteholders, the
Lenders and the Trust Depositor, as their interests appear in the Indenture, the
Pooling Agreement and herein, (i) maintain the Cash Collateral Account in
accordance with Sections 7.01 and 7.03 of the Pooling Agreement, (ii) invest
funds on deposit in the Cash Collateral Account in Eligible Investments in
accordance with the written instructions of the Servicer and (iii) otherwise
comply with the provisions of the Indenture and Pooling Agreement as such
provisions relate to the Cash Collateral Account or such Eligible Investments.
Notwithstanding the above, each Lender may give the Servicer written
investment instructions from time to time with respect to Eligible Investments
provided by such Lender which such Lender desires to be acquired with its Pro
Rata Share (as to each Lender, its "Invested Share") of the funds available for
investment in the Cash Collateral Account, provided that (i) such Lender is
rated sufficiently to qualify such investments as Eligible Investments, (ii)
such Lender pays a minimum yield equal to the then applicable LIBOR Rate for the
corresponding Loan Interest Period on such Invested Share, and (iii) such
investments will commence on the beginning of such Loan Interest Period and
mature on the last day of such Loan Interest Period. In the absence of such
instructions from a Lender, the Servicer will direct the investment of such
Lender's Invested Share of such funds in such Eligible Investments as the
Servicer shall deem appropriate in its sole discretion. Funds available for
investment in the Cash Collateral Account in excess of the aggregate of the
Invested Shares of all Lenders will be invested in such Eligible Investments as
the Servicer shall deem appropriate in its sole discretion.
(b) Without limiting any claim which the Trust, the Owner Trustee, the
Indenture Trustee, the Trust Depositor, the Servicer or any other Lender may
have against the
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instructing Lender, in no event shall the Servicer have any responsibility
or liability to the Trust, the Owner Trustee, the Indenture Trustee, the Trust
Depositor, the Servicer or any other Lender or other Person for any direction
given to the Indenture Trustee (or other holder of the Cash Collateral Account)
or other action taken to the extent such direction is given or action is taken
at the written instruction of a Lender as provided in this Section 2.06. The
Indenture Trustee shall not be liable for investment losses on Eligible
Investments selected by the Servicer pursuant to this Section 2.06.
(c) To the extent that a Lender's Invested Share of funds in the Cash
Collateral Account are invested in Eligible Investments issued by such Lender,
(i) such Lender shall retain the Investment Earnings due on such Eligible
Investments, which amounts shall be applied by such Lender to pay, and such
retention shall constitute (to the extent of such retention) a payment and
discharge of, accrued interest on the outstanding portion of the Loan of such
Lender as contemplated by Section 2.02 hereof, and (ii) on any date on which the
principal amount of the Loan from such Lender is to be repaid or prepaid as
provided in this Agreement from funds available therefor from the Cash
Collateral Account, such Lender shall be entitled to retain from any such
Eligible Investment the amount of such repayment or prepayment, which amount
shall be applied by such Lender to repay or prepay, and such retention shall
constitute a payment or prepayment of, such principal amount of such Loan. Each
Lender agrees that any retention under this Section 2.06(c) is merely an
administrative convenience and is not intended to change the amount of funds
that would otherwise be on deposit in the Cash Collateral Account and available
for the benefit of the Noteholders. Accordingly, each Lender agrees that such
retention shall only occur to the extent that funds which are intended to be
distributed to the Lenders in accordance herewith and which are the basis for a
retention, are actually available for such purpose and, if for any reason such
funds are not available, no Lender shall be entitled to retain any amounts with
respect thereto. To the limited extent provided in this subsection 2.06(c), each
Lender shall have a right of off-set against its Invested Share of funds in the
Cash Collateral Account and Investment Earnings thereon; provided that no
exercise of such right of off-set shall constitute a release or satisfaction of
such obligation, except to the extent so retained and applied.
Section 2.07. Increased Costs.
(a) Subject to the provisions of Section 2.09 relating to the nonrecourse
nature of the obligation to pay the Repayment Amount, if any Regulatory Change
after the date hereof (or, in the case of any assignee Lender, after the
effective date of the relevant Assignment Agreement) imposes, modifies or holds
applicable any reserve, deposit, capital adequacy, compulsory loan or similar
requirement against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any other
acquisition of funds by, the Lending Office of such Lender; and the result of
the foregoing is to increase the cost to such Lender due to maintaining its Loan
or issuing Eligible Investments, or to reduce any amount receivable or payment
due hereunder in respect thereof then, and in any such case, after submission by
such Lender to the Owner Trustee, the Indenture Trustee, the Trust Depositor and
the Servicer (with a copy to the Agent) of a written request therefor, the
Servicer shall direct the Indenture Trustee in writing to, and, at such
direction, the Indenture Trustee shall, pay to such Lender, but only from
amounts which are then or thereafter become available pursuant to Section
2.02(c), (d) or (e), any additional amounts necessary to compensate such Lender
for such
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increased cost or reduced amount receivable. Any amounts required to be
paid pursuant to the preceding sentence shall be paid on the first Payment Date
that occurs at least 30 days following demand thereof and interest at the Loan
Rate shall accrue on any amount unpaid after such Payment Date.
(b) Subject to the provisions of Section 2.09 relating to the nonrecourse
nature of the obligation to pay the Repayment Amount, if any Lender shall have
reasonably determined that any Regulatory Change after the date hereof (or, in
the case of any assignee Lender, after the effective date of the relevant
Assignment Agreement) regarding capital adequacy has the effect of reducing the
rate of return on such Lender's capital as a consequence of its Commitment or
its obligations hereunder, under its Loan, to a level below that which such
Lender or such corporation could have achieved but for such Regulatory Change
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then, from time to time, after submission by such Lender to the Owner Trustee,
the Indenture Trustee, the Trust Depositor and the Servicer (with a copy to the
Agent) of a written request therefor, the Servicer shall direct the Indenture
Trustee in writing to, and, at such direction, the Indenture Trustee shall pay
to such Lender, but only from amounts which are then, or thereafter become,
available pursuant to Section 2.02(c), (d) or (e), such additional amount or
amounts as will compensate such Lender for such reduction. Any amounts required
to be paid pursuant to the preceding sentence shall be paid on the first Payment
Date that occurs at least 30 days following demand thereof and interest at the
Loan Rate, shall accrue on any amount unpaid after such Payment Date.
(c) Each Lender agrees that it shall use its best efforts to take any
necessary actions, including, subject to applicable law and only if such change
will not alter, in a way deemed by such Lender to be material, its obligations
under this Agreement, designating a different Lending Office for its Loan, that
will avoid the need for, or reduce the amount of, any increased amounts referred
to in Section 2.07(a) or (b); provided that no such Lender shall be obligated to
take any actions that would, in the reasonable opinion of such Lender, be
unlawful or otherwise disadvantageous to such Lender or would result in any
unreimbursed cost or expense to such Lender which cost and expense would not
have been incurred but for such actions. If any increased amounts referred to in
Section 2.07(a) or (b) shall not be eliminated or reduced by the designation of
a different Lending Office or other actions taken by the affected Lender and
payment thereof hereunder shall not be waived by such Lender within 15 days
after the Trust Depositor shall have given written notice to such Lender and the
Agent of its intent to replace such Lender, the Trust Depositor shall have the
right to (A) request in writing that the Agent assist the Trust Depositor, and
the Agent hereby agrees upon receipt of such request to assist the Trust
Depositor, to obtain a replacement lender for such Lender that is acceptable to
the Trust Depositor or (B) itself seek to replace the Lender hereunder with a
new lender which is reasonably acceptable to the Agent; provided that (i) such
Lender shall not be replaced hereunder with a new lender until such Lender has
been repaid in full all amounts owed to it pursuant to this Agreement and (ii)
if the Lender to be replaced is the Agent, a replacement Agent shall have been
appointed by the remaining Lenders and the Agent to be replaced shall have been
paid all amounts owing to it as Agent pursuant to this Agreement; provided
further, that the Trust Depositor shall provide the Lender to be replaced with
an Officer's Certificate stating that such new lender has advised the Trust
Depositor that it is not then subject to, or has agreed not to
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seek, all or a portion of such increased amounts. Subject to the provisions
of this Section 2.07(c), each affected Lender hereby agrees to assign all of its
rights and obligations to such replacement Lender pursuant to an Assignment
Agreement, subject to payment in full of such affected Lender's Loan, together
with all accrued interest, fees and other amounts due to it hereunder (including
amounts due it under this Section 2.07).
(d) Each Lender claiming increased amounts described in Section 2.07(a) or
(b) will furnish to the Trust Depositor, the Owner Trustee, the Indenture
Trustee and the Servicer an officer's certificate prepared in good faith setting
forth in reasonable detail the basis and amount of each request by such Lender
for any such increased amounts referred to in Section 2.07(a) or (b).
Determinations by a Lender of any increased amounts referred to in Section
2.07(a) or (b) shall be (i) made without regard to any participations in its
Loan sold by such Lender and as if such Lender held for its own account the
amount of the Loan so participated and (ii) prima facie evidence of such
increased costs.
(e) Notwithstanding any provisions of this Agreement, any Lender (other
than a Lender which acquires its assignment directly from the initial Lender)
who has assumed the rights and obligations of another Lender shall not be
entitled to receive any greater payment under Section 2.07(a) or (b) or 2.08(b)
than such other Lender would have been entitled to receive with respect to the
rights and obligations so assigned if such Assignment shall have been made at a
time when the circumstances giving rise to such greater payment were in
existence, unless the Trust Depositor shall have consented in writing to such
Assignment in accordance with Section 8.09(b).
(f) Failure on the part of any Lender to demand compensation for any amount
pursuant to Section 2.07(a) or (b) with respect to any period shall not
constitute a waiver of such Lender's right to demand compensation with respect
to such period; provided, however, that a Lender shall not be required to be
compensated for any such amount relating to any period ending, and of which such
Lender has had knowledge, more than six months prior to the date that such
Lender notifies the Servicer in writing thereof. Each Lender agrees to use its
reasonable efforts to notify the Servicer upon obtaining actual knowledge of any
increased amounts described in Section 2.07(a) or (b) incurred or to be incurred
by such Lender for which such Lender plans on seeking compensation pursuant to
Section 2.07(a) or (b); provided, however, that, subject to the proviso set
forth in the preceding sentence, failure to so notify the Servicer shall not
constitute a waiver of such Lender's right to demand such compensation, or
reduce the amount of such compensation that such Lender may demand.
Section 2.08. Taxes.
(a) The Trust Depositor and any successor Trust Depositor covenants and
agrees that for United States federal, state and local income and franchise tax
purposes (i) it is the beneficial owner of the Cash Collateral Account for tax
purposes and (ii) it will report Investment Earnings on the Cash Collateral
Account as its income and pay any tax thereon.
(b) Subject to the provisions of Section 2.09 relating to the nonrecourse
nature of the obligation to pay the Repayment Amount, all payments to the Agent
and each Lender
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under this Agreement and in respect of the Loans shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by the United States or any political subdivision or taxing
authority thereof or therein, or by any taxing authority in any jurisdiction
from or through which the Servicer or the Indenture Trustee, in each case on
behalf of the Trust, effects any payment under this Agreement, excluding, in the
case of any Lender, income taxes and franchise taxes based on the net income of
the Lender or measured by income, gross receipts, assets or capital of the
Lender ("Income Taxes") imposed on such Lender by the taxing authority of any
jurisdiction where (i) such Lender is organized or incorporated, (ii) such
Lender's Lending Office is located, (iii) such Lender's principal office or
headquarters is located or (iv) where such Lender is engaged in business
otherwise than as a result of this Agreement (all such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions and withholdings being
hereinafter called "Taxes"). Notwithstanding the foregoing, Taxes shall not
include taxes or withholdings attributable to amounts withheld under Code
Section 1446. If any Taxes are required to be withheld from any amounts payable
to any Lender hereunder, after submission by such Lender to the Indenture
Trustee, the Owner Trustee, the Trust Depositor and the Servicer (with a copy to
the Agent) of a written request therefor, the amounts so payable to such Lender
shall be increased by the Trust (the amount of such increase to be payable only
to the extent funds are then or thereafter available pursuant to Section
2.02(c), (d) or (e)) to the extent necessary to yield to such Lender (after
payment of all Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Agreement. Whenever any Taxes are
payable by the Trust as promptly as possible thereafter the Servicer shall send
to the Agent a certified copy of an original official receipt received by the
Owner Trustee and the Servicer showing payment thereof. If the Trust (or the
Servicer acting on behalf of the Trust), fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Agent the required
receipts or other required documentary evidence, the Servicer shall request the
Trust in writing to, and the Trust shall pay the Agent or such Lender, as the
case may be, but only to the extent funds are then or thereafter become
available pursuant to Section 2.02(c), (d) or (e), any incremental taxes,
interest or penalties that have or may become payable by the Agent or such
Lender as a result of any such failure. Notwithstanding the foregoing or
anything else contained herein to the contrary, no amounts shall be paid
pursuant to this subsection 2.08(b) to any Lender that is not created or
organized under the laws of the United States, any one of the states thereof or
the District of Columbia for any period with respect to which a Lender fails, or
has failed, to comply with the requirements of subsection 2.08(d).
(c) Any Lender claiming amounts under Section 2.08(b) will furnish to the
Indenture Trustee, the Owner Trustee, the Trust Depositor and the Servicer an
officer's certificate prepared in good faith setting forth in reasonable detail
the basis and amount of each request by such Lender or the Agent, as the case
may be, for such amounts. In calculating amounts payable to a Lender or the
Agent pursuant to the second sentence of Section 2.08(b) arising from the
required withholding from amounts due to such Lender or the Agent hereunder,
such Lender or the Agent, as the case may be, shall take into account the amount
and the timing of its realization of any tax credits available to it with
respect to any such withholding which such Lender reasonably believes are
directly related to this Agreement. Determinations so made by a Lender
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or the Agent, as the case may be, of any Taxes or other amounts referred to
in Section 2.08(b) shall be (i), if such Lender is not the initial Lender, made
without regard to any participations in the Loan sold by such Lender and as if
such Lender held for its own account the amount of the Loan so participated and
(ii) prima facie evidence of any amounts claimed under Section 2.08(b).
(d) Each of the Lenders (including each of the assigned Lenders) that was
not created or organized under the laws of the United States, any one of the
states thereof or the District of Columbia, agrees that, prior to the date on
which the first interest payment hereunder is due thereto, it will deliver to
the Trust Depositor, the Servicer, the Agent and the Indenture Trustee two duly
completed copies of the United States Internal Revenue Service Form 4224 or Form
W-8ECI or, if the Lender is entitled to a complete exemption from withholding
tax pursuant to the applicable tax treaty, Form 1001 or W-8BEN, or in either
case successor applicable or required forms, as the case may be, and such other
forms and information as may be required to confirm the availability of any
applicable exemption from United States federal, state or local withholding
taxes. Each Lender also agrees to deliver to the Trust Depositor, the Servicer,
the Agent and the Indenture Trustee two further copies of the said Form 4224 or
Form W-8ECI, such other applicable forms, or successor applicable forms or other
manner of certification, as the case may be, on or before the date that any such
form expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent form previously delivered by it hereunder and such
extensions or renewals thereof as may reasonably be requested by the Servicer,
unless in any such case an event (including any change in treaty, law or
regulation) as occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender so advises the Servicer. Each such Lender shall
certify (as of the Closing Date in the case of a Lender party hereto on such
date or as of the effective date of its Assignment Agreement in the case of a
Lender which became a Lender hereunder by Assignment) in the case of a Form
4224, Form W-8ECI, Form 1001 or Form W-8BEN, that it is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes. Notwithstanding any provision in this Agreement to
the contrary, the Servicer and Indenture Trustee shall be entitled to withhold
or cause such withholding without the requirement of any "gross-up" payment to
the Lenders pursuant to Section 2.08(b) in the event of a breach of these
certifications, representations and warranties or those set forth in Section
8.09(d) or Section 8.09(f).
(e) Each Lender agrees that it shall use its best efforts to take any
necessary actions, including designating a different Lending Office for the
Loan, that will avoid the need for, or reduce the amount of, any amounts payable
to it for Taxes referred to in Section 2.08(b); provided that no such Lender
shall be obligated to take any actions that would, in the reasonable opinion of
such Lender, be unlawful or otherwise disadvantageous to such Lender or would
result in any unreimbursed cost or expense to such Lender, which cost and
expense would not have been incurred but for such actions. If any amounts
payable to a Lender for Taxes referred to in Section 2.08(b) shall not be
eliminated or reduced by the designation of a different Lending Office or other
actions taken by the affected Lender and payment thereof hereunder shall not be
waived by such Lender within 15 days after the Trust Depositor shall have given
written notice to such Lender and the Agent of its intent to replace such
Lender, the Trust Depositor shall have the
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right to (A) request in writing that the Agent assist the Trust Depositor,
and the Agent hereby agrees upon receipt of such request to assist the Trust
Depositor, to obtain a replacement lender for such Lender that is acceptable to
the Trust Depositor or (B) itself seek to replace the Lender hereunder with a
new lender which is reasonably acceptable to the Agent; provided that (i) such
Lender shall not be replaced hereunder with a new lender until such Lender has
been repaid in full all amounts owed to it pursuant to this Agreement and (ii)
if the Lender to be replaced is the Agent, a replacement Agent shall have been
appointed by the remaining Lenders and the Agent to be replaced shall have been
paid all amounts owing to it as Agent pursuant to this Agreement; provided
further, that the Trust Depositor shall provide the Lender to be replaced with
an officer's certificate stating that such new lender has advised the Trust
Depositor that it is not then subject to, or has agreed not to seek, such
amounts for Taxes. Subject to the provisions of this Section 2.08(e), each
affected Lender hereby agrees to assign all of its rights and obligations to
such replacement Lender pursuant to an Assignment Agreement, subject to payment
in full of such affected Lender's Pro Rata Share of the Loan, together with all
accrued interest, fees and other amounts due to it hereunder (including amounts
due it under this Section 2.08).
(f) Failure on the part of any Lender to demand compensation for any amount
pursuant to Section 2.08(b) with respect to any period shall not constitute a
waiver of such Lender's right to demand compensation with respect to such
period; provided, however, that a Lender shall not be required to be compensated
for any such amount relating to any period ending, and of which such Lender has
had knowledge, more than six months prior to the date that such Lender notifies
the Servicer in writing thereof. Each Lender agrees to use its reasonable
efforts to notify the Servicer upon obtaining actual knowledge of any amounts
described in Section 2.08(b) incurred or to be incurred by such Lender for which
such Lender plans on seeking compensation pursuant to Section 2.08(b); provided,
however, that, subject to the proviso set forth in the preceding sentence,
failure to so notify the Servicer shall not constitute a waiver of such Lender's
right to demand such compensation, or reduce the amount of such compensation
that such Lender may demand.
Section 2.09. Nonrecourse and Recourse Obligations; Waiver of Setoff,
Obligations Absolute.
(a) Notwithstanding any provision in any other Section of this Agreement to
the contrary, but subject to Section 2.09(b) below, the obligation to repay the
Repayment Amount shall be without recourse to the Trust Depositor, TCC, in its
individual capacity and as the Servicer, any Person acting on behalf of either
the Trust Depositor or the Servicer, the Trust, the Owner Trustee, the Indenture
Trustee, any Noteholder, any Equity Certificateholder or any affiliate, officer
or director of any of them, and the obligation to pay the Repayment Amount shall
be limited solely to the application of Investment Earnings, Available Funds,
Cash Collateral Account Surplus, and other amounts payable in respect thereof
required to be distributed to the Lenders, as described in Section 2.02 hereof,
and in the Indenture, and all other amounts on deposit or to be deposited from
time to time in the Cash Collateral Account to the extent that such amounts are
available for distribution to the Lenders.
(b) (i) The representations and warranties of the Trust Depositor and TCC,
in its individual capacity and as Servicer, made herein or in the Pooling
Agreement, the breach of
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which has a material adverse effect on any Lender, (ii) the noncompliance
by the Trust Depositor or TCC, in its individual capacity and as Servicer, with
the terms and provisions of this Agreement, the Pooling Agreement or the
Indenture, which noncompliance has a material adverse effect on any Lender, and
(iii) the amounts of any withdrawals from the Cash Collateral Account, to the
extent such amounts represent amounts which the Trust Depositor or the Servicer
were required to but failed to deposit in the Collection Account in accordance
with the Pooling Agreement or the Indenture, shall be with recourse to TCC, in
its individual capacity and as Servicer or the Trust Depositor, as the case may
be, but not to any successor to such Servicer; provided, however, that the sole
remedy against the Trust Depositor or TCC for a breach of the representations
and warranties in the Schedule of Representations, in the Purchase and Sale
Agreements or in Section 3.09 hereof (to the extent relating to such Schedule of
Representations) shall be limited to the right to have NFUSA purchase the
applicable Contracts pursuant to, and make the deposits to the Collection
Account, if any, required by, Section 7.06 of the Pooling Agreement. Neither the
Trust Depositor nor the Servicer shall be liable for the representations or
warranties made by, or the acts or omissions of, any successor to the Trust
Depositor or a successor Servicer, except as provided herein and except that a
Trust Depositor that is also the Servicer or a successor Servicer may be liable
in its other capacity.
(c) Each Lender agrees that it shall have no right of setoff or banker's
lien against the Trust Depositor, the Servicer, the Indenture Trustee, the Owner
Trustee, the Trust, TCC (in its individual capacity), NFUSA, any Noteholder, any
Equity Certificateholder or any affiliate, officer or director of any of them or
the Cash Collateral Account or any Eligible Investments, in any such case with
respect to the payment of the Repayment Amount or with respect to any amount
owing to any Lender, whether arising hereunder or otherwise, and that any rights
of setoff that such Lender may have shall not affect its obligations hereunder
except as provided in Section 2.06(c) hereof.
(d) Subject to and without limiting the foregoing provisions of this
Section 2.09, the obligations of the Trust, the Indenture Trustee, the Trust
Depositor, the Servicer and the Lenders under this Agreement shall be absolute,
unconditional and irrevocable and shall be performed strictly in accordance with
the terms of this Agreement, irrespective of any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement, any
Purchase and Sale Agreement, the VFC Assignment, the Pooling Agreement, the
Equity Certificate, the Notes, the Indenture or any other Transaction
Documents;
(ii) any amendment to or waiver of, or consent to departure from, this
Agreement, any Purchase and Sale Agreement, the VFC Assignment, the Pooling
Agreement, the Equity Certificate, the Notes, the Indenture or any other
Transaction Documents unless agreed to by the Lenders pursuant to Section
8.01;
(iii) the existence of any claim, setoff, defense or other right which
the Trust Depositor, the Servicer, the Indenture Trustee, the Owner Trustee
or the Trust may have at any time against each other, any beneficiary or
any transferee of the Cash Collateral Account (or any Person for whom the
Trust Depositor, the Servicer, the
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Indenture Trustee, the Owner Trustee, any such beneficiary or any such
transferee may be acting), the Agent or any Lender (except in the case of
the Agent or a Lender, any claim, setoff, defense or other right arising
from the negligence, bad faith or willful misconduct of the Agent or such
Lender), or any other Person, whether in connection with this Agreement,
the Indenture, any Purchase and Sale Agreement, the Pooling Agreement, the
Equity Certificate, the Notes, any other Transaction Documents any Eligible
Investment or any unrelated transactions;
(iv) the bankruptcy, insolvency, receivership or conservatorship of
the Trust Depositor, the Servicer, the Indenture Trustee, the Owner
Trustee, the Trust, TCC, any Originator, any Noteholder, any Equity
Certificateholder, the Agent or any Lender;
(v) any defense based on the failure of the Trust Depositor or the
Trust to receive all or any part of the proceeds of the sale of the Notes
or Equity Certificate; or the nonapplication or misapplication of amounts
at any time on deposit in the Cash Collateral Account (other than, in the
case of a Lender, a nonapplication or misapplication by such Lender);
(vi) any statement or any other document presented in connection with
the Cash Collateral Account proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; provided, that in the case of the Agent or
a Lender, the same shall not have constituted negligence, bad faith or
willful misconduct on the part of the Agent or such Lender.
Section 2.10. Indemnification.
(a) Subject to the provisions of Section 2.09 relating to the non-recourse
nature of the obligation to pay the Repayment Amount, the Trust agrees to
indemnify and hold harmless, to the extent funds are available therefor under
subsections 2.02(c)(vii), 2.02(c)(viii), 2.02(d)(v), 2.02(d)(vi), 2.02(e)(v) and
2.02(e)(vi), the Agent and each Lender and any director, officer, employee, or
agent of such Lender (each such Person being an "Indemnitee") from and against
any and all claims, damages, losses, liabilities, costs or expenses (including
reasonable fees and expenses of counsel) whatsoever (other than claims for
payment of the Repayment Amount and costs, losses or payments covered by Section
2.07 or 2.08) that any Indemnitee may incur (or that may be claimed against any
Indemnitee) by reason of or in connection with (x) the execution and delivery or
assignment of, or payment under, this Agreement or the Loans or (y) the
transactions contemplated hereby (including the withdrawal from and deposit to
the Cash Collateral Account of required amounts), except (i) to the extent that
any such claims, damages, losses, liabilities, costs or expenses shall be caused
by the willful misconduct, bad faith or gross negligence of the Indemnitee or
any related Indemnitee in performing its obligations under this Agreement or the
Loans, (ii) to the extent that any such claims, damages, losses, liabilities,
costs or expenses relate to Income Taxes or Taxes, (iii) to the extent any such
claims, damages, losses,
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liabilities, costs or expenses relate to information provided to an
assignee of a Lender by a Person other than the Trust Depositor, the Servicer,
the Indenture Trustee or the Owner Trustee (unless such information was provided
to such Person in writing by the Trust Depositor, the Servicer, the Indenture
Trustee or the Owner Trustee for, or permitted in writing by such party to be
used for, such purpose), (iv) to the extent such costs or expenses are, in the
good faith judgment of the Indemnitee, ordinary expenses of routine
administration incurred by an Indemnitee hereunder or costs of an Indemnitee in
effecting any Assignment hereof or participation herein, in each case to the
extent such costs, or expenses are not specifically payable by the Trust
Depositor or the Servicer hereunder or (v) as provided in Section 8.04. Promptly
after receipt by the Agent or a Lender of notice of the commencement of any
action, the Agent or such Lender will, if a claim in respect thereof is to be
made against the Trust, under this Section 2.10(a), notify the Trust Depositor,
the Owner Trustee, the Indenture Trustee and the Servicer in writing of the
commencement thereof; but the omission so to notify the Trust Depositor, the
Owner Trustee, the Indenture Trustee and the Servicer will not relieve such
party from any liability which it may have to the Agent or such Lender under
this Section 2.10(a); provided, however, that a Lender shall not be required to
be compensated for any such amount relating to any period ending, and of which
such Lender has had knowledge, more than six months prior to the date that such
Lender notifies the Servicer in writing thereof. Each Lender agrees to use its
reasonable efforts to notify the Servicer upon obtaining actual knowledge of any
amounts described in this Section 2.10(a) incurred or to be incurred by such
Lender for which such Lender plans on seeking compensation pursuant to this
Section 2.10(a); provided, however, that, subject to the proviso set forth in
the preceding sentence, failure to so notify the Servicer shall not constitute a
waiver of such Lender's right to demand such compensation, or reduce the amount
of such compensation that such Lender may demand.
(b) Subject to the provisions of Section 2.09 relating to the non-recourse
nature of the obligation to pay the Repayment Amount, TCC, in its individual
capacity and as Servicer, agrees to indemnify and hold harmless each Indemnitee
from and against any and all claims, damages, losses, liabilities, costs or
expenses (including reasonable fees and expenses of counsel) whatsoever (other
than claims for payment of the Repayment Amount and costs, losses or payments
covered by Section 2.07 or 2.08) that any Indemnitee may incur (or that may be
claimed against any Indemnitee) on the same terms and conditions that TCC has
agreed to indemnify other parties pursuant to Section 11.12 of the Pooling
Agreement.
(c) Each Lender agrees that it shall use its best efforts to take any
necessary actions, including designating a different Lending Office for the
Loan, that will avoid the need for, or reduce the amount of, any indemnity
payments referred to in Section 2.10(a); provided that no such Lender shall be
obligated to take any actions that would, in the reasonable opinion of such
Lender, be unlawful or otherwise disadvantageous to such Lender or would result
in any unreimbursed cost or expense to such Lender, which cost and expense would
not have been incurred but for such actions. If any indemnity amounts payable to
a Lender referred to in Section 2.10(a) shall not be eliminated or reduced by
the designation of a different Lending Office or other actions taken by the
affected Lender and payment thereof hereunder shall not be waived by such Lender
within 15 days after the Trust Depositor shall have given written notice to such
Lender and the Agent of its intent to replace such Lender, the Trust Depositor
shall have the right to (A) request in writing that the Agent assist the Trust
Depositor, and the Agent hereby
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agrees upon receipt of such request to assist the Trust Depositor, to
obtain a replacement lender for such Lender that is acceptable to the Trust
Depositor or (B) itself seek to replace the Lender hereunder with a new lender
which is reasonably acceptable to the Agent; provided that (i) such Lender shall
not be replaced hereunder with a new lender until such Lender has been repaid in
full all amounts owed to it pursuant to this Agreement and (ii) if the Lender to
be replaced is the Agent, a replacement Agent shall have been appointed by the
remaining Lenders and the Agent to be replaced shall have been paid all amounts
owing to it as Agent pursuant to this Agreement; provided further, that the
Trust Depositor shall provide the Lender to be replaced with an officer's
certificate stating that such new lender has advised the Trust Depositor that it
is not then subject to, or has agreed not to seek, such indemnity amounts.
Subject to the provisions of this Section 2.10(c), each affected Lender hereby
agrees to assign all of its rights and obligations to such replacement Lender
pursuant to an Assignment Agreement, subject to payment in full of such affected
Lender's Pro Rata Share of the Loan, together with all accrued interest, fees
and other amounts due to it hereunder (including amounts due it under this
Section 2.10).
(d) Any Lender claiming amounts under Section 2.10(a) will furnish to the
Indenture Trustee, the Owner Trustee, the Trust Depositor and the Servicer an
officer's certificate prepared in good faith setting forth in reasonable detail
the basis and amount of each request by such Lender or the Agent, as the case
may be, for such amounts. Determinations by a Lender, or the Agent, as the case
may be, of any indemnity amounts referred to in Section 2.10(a) shall be (i)
made without regard to any participations in the Loan sold by such Lender and as
if such Lender held for its own account the amount of the Loan so participated
and (ii) prima facie evidence of any amounts claimed under Section 2.10(a).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF DEPOSITOR AND SERVICER
In order to induce the Agent and the Lenders to enter into this Agreement
and to induce the Lenders to make their respective Loans hereunder, each of the
Trust Depositor and the Servicer, and with respect to Sections 3.06, 3.09 and
3.11 and subsection 3.06(b), TCC in its individual capacity, represents and
warrants to the Lenders as follows:
Section 3.01. Corporate Existence. The Trust Depositor is a limited
liability company and the Servicer is a corporation, each of which is validly
existing and in good standing under the laws of the State of Delaware, with full
corporate power and authority under such laws to own its properties and conduct
its business as such properties are presently owned and such business is
presently conducted and to execute, deliver and perform its obligations under
this Agreement, the Pooling Agreement, the Purchase and Sale Agreements, the
Underwriting Agreement, the Indenture and the other Transaction Documents to
which it is a party.
Section 3.02. Corporate Authority. It has the corporate power, authority
and right to make, execute, deliver and perform this Agreement, the Pooling
Agreement, the Purchase and Sale Agreements, the Underwriting Agreement, the
Indenture, the other Transaction Documents to which it is a party and all the
transactions contemplated hereby and thereby and has taken all
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necessary corporate action to authorize the execution, delivery and
performance of this Agreement, the Pooling Agreement, the Purchase and Sale
Agreements, the Underwriting Agreement, the Indenture and the other Transaction
Documents to which it is a party. Each of this Agreement, the Pooling Agreement,
the Purchase and Sale Agreements, the Underwriting Agreement, the Indenture and
the other Transaction Documents to which it is a party constitutes its legal,
valid and binding obligation, enforceable in accordance with its terms, subject
to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent
transfer, receivership, conservatorship and other laws of general applicability
relating to or affecting creditors' rights in general. The enforceability of its
obligations under such agreements is also subject to general principles of
equity, regardless of whether such enforceability is considered in a proceeding
in equity or at law.
Section 3.03. No Consents Required. No consent, license, approval or
authorization of, or registration with, any Governmental Authority is required
to be obtained in connection with its execution, delivery or performance of each
of this Agreement, the Pooling Agreement, the Purchase and Sale Agreements, the
Underwriting Agreement, the Indenture and any other Transaction Documents to
which it is a party that has not been duly obtained and which is not and will
not be in full force and effect on the Closing Date, except such that may be
required by the blue sky laws of any state or consents, licenses, approvals or
authorizations of, or registrations with, any Governmental Authority that,
individually or in the aggregate, would not have a material adverse effect on
the Trust Depositor's or the Servicer's, as applicable, ability to perform its
obligations under, or the validity or enforceability of, this Agreement, the
Pooling Agreement, the Purchase and Sale Agreements, the Underwriting Agreement,
the Indenture or any other Transaction Documents to which it is a party.
Section 3.04. No Violation. The execution, delivery and performance of each
of this Agreement, the Pooling Agreement, the Purchase and Sale Agreements, the
Underwriting Agreement, the Indenture and any other Transaction Documents to
which it is a party do not violate any provision of any existing law or
regulation applicable to it, any order or decree of any court or other judicial
authority to which it is subject, its articles of association or by-laws or any
mortgage, indenture, contract or other to which it is a party or by which it or
any significant portion of its properties is bound (other than violations of
such laws, regulations, orders, decrees, mortgages, indentures, contracts and
other agreements that, individually or in the aggregate, would not have a
material adverse effect on the Trust Depositor's or the Servicer's, as
applicable, ability to perform its obligations under, or the validity or
enforceability of, this Agreement, the Pooling Agreement, the Purchase and Sale
Agreements, the Underwriting Agreement, the Indenture or any other Transaction
Documents to which it is a party).
Section 3.05. No Proceeding. There is no litigation or administrative
proceeding before any court, tribunal or governmental body presently pending or,
to the knowledge of the Trust Depositor or the Servicer, threatened against the
Trust Depositor or the Servicer, as the case may be, with respect to this
Agreement, the Pooling Agreement, the Purchase and Sale Agreements, the
Underwriting Agreement, the Indenture, any other Transaction Documents to which
it is a party, the transactions contemplated hereby or thereby or the issuance
of the Notes or Equity Certificate that would have a material adverse effect on
the transactions contemplated by, or its ability to perform its obligations
under, this Agreement, the Pooling Agreement, the
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Purchase and Sale Agreements, the Underwriting Agreement, the Indenture or
any the other Transaction Documents to which it is a party.
Section 3.06. Registration and Prospectus; Other Information. (a) Neither
the Registration Statement at the time it was declared effective, the Prospectus
as of its date, nor any post-effective amendment or supplement to the
Registration Statement or the Prospectus at the time it is filed with the
Commission and at the Closing Date: (i) contained or will contain any untrue
statement of a material fact or omitted or will omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, it being understood that the
Registration Statement and Prospectus were prepared only in connection with the
offering of the Notes; or (ii) disclosed or will disclose the identity of the
Agent or any Lender except at the request of any regulatory body, or by the
order of any court or administrative agency.
(b) (i) All financial and other written information provided by or on
behalf of TCC is true and correct, as of their respective dates, in all material
respects when read in conjunction with the Prospectus; and (ii) all financial
and other written information provided by or on behalf of TCC to the initial
Lender for use in connection with such Lender's syndication of the Loans, is
true and correct in all material respects. For purposes of this Agreement,
"written information" will include information provided electronically on a
computer disk, via electronic mail, or by any similar means.
Section 3.07. Trust Indenture Act; Investment Company Act. The Pooling
Agreement is not required to be qualified under the Trust Indenture Act of 1939
(as amended), the Trust is not required to be registered under the Investment
Company Act of 1940 (as amended) and the Indenture has been properly qualified
under the Trust Indenture Act of 1939, as amended.
Section 3.08. No Event of Default or Servicer Termination Event. No Event
of Default with respect to the Notes or Servicer Termination Event has occurred
and is continuing, and no event, act or omission has occurred and is continuing
which, with the lapse of time, the giving of notice, or both, would constitute
such a Event of Default or Servicer Termination Event.
Section 3.09. Representations and Warranties in Transaction Documents and
Regarding Repurchase Event. Its representations and warranties (i) in Section
3.01 of the Pooling Agreement and Section 2 of the Underwriting Agreement, (in
the case of the Trust Depositor), or (ii) in Section 3.02 of the Pooling
Agreement and Section 2 of the Underwriting Agreement, (in the case of TCC, in
its individual capacity or as Servicer, as the case may be) are true and correct
in all material respects as of the dates they were made (unless they
specifically refer to an earlier date in which case such representations and
warranties were true and correct in all material respects as of such earlier
date); and as of the date hereof and as of the Closing Date, no event exists
with respect to Contracts which obligated NFUSA to repurchase such Contracts
pursuant to Section 7.06 of the Pooling Agreement; provided, however, that the
sole remedy for a breach of the representations and warranties made in this
Section 3.09 shall be limited to the
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right to have NFUSA purchase the applicable Contracts and make the deposits
to the Collection Account to the extent required in the Pooling Agreement.
Section 3.10. Withdrawal From the Cash Collateral Account. The only events
which may give rise to a withdrawal from the Cash Collateral Account are the
circumstances described in the Pooling Agreement and in this Agreement.
Section 3.11. Adverse Selection. No selection procedures adverse to the
Noteholders have been or will be used in selecting the Contracts from among the
lease and loan contracts owned and available for transfer by (i) NFUSA, at the
time of sale to the Trust Depositor to the Trust, or (ii) the Trust Depositor on
April 1, 2000 and on the Closing Date.
ARTICLE IV
CONDITIONS PRECEDENT
Sections 4.01 through 4.09 constitute conditions precedent to the
obligation of the Lenders to make their respective Loans on the Closing Date,
and Section 4.10 constitutes a condition precedent to the obligation of the
Trust Depositor, the Servicer, the Trust and the Indenture Trustee to enter into
this Agreement on the Closing Date.
Section 4.01. Representations and Warranties. On the Closing Date and after
giving effect to the making of the Loans and the issuance of the Notes and the
Equity Certificate, all representations and warranties of the Trust Depositor
and TCC, in its individual capacity and as Servicer, contained herein or in the
Pooling Agreement, the Indenture, the Purchase and Sale Agreements, the
Underwriting Agreement, any other Transaction Documents or otherwise made in
writing pursuant to any of the provisions hereof or thereof shall be true and
correct in all material respects with the same force and effect as though such
representations and warranties had been made on and as of such date (unless such
representations and warranties specifically relate to an earlier date in which
case such representations and warranties shall have been true and correct in all
material respects on such earlier date); provided, however, that the sole remedy
for a breach of all such representations and warranties shall be limited to the
right to have NFUSA purchase the applicable Contracts and make the deposits to
the Collection Account to the extent required in the Pooling Agreement.
Section 4.02. Transaction Agreements. The Agent shall have received copies
of each of the Pooling Agreement, the Indenture, the Underwriting Agreement and
any other Transaction Documents, duty executed by the parties thereto.
Section 4.03. Additional Documents. The Trust Depositor and the Servicer,
as the case may be, shall have furnished or caused to be furnished to the Agent,
on the Closing Date, executed copies of the opinions required by Section 6 of
the Underwriting Agreement and such additional opinions as may have been
required by any Rating Agency (in each case, addressed to the Agent on behalf of
the Lenders or accompanied by a letter providing that the Agent on behalf of the
Lenders may rely on such opinion as if it were directed to the Lenders,
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and in form and substance satisfactory to the Agent and its counsel) and
such additional documents, instruments, certificates or letters as the Agent may
reasonably request.
Section 4.04. Accountant's Letter. The Agent shall have received copies of
the executed letters of KPMG LLP delivered pursuant to Section 6 of the
Underwriting Agreement.
Section 4.05. Note Issuance and Holdback Amount. Simultaneously with the
deposit of the proceeds of the Loans into the Cash Collateral Account (x) the
Notes shall have been duly executed and authenticated and delivered in
accordance with Section 2.02 of the Indenture and purchased by the underwriters
pursuant to the Underwriting Agreement, and (y) the Holdback Amount shall be
deposited into the Cash Collateral Account pursuant to the Underwriting
Agreement.
Section 4.06. Secretary's Certificate. On the Closing Date, the Agent shall
have received from the Trust Depositor, the Servicer and each Originator a
certificate of the Secretary or an Assistant Secretary of the Trust Depositor
and the Servicer attaching copies of the articles of incorporation or
association, as applicable, and by-laws of the Trust Depositor and the Servicer
(as in effect on the Closing Date) and the resolutions of the Board of Directors
or the Executive Committee of the Board of Directors of the Trust Depositor and
the Servicer, certified as of the Closing Date, authorizing the execution,
delivery and performance of the Pooling Agreement, the Indenture and this
Agreement and as to the incumbency of certain officers of the Trust Depositor
and the Servicer authorized to execute this Agreement and the documents required
hereby.
Section 4.07. Cash Collateral Account. On the Closing Date, the Agent and
the Owner Trustee shall have received satisfactory evidence of the establishment
of the Cash Collateral Account.
Section 4.08. Ratings. On the Closing Date, the Agent shall have received
evidence reasonably satisfactory to the Agent that (i) the Class A Notes have
been rated in the highest rating category by S&P and Moody's, (ii) the Class B
Notes have been rated no lower than " AA" by S&P and "Aa3" by Moody's, (iii) the
Class C Notes have been rated no lower than " A" by S&P and "A2" by Moody's,
(iv) the Class D Notes have been rated no lower than " BBB" by S&P and "Baa3" by
Moody's, and (v) the Loans have been rated no lower than "BB" by S&P.
Section 4.09. Agent Fees. On or prior to the Closing Date, the Trust
Depositor shall have paid the Agent the upfront fees separately agreed to by
them.
Section 4.10. Legal Opinions. On the Closing Date, the Trust Depositor, the
Servicer, the Trust and the Indenture Trustee shall have received (with copies
to S&P) favorable written opinions of New York and foreign counsel, as
applicable, to each Lender, in each case in form and substance reasonably
satisfactory to the Trust Depositor, the Indenture Trustee, the Trust and the
Servicer to the effect that this Agreement constitutes the valid and binding
obligation of each Lender, enforceable in accordance with its terms (subject to
applicable bankruptcy, reorganization, insolvency and similar laws, and to
moratorium laws and other laws
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affecting creditors' rights generally from time to time in effect and to
general principles of equity).
ARTICLE V
COVENANTS
Each of the Trust Depositor and the Servicer (and, in the case of Sections
5.01, 5.02 and 5.07, each of the Trust Depositor, the Servicer, and the
Indenture Trustee) covenants and agrees that, so long as any amount of the Loans
shall be outstanding or any monetary obligation arising hereunder is owing and
shall remain unpaid, unless the Required Lenders shall otherwise consent in
writing, the Trust Depositor or the Servicer (or, in the case of Sections 5.01,
5.02 and 5.07, the Indenture Trustee), as applicable, will:
Section 5.01. Performance of Agreements. For the benefit of the Lenders,
perform on a timely basis each of their respective agreements, warranties and
indemnities under, and comply in all material respects with each of the
respective terms and provisions applicable to it in, the Pooling Agreement, the
Purchase and Sale Agreements, the Underwriting Agreements, the Indenture and the
other Transaction Documents.
Section 5.02. Amendments to the Pooling Agreement, Purchase and Sale
Agreements and the Indenture. Not terminate (except in accordance with the terms
thereof or otherwise only if at the time of such termination, no Repayment
Amount or other amount payable to the Agent or the Lenders hereunder or under
the Indenture is unpaid), amend, waive or otherwise modify the Pooling
Agreement, the Purchase and Sale Agreements, the Indenture and the other
Transaction Documents without the prior written consent of the Required Lenders
unless (a) such amendment, waiver or modification shall not, as evidenced by an
Officer Certificate delivered to the Agent, adversely affect in any material
respect the interests of the Lenders under this Agreement and (b) prior to the
effectiveness of any such amendment, waiver or modification (x) the Rating
Agencies shall confirm in writing that the rating of the Notes will not be
lowered or withdrawn as a result of such amendment, waiver or modification and
(y) S&P shall confirm in writing that the rating of the Loans will not be
lowered or withdrawn as a result of such amendment, waiver or modification.
Section 5.03. Certificates. Furnish to the Agent a copy of each
certificate, report, statement, notice or other communication (in addition to
those referred to in Section 5.09) furnished by or on behalf of the Trust
Depositor or the Servicer to the Noteholders, the Owner Trustee, the Indenture
Trustee or any Rating Agency concurrently therewith and furnish to the Agent
promptly after receipt thereof a copy of each notice, demand or other
communication received by or on behalf of the Trust Depositor or the Servicer
with respect to the Notes, this Agreement, the Pooling Agreement, the Purchase
and Sale Agreements, the Indenture and the other Transaction Documents.
Section 5.04. Monthly Status Reports. Furnish to the Agent, on a monthly
basis on each Payment Date, a monthly report in the form of Exhibit B hereto
(which report shall have attached thereto a copy of the Servicer's Certificate
delivered pursuant to the Pooling Agreement
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for the related Collection Period) and such other information with respect
to the Trust's property as the Agent may reasonably request (including a copy of
the monthly statements with respect to the Cash Collateral Account furnished by
the holder thereof (if other than the Trust Depositor, the Servicer or an
Affiliate thereof) and information relating to the source and amount of any
prepayment of the Loans pursuant to Section 2.02(c) or (d)).
Section 5.05. Default. Furnish to the Agent, promptly after the occurrence
of any Servicer Termination Event or Event of Default, a certificate of an
appropriate officer of the Servicer setting forth the circumstances of such
Servicer Termination Event or Event of Default, and any action taken or proposed
to be taken with respect thereto.
Section 5.06. Timely Payments. Timely make all payments, deposits or
transfers, and give all instructions to transfer, required to be made by it
under the Indenture and the Pooling Agreement.
Section 5.07. Successor Indenture Trustee. Not appoint (or cause to be
appointed) a successor Indenture Trustee without the prior written consent of
the Agent (which consent shall not be unreasonably withheld) except as permitted
hereunder and by the Indenture.
Section 5.08. Inspection. Afford the Agent and each Lender reasonable
access once in any twelve-month period upon 10 days' notice, during normal
business hours and at the expense of the Agent or such Lender, as the case may
be, to all records maintained by the Trust Depositor or the Servicer relating to
the Contracts (other than names of obligors, and strategic plans for the Trust
Depositor's and Servicer's business) for purposes of inspection, to which
inspection the Trust Depositor and Servicer by their execution of this Agreement
hereby consent; provided that if a Event of Default has occurred and is
continuing, the Trust Depositor or the Servicer, as applicable, shall provide,
upon five days' notice, the Agent and each Lender reasonable access to such
records during normal business hours as the Agent shall specify in writing to
the Trust Depositor or the Servicer, as applicable.
Section 5.09. Periodic Reports of the Accountants. Furnish to the Agent,
upon request, (a) a copy of each annual servicing report of independent public
accountants received by the Indenture Trustee from the Servicer pursuant to
Section 9.04 of the Pooling Agreement, (b) a copy of any other data furnished to
the Indenture Trustee pursuant to Section 9.03 of the Pooling Agreement.
Section 5.10. Other Actions. Execute and deliver to the Agent all such
documents and instruments and do all such other acts and things as may be
necessary or reasonably required by the Agent, the Lenders, the Trust or the
Indenture Trustee to enable the Indenture Trustee, the Trust, the Agent or the
Lenders to exercise and enforce their respective rights under this Agreement,
the Pooling Agreement, the Purchase and Sale Agreements, the Indenture, and
other Transaction Documents and to realize thereon, and the Trust Depositor at
the expense of the Agent shall record and file and re-record and refile all such
documents and instruments, at such time or times, in such manner and at such
place or places, as may be necessary or reasonably required by the Indenture
Trustee, the Trust or the Agent to validate, preserve, perfect and protect the
position of the Indenture Trustee, the Trust or the Lenders under
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this Agreement, the Pooling Agreements, the Purchase and Sale Agreements,
the Indenture, and other Transaction Documents and the Trust Depositor and the
Servicer shall maintain each of such agreements as part of its official records.
Section 5.11. Trust Depositor Financial Information; Other Information.
Furnish to the Lenders (a) promptly when publicly available, such publicly
available financial information as to the Trust Depositor and the Servicer as
such Lenders may reasonably request and (b) such information with respect to the
Contracts as such Lenders may reasonably request (other than names of obligors
and strategic plans for the Trust Depositor's lending business or other such
confidential information).
Section 5.12. Lenders' Identities. Maintain as confidential and not
disclose to any Person (other than any officer, employee or representative of a
party hereto, any underwriter under the Underwriting Agreement or a Rating
Agency, or in connection with any filing under the applicable UCC which lists
the Agent or any Lender (or the Owner Trustee or the Indenture Trustee on their
behalf) as secured parties) the identity of the Agent or any Lender as
enhancement provider under this Agreement, except as the Agent or such Lender
may have consented to in writing prior to any proposed disclosure or except as
the Trust Depositor and/or the Servicer may have been advised by counsel is (i)
required by law or (ii) reasonably necessary or desirable in connection with any
lawsuit or governmental investigation or proceeding.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
AND AGREEMENTS OF THE LENDERS
Section 6.01. Representations and Warranties of the Lenders. Each Lender
represents and warrants to the Indenture Trustee, the Owner Trustee, the Trust
Depositor and the Servicer, that:
(a) such Lender is duly authorized to enter into and perform this Agreement
and has duly executed and delivered this Agreement;
(b) this Agreement constitutes the legal, valid and binding obligation of
such Lender, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, conservatorship, receivership and other
laws now or hereafter in effect relating to, or affecting generally, the
enforcement of creditors' rights and remedies as the same may be applied in the
event of the bankruptcy, insolvency, reorganization, conservatorship,
receivership or liquidation or a similar event of such Lender or a moratorium
applicable to the Lender and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in equity);
(c) no consent or approval of or other action by any Governmental Authority
having jurisdiction over the Lender is required in connection with the
execution, delivery or performance by such Lender of this Agreement;
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(d) either (i) it is properly classified as, and will remain classified as,
a "corporation" as described in Code Section 7701(a)(3) and is not, and will not
become, an "S corporation" under Code Section 1361, or (ii) neither (x)
substantially all of the value of any beneficial owner's interest in the Lender
is attributable to the Lender's Loan nor (y) its acquisition of the Loan is for
the purpose of permitting the Trust to avoid the 100-partner limitation of
Treasury Regulation Section 1.7704-1(h)(3)(ii) in the event the Trust is
characterized as a partnership for federal income tax purposes; and
(e) the execution, delivery and performance of each of this Agreement and
any other Transaction Documents to which it is a party do not violate any
provision of any existing law or regulation applicable to it, any order or
decree of any court or other judicial authority to which it is subject, its
articles of association or by-laws or any mortgage, indenture, contract or other
to which it is a party or by which it or any significant portion of its
properties is bound (other than violations of such laws, regulations, orders,
decrees, mortgages, indentures, contracts and other agreements that,
individually or in the aggregate, would not have a material adverse effect on
such Lender, ability to perform its obligations under, or the validity or
enforceability of, this Agreement or any other Transaction Documents to which it
is a party).
ARTICLE VII
[RESERVED]
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Amendments and Waivers. This Agreement shall not be amended,
waived or modified without the written consent of the Trust Depositor, the
Servicer, the Trust, the Indenture Trustee and the Required Lenders. The
Servicer shall provide to each of the Rating Agencies a copy of any amendment
prior to the effectiveness thereof.
Section 8.02. Cash Collateral Account Withdrawal Statement. If the
Termination Date shall have occurred and the Lenders have not been repaid in
full, the Trust Depositor or the Servicer shall provide the Agent with a
description of the events giving rise to each withdrawal from the Cash
Collateral Account (in the case of the Servicer, only while acting in such
capacity) in such detail as the Agent may reasonably request and with such
additional background information and data with respect thereto as the Agent may
reasonably request and the Trust Depositor or the Servicer can reasonably
supply.
Section 8.03. Servicing Transfer.
(a) If a Servicing Transfer occurs under the Pooling Agreement, from and
after the effective date of such Servicing Transfer, the successor Servicer
appointed pursuant to the Pooling Agreement, and not the replaced Servicer,
shall be responsible for the performance of all servicing functions to be
performed from and after such date. Such Servicing Transfer shall not affect any
rights or obligations of the replaced Servicer under this Agreement that arose
prior to the effective date of the Servicing Transfer or the rights or
obligations of the replaced Servicer
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under this Agreement, including under Sections 2.02(c), (d) and (e),
Section 2.06, Section 2.09 and Article V (in the case of Sections 5.03, 5.04 or
5.09 under Article V, excluding any documents received by any successor Servicer
other than the Trust Depositor and also excluding any documents received by the
Trust Depositor from the successor Servicer), this Section 8.03 or Section 8.04
whether arising before or after such date, except to the extent that an
obligation to indemnify the Agent or the Lenders under Section 2.10(c) arises as
a result of any act or failure to act of any successor Servicer in the
performance of the servicing functions. At the time of any transfer of the
servicing functions to a successor Servicer, such successor Servicer shall
furnish to the Agent copies of its annual financial statements (which financial
statements shall be audited, if available) or, if such successor Servicer is a
national banking association, copies of its call reports for each of the last
three fiscal years.
(b) Subject to Sections 2.09 and 8.03(a), any successor Servicer, by
accepting its appointment pursuant to the Pooling Agreement, (i) shall agree to
be bound by the terms, covenants and conditions contained herein applicable to
the Servicer and to be subject to the duties and obligations of the Servicer
hereunder, (ii) as of the date of its acceptance, shall be deemed to have made
with respect to itself the representations and warranties made by the Servicer
in Sections 3.01 through 3.05 hereof (in the case of Section 3.01 with
appropriate factual changes) and (iii) shall agree on a recourse basis to
indemnify and hold harmless any Indemnitee from and against any and all claims,
damages, losses, liabilities, costs or expenses (including the fees and expenses
of counsel) whatsoever that such Indemnitee may incur (or which may be claimed
against such Indemnitee) by reason of the negligence or willful misconduct of
such successor Servicer in exercising its powers and carrying out its
obligations under the Pooling Agreement, the Indenture or this Agreement.
Section 8.04. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CONFLICT OF LAW PROVISIONS.
Section 8.05. No Waiver. Except as specifically provided herein, neither
any failure nor any delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise or the
exercise of any other right, power or privilege.
Section 8.06. Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
Section 8.07. Termination. This Agreement shall remain in full force and
effect until the later of (a) the payment of the Repayment Amount and (b) the
Termination Date. The provisions of Sections 2.02(f), 2.07, 2.08, 2.09, 2.10,
8.04, 8.10, 8.17 and 8.19 shall survive the termination of this Agreement.
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<PAGE>
Section 8.08. Successors and Assigns; Assignments.
(a) This Agreement shall be binding upon, and inure to the benefit of, the
Lenders, the Trust, the Indenture Trustee, the Trust Depositor, the Servicer and
their respective successors and permitted assigns (other than Participants);
provided that neither the Servicer nor the Trust Depositor may assign any of its
rights or obligations hereunder (by operation of law or otherwise) without the
prior written consent of the Lenders except as otherwise provided herein or in
the Pooling Agreement and upon confirmation by S&P that such assignment will not
result in a withdrawal or reduction of the rating of the Loan; and provided
further, that no assignment permitted hereunder shall relieve the Trust
Depositor or the Servicer, as applicable, from any of their respective
obligations arising hereunder prior to such assignment (including obligations
with respect to breaches of representations and warranties made herein).
(b) Subject to the other provisions of this Agreement, each Lender may at
any time sell, assign or otherwise transfer (each, an "Assignment") to any
assignee (upon such assignment, a "Lender") all or part of the obligations due
to it in respect of its Loan and its rights and obligations under this
Agreement; provided that (i) if a partial assignment of the assignor Lender's
interest in the Loan, the minimum amount of such assignment of the Loan shall be
$1,000,000, (ii) such assignee Lender shall have entered into an Assignment
Agreement in the form of Exhibit A, pursuant to which such assignee Lender has
agreed in writing to assume the rights and obligations of the assignor Lender
(to the extent of such Assignment), (iii) such assignee Lender shall, upon the
request of the Trust Depositor, provide the Indenture Trustee, the Servicer and
the Trust Depositor (prior to the effective date of its Assignment Agreement)
with an opinion of counsel reasonably satisfactory to the Indenture Trustee and
the Trust Depositor, as to the enforceability of this Agreement and the
Assignment Agreement with respect to such assignee Lender, (iv) such assignee
Lender shall comply with Section 8.08(d) and shall have delivered to the
Indenture Trustee, prior to the effectiveness of such Assignment, an executed
copy of an agreement under which such assignee Lender has made the
representations, warranties and covenants required to be made pursuant to such
Section and Section 2.08(d), (v) such assignee Lender shall have entered into a
Confidentiality Agreement substantially in the form of Exhibit C, and (vi) if
Section 2.08(d) applies to such assignee Lender, such assignee Lender and the
Agent shall provide the forms described in Section 2.08(d) in the manner
described therein. The Servicer shall notify each Rating Agency of each
Assignment of which it has received notice.
(c) Each assignee Lender shall comply with the applicable provisions of
Section 2.08(d).
(d) Each Lender agrees with the Trust Depositor that: (a) such Lender will
deliver to the Trust Depositor on or before the effective date of any
participation or Assignment a letter in the form attached hereto as Exhibit A,
executed by such Lender, in the case of an Assignment, or by the Participant, in
the case of a participation, with respect to the purchase by such Lender or
Participant of a portion of the Pro Rata Share and (b) all of the statements
made by such Lender in such letter shall be true and correct as of the date
made.
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<PAGE>
(e) Each Lender may assign and pledge all or a portion of its rights
hereunder (including any rights to repayment of its Pro Rata Share of the Loans
and any interest thereon) to any Federal Reserve Bank as collateral to secure
any obligation of such Lender to such Federal Reserve Bank. In the event of an
assignment or pledge in accordance with the foregoing, such Lender shall not
have assigned, and the Federal Reserve Bank shall not be liable for, any
obligations of such Lender under this Agreement. Such assignment may be made at
any time without notice or other obligation with respect to the assignment.
(f) Any Lender may at any time grant to any person a participation in all
or part (but not less than $1,000,000) of its Commitment and its Pro Rata Share,
and its rights under this Agreement (each such Person, a "Participant");
provided, however, that such participation shall be void, unless such
Participant shall comply with the applicable provisions of Section 8.09(d) and
such Lender shall have delivered to the Indenture Trustee, the Servicer and the
Trust Depositor prior to the effectiveness of its participation, a copy of an
agreement under which such Participant has made the representations, warranties
and covenants required to be made pursuant to such Section substantially in the
form attached hereto as Exhibit A. Each Lender hereby acknowledges and agrees
that any such disposition will not alter or affect in any way whatsoever such
Lender's direct obligations hereunder and that neither the Indenture Trustee,
the Owner Trustee, the Trust Depositor, the Servicer nor the Agent shall have
any obligation to, have any communication or relationship whatsoever with, or
liability whatsoever to, any Participant of such Lender in connection with this
Agreement; provided, however, the Trust shall be obligated to reimburse such
Participant for all amounts under Section 2.07, 2.08 and 2.10 as if such
Participant were a Lender hereunder, but with respect to Participations made by
Lenders other than the initial Lender, only in an amount not in excess of the
amounts that would have been owing thereunder to each such other Lender that
shall have granted such participation had such participation not been granted.
Each Lender shall promptly notify the Agent (which shall promptly notify the
Trust Depositor) in writing of the identity and interest of each Participant
upon any such disposition. In granting any participation, the Lender certifies,
represents and warrants that (i) such Participant is entitled to (x) receive
payments with respect to its participation without deduction or withholding of
any United States federal income taxes and (y) an exemption from United States
backup withholding tax, (ii) if Section 2.08(d) applies to such Participant, as
if it were a Lender, prior to the date on which the first interest payment is
due to the Participant, such Lender will receive and provide to the Agent, and
the Agent will provide to the Servicer and Indenture Trustee, the forms
described in Section 2.08(d) as though the Participant were a Lender, (iii) such
Participant shall have entered into a Confidentiality Agreement substantially in
the form of Exhibit C, and (iv) such Lender and Agent similarly will provide
subsequent forms as described in Section 2.08(d) with respect to such
Participant as though it were a Lender.
(g) Any Lender shall have the option to change the office of such Lender at
which its Commitment or Pro Rata Share of the Loan is maintained, provided that
such Lender shall have prior to such change in office complied with the
provisions of Section 2.08(d) as such provisions relate to withholding taxes and
provided further, that such Lender shall not be entitled to any amounts
otherwise payable under Section 2.07 or 2.08 resulting solely from such change
in office unless such change in office was mandated by applicable law or by such
Lender's compliance with the provisions of Section 2.07(c) or 2.08(e).
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Section 8.09. Notices.
(a) All notices and other communications provided for hereunder shall be in
writing and, if to the Trust Depositor, the Servicer, the Owner Trustee, or the
Indenture Trustee either mailed or delivered to it, or sent by facsimile
transmission, addressed to it or sent as set forth in the Pooling Agreement or
the Indenture, or if to the Agent, mailed or delivered to it, or sent by
facsimile transmission, to it at 650 CIT Drive, Livingston, New Jersey 07039,
Attention: General Counsel (with a copy to the attention of the Treasurer),
(telecopy no. (973) 740-5000), or, if to any other party, as such party may
direct in a written notice to the other parties. All such notices and other
communications shall be effective if personally delivered, upon delivery to the
aforesaid address, if mailed, five days after the date of mailing, addressed as
aforesaid or, if sent by facsimile transmission, when sent (receipt confirmed).
Any party hereto may change the address to which notices to it are to be sent by
notice given to the other parties hereto.
(b) Written notice of payments to the Agent under this Agreement shall be
given to the Agent by facsimile transmission stating that a transfer of
immediately available funds has been made to the Agent, identifying the
particular Loan, the amount paid and stating the Federal wire transfer
confirmation number of such wire transfer. Unless otherwise directed by the
Agent, all payments to the Agent shall be made to it directly in federal funds
as follows:
<TABLE>
<S> <C>
Pay To: AT&T Capital Corporation
Account:
---------------
Account No.:
------------
Chase Manhattan Bank
Routing:
----------------
</TABLE>
Section 8.10. Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement.
Section 8.11. Exclusive Benefit. The rights and remedies of the Agent and
the Lenders specified herein are for the sole and exclusive benefit, use and
protection of the Agent and the Lenders, and the Agent and the Lenders are
entitled, but shall have no duty or obligation to the Trust Depositor, the
Servicer, the Owner Trustee, the Indenture Trustee, any Noteholder or Equity
Certificateholder or otherwise, (a) to exercise or to refrain from exercising
any right or remedy reserved to the Agent and the Lenders hereunder or (b) to
cause the Indenture Trustee or any other party to exercise or to refrain from
exercising any right or remedy available to it.
Section 8.12. Limitation of Remedies. Subject to the Lenders' right to
partial prepayment pursuant to Section 2.02(c) and (d), the Lenders shall not
have the right to cause the Loan or any portion thereof to become due and
payable prior to the Termination Date.
Section 8.13. Counterparts. This Agreement may be executed in any number of
copies, and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original instrument.
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<PAGE>
Section 8.14. Previous Agreements. Any previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement.
Section 8.15. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT. Each party hereto (a) certifies that no
representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce the foregoing waiver and (b) acknowledges that it and the other
parties hereto have been induced to enter into this Agreement by, among other
things, the mutual waivers and certifications in this Section 8.16.
Section 8.16. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
Section 8.17. Jurisdiction, Consent to Service of Process. To the fullest
extent permitted by applicable law, each of the Trust Depositor, the Servicer,
the Lenders, the Trust and the Indenture Trustee (a) hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment and (b) agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that a party may otherwise
have to bring any action or proceeding relating to this Agreement against any
other party or its respective properties in the court of any jurisdiction.
Section 8.18. Bankruptcy. To the extent that the Indenture Trustee, the
Servicer or the Trust Depositor makes a payment to the Agent or the Lenders or
the Agent or the Lenders receive any payment or proceeds with respect to the
Repayment Amount or any other amount payable in connection with this Agreement,
which payment or proceeds or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, receiver or any other party under any bankruptcy law, state or
federal law, common law or equitable cause, then, to the extent such payment or
proceeds are set aside, the Repayment Amount or any other amount payable in
connection with this Agreement or part or parts thereof intended to be satisfied
shall be revived and continue in full force and effect, as if such payment or
proceeds had not been received by the Agent or the Lenders.
Section 8.19. Nonpetition Agreements; Rights in Trust Property.
(a) Notwithstanding any prior termination of this Agreement neither the
Agent nor any Lender shall acquiesce, petition or otherwise invoke or cause the
Trust or the Trust Depositor to invoke the process of any Governmental Authority
for the purpose of commencing or sustaining a case against the Trust or the
Trust Depositor under any federal or state
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<PAGE>
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Trust or the Trust Depositor or any substantial part of their respective
property or ordering the winding up or liquidation of the affairs of the Trust
or the Trust Depositor. Agent and Lenders acknowledge that the Trust Depositor
and the Trust are each legal entities separate from any other entity and that
the Noteholders have relied on such separateness, and the Agent and Lenders
agree, which agreement shall be enforceable by the Noteholders at law or through
an action for specific performance, not to seek or support the substantive
consolidation of the Trust Depositor or the Trust with any other entity as long
as the Notes remain outstanding.
(b) Notwithstanding anything contained in this Agreement to the contrary,
the Lenders and the Agent agree that regardless of any termination of this
Agreement or other provision of this Agreement, neither the Agent nor the
Lenders shall have any rights in or to the amounts on deposit in the Cash
Collateral Account or any other Trust Assets or the Trust Estate except as
expressly provided in the Indenture.
Section 8.20. Agent.
(a) Each Lender hereby irrevocably appoints and authorizes the Agent to act
as its agent hereunder with such powers as are specifically delegated to the
Agent by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. The Agent (which term as used in this Section and
in Section 8.20(d) and the first sentence of Section 8.20(e) shall include
reference to its affiliates and its own and its affiliates' officers, directors,
employees and agents): (i) shall have no duties or responsibilities except those
expressly set forth in this Agreement, and shall not by reason of this Agreement
be a trustee for any Lender; (ii) shall not be responsible to any Lender for any
recitals, statements, representations or warranties contained in this Agreement,
or in any certificate or other document referred to or provided for in, or
received by any of them under, this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
the Pooling Agreement, the Purchase and Sale Agreements, the Indenture or any
other Transaction Documents or any other document referred to or provided for
herein or therein or for any failure by the Trust Depositor, the Servicer, the
Owner Trustee, the Indenture Trustee or any other Person to perform any of its
obligations hereunder or thereunder; (iii) shall not be required to initiate or
conduct any litigation or collection proceedings hereunder or under the Pooling
Agreement, the Purchase and Sale Agreements, the Indenture or any other
Transaction Documents; and (iv) shall not be responsible for any action taken or
omitted to be taken by it hereunder or under any other document or instrument
referred to or provided for herein or therein or in connection herewith or
therewith, except for its own gross negligence or willful misconduct.
(b) The Agent shall be entitled to rely upon any certification, notice or
other communication (including any thereof by telephone, telecopy, telex,
telegram or cable) reasonably believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person or Persons, and
upon advice and statements of legal counsel, independent accountants and other
experts selected by the Agent. As to any matters not expressly provided for by
this Agreement, the Agent shall in all cases be fully protected in acting,
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<PAGE>
or in refraining from acting, hereunder or under the Pooling Agreement, the
Indenture or any other Transaction Documents in accordance with instructions of
the Required Lenders, and such instructions of the Required Lenders and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders.
(c) The Agent, if it is a Lender hereunder, shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it were
not acting as the Agent, and in such event the term "Lender" or "Lenders" or
"Lenders" or "Required Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity.
(d) The Lenders agree to indemnify the Agent (to the extent not reimbursed
under Section 2.10 or 8.04, but without limiting the obligations of the Trust
Depositor or the Servicer or the Trust under said Section 2.10 or 8.04) ratably
in accordance with each Lender's Pro Rata Share, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Agent in any way relating to or arising
out of this Agreement or any other documents contemplated by or referred to
herein or therein or the transactions contemplated hereby (excluding normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or of any such
other documents; provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified.
(e) Each Lender agrees that it has, independently and without reliance on
the Agent or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own credit analysis of and the decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement or the Pooling
Agreement, the Indenture or any other Transaction Documents. The Agent shall not
be required to keep itself informed as to the performance or observance by the
Trust Depositor, the Servicer, the Owner Trustee or the Indenture Trustee of
this Agreement or the Pooling Agreement, the Indenture or any other Transaction
Documents.
(f) Except for actions expressly required of the Agent hereunder, the Agent
shall in all cases be fully justified in failing or refusing to act hereunder or
under the Pooling Agreement, the Indenture or any other Transaction Documents
unless it shall receive further assurances to its satisfaction from the Lenders
of their indemnification obligations under Section 8.20(d) against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
(g) The Agent may resign as Agent upon 30 days' notice to the Lenders, the
Owner Trustee, the Indenture Trustee, the Trust Depositor and the Servicer with
such resignation becoming effective upon a successor agent succeeding to the
rights, powers and duties of the Agent pursuant to this Section 8.20(g). If the
Agent shall resign as Agent under this Agreement, then the Required Lenders
shall appoint a successor agent for the Lenders, subject to consent by
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the Trust Depositor (such consent not to be unreasonably withheld). The
successor agent shall succeed to the rights, powers and duties of the Agent, and
the term "Agent" shall mean such successor agent effective upon its appointment,
and the former Agent's rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such former Agent or any
of the parties to this Agreement. After any retiring Agent's resignation as
Agent, the provisions of this Section shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
(h) Any amount owed to the Lenders which is paid by or on behalf of the
Trust, TCC or the Trust Depositor shall be deemed satisfied to the extent such
payment was received by the Agent, whether or not the Agent shall have remitted
the Pro Rata Share of such payment to the Lenders.
Section 8.21. Income Tax Characterization. Each of the Trust Depositor, the
Servicer, the Trust, the Indenture Trustee, the Agent and the Lenders agree to
treat the Loans as indebtedness of the Trust Depositor for purposes of federal
income, state and local income and franchise and any other income taxes.
Section 8.22. Indenture Trustee. The Indenture Trustee shall be afforded
all of the rights, powers, immunities and indemnities set forth in the Indenture
in the performance of its duties hereunder as if such rights, powers, immunities
and indemnities were specifically set forth herein.
Section 8.23. Confidentiality. In connection with any purchase of an
interest or a participation related to the above-referenced Loan Agreement or of
becoming a Lender hereunder (the "Transaction"), NCT Funding and TCC recognizes
that a purchaser of a participation or a Lender will need certain confidential
information relating to NCT Funding and TCC (such information, including
information obtained through inspection of NCT Funding or TCC pursuant to
Section 5.08 of this Agreement, "Information") including Information relating to
TCC's equipment lease programs that has not been disclosed to the public.
Because the use or disclosure of such Information would be damaging to NCT
Funding or TCC, each of NCT Funding and TCC are willing to supply such
Information to a prospective purchaser of a participation or a prospective
Lender only if the prospective purchaser of a participation or a prospective
Lender agrees to the conditions set forth below. The term "Information" shall
not include, and the following conditions shall not apply to, information that
(i) is published or part of the public knowledge prior to its receipt by such
prospective purchaser of a participation or a prospective Lender from the Agent,
NCT Funding or TCC, (ii) becomes published or part of the public knowledge after
its receipt by such prospective purchaser of a participation or prospective
Lender from the Agent, NCT Funding or TCC, (iii) was known to such prospective
purchaser of a participation or prospective Lender prior to its receipt by such
prospective purchaser of a participation or prospective Lender from the Agent,
NCT Funding or TCC, or (iv) is acquired by such prospective purchaser of a
participation or prospective Lender from someone other than the Agent, NCT
Funding or TCC or a representative thereof, provided that such representative
has a right to convey the information without restriction.
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Accordingly, in consideration of the foregoing, any prospective purchaser
of a participation or prospective Lender agree (on behalf of itself and each of
its affiliates, directors, officers, employees and representatives) that (A) the
Information will not be used by such prospective purchaser of a participation or
prospective Lender except in connection with the proposed Transaction mentioned
above and (B) such prospective purchaser of a participation or prospective
Lender shall use reasonable precautions, in accordance with its respective
customary procedures for handling confidential information and in accordance
with safe and sound banking practices, to keep the Information confidential,
provided that nothing herein shall limit the disclosure of any such information
(i) to the extent required by statute, rule, regulation or judicial process,
(ii) to such prospective purchaser of a participation or prospective Lender's
counsel or to counsel for any of the Lenders or the Agent, (iii) to bank
examiners, auditors or accountants, (iv) to the Agent or any other Lender, (v)
in connection with any litigation to which you or any one or more of the Lenders
is a party; provided, further, that, unless specifically prohibited by
applicable law or court order, such prospective purchaser of a participation or
prospective Lender agree, prior to disclosure of any of the Information, to
notify the Trust Depositor or the Agent, as applicable, of any request for
disclosure of any such information, (x) by any governmental agency or
representative thereof (other than any such request in connection with an
examination of your financial condition by such governmental agency) or (y)
pursuant to legal process.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to
be duly executed by their respective officers as of the day and year first above
written.
NCT FUNDING COMPANY, L.L.C., as Trust
Depositor
By: /s/ Frank Garcia
----------------------------------------
Name: Frank Garcia
-----------------------------------
Title: Senior Vice President
---------------------------------
AT&T CAPITAL CORPORATION, in its individual
capacity and as Servicer
By: /s/ Frank Garcia
----------------------------------------
Name: Frank Garcia
-----------------------------------
Title: Senior Vice President
---------------------------------
CIT EQUIPMENT COLLATERAL 2000-1
By: ALLFIRST FINANCIAL CENTER NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By: /s/ Pamela S. Hazelip
----------------------------------------
Name: Pamela S. Hazelip
-----------------------------------
Title: Vice President
---------------------------------
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Indenture Trustee
By: /s/ Craig M. Kantor
----------------------------------------
Name: Craig M. Kantor
-----------------------------------
Title: Vice President
---------------------------------
AT&T CAPITAL CORPORATION, as Agent,
By: /s/ Frank Garcia
----------------------------------------
Name: Frank Garcia
-----------------------------------
Title: Senior Vice President
---------------------------------
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<PAGE>
LENDERS
AT&T CAPITAL CORPORATION
By: /s/ Frank Garcia
----------------------------------------
Its: Senior Vice President
----------------------------------------
Loan Commitment: $9,492,882.00
---------------------------
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EXHIBIT A
FORM OF
[ASSIGNMENT AND ASSUMPTION AGREEMENT]
[PARTICIPATION AGREEMENT]
(Equipment Collateral 2000-1)
dated as of __________
Reference is made to the Loan Agreement, dated as of April 1, 2000 (as
amended from time to time, the "Loan Agreement") among CIT EQUIPMENT COLLATERAL
2000-1 (the "Trust"), THE CHASE MANHATTAN BANK, as indenture trustee (the
"Indenture Trustee"), NCT FUNDING COMPANY, L.L.C., as Trust Depositor, AT&T
CAPITAL CORPORATION, as Servicer, each of the lenders that is a signatory
thereto (together with its successors and assigns) (the "Lenders") and AT&T
CAPITAL CORPORATION, as Agent for the Lenders (the "Agent"). Terms defined in
the Loan Agreement are used herein as defined therein. __________ ("Assignor")
and __________ [("Assignee")] [("Participant")] hereby agree as follows:
1. The Assignor hereby sells and assigns to the [Assignee] [Participant]
without recourse and without representation or warranty (other than as expressly
provided herein), and the [Assignee] [Participant] hereby purchases and assumes
from the Assignor, that interest in and to all of the Assignor's rights and
obligations under the Loan Agreement as of the effective date hereof which
represents those and only those credit facilities contained in the Loan
Agreement which are set forth on Schedule I hereto (the "Assigned Facilities"),
in a principal amount for each Assigned Facility as set forth on such Schedule I
hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor; (ii)
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
the Loan Agreement, the Pooling Agreement, the Indenture or any other
Transaction Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Agreement, any Transaction
Document or any other instrument or document furnished pursuant thereto; and
(iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any party to the Loan Agreement or any
Transaction Document or the performance or observance by any party to the Loan
Agreement or any Transaction Document or of any of their respective obligations
under the Loan Agreement, any Transaction Document or any other instrument or
document furnished pursuant thereto.
3. The [Assignee] [Participant] (i) confirms that it has received a copy of
the Loan Agreement, together with copies of the financial statements referred to
therein and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this [Assignment and
Assumption] [Participation] Agreement; (ii) agrees that it will independently
and without reliance upon the Agent, the Assignor or any other
<PAGE>
Lenders and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Agreement or the Transaction Documents; (iii)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under the Loan Agreement and Transaction Documents as
are delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Agreement are required to be performed by it as a Lender and agrees not to
unreasonably withhold its consent to actions permitted to be taken under the
Loan Agreement with the consent of the Required Lenders; and (v) has supplied
the information requested in the administrative questionnaire attached hereto as
Schedule II.
4. Following the execution of this [Assignment and Assumption]
[Participation] Agreement by the Assignor and the [Assignee] [Participant], an
executed original hereof (together with all attachments) will be delivered to
the Agent (with a copy to the Servicer and the Trust Depositor). The effective
date of this [Assignment and Assumption] [Participation] Agreement shall be the
later of the effective date set forth in Schedule I and the date of execution
hereof by the Assignor and the [Assignee] [Participant].
[5. Upon delivery of a fully executed original hereof (including, if
required pursuant to Section 8.09 of the Loan Agreement, the signed consent of
the Trust Depositor) to the Agent, as of the effective date, (i) the Assignee
shall be a party to the Loan Agreement and, to the extent provided in this
Assignment and Assumption Agreement, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent provided in this
Assignment and Assumption Agreement and except as provided in Section 8.09 of
the Loan Agreement, relinquish its rights and be released from its obligations
under the Loan Agreement.]
[6. It is agreed that the Assignee shall be entitled to all interest and
fees in respect of the Assigned Facilities which accrues on and after the
effective date hereof, such interest and fees to be paid by the Agent directly
to the Assignee. It is further agreed that all payments of principal made on the
Loan which occur on and after the effective date hereof will be paid directly by
the Agent to the Assignee. Upon the execution of this Assignment and Assumption
Agreement, the Assignee shall pay to the Assignor an amount specified by the
Assignor in writing which represents the portion of the principal amount of the
respective Loan made by the Assignor pursuant to the Loan Agreement outstanding
on the effective date hereof which constitute Assigned Facilities. The Assignor
and the Assignee shall make all appropriate adjustments in payment under the
Loan Agreement for periods prior to the effective date hereof directly between
themselves on or prior to the effective date hereof.]
7. The [Assignee] [Participant] represents, warrants and covenants that it
has not acquired, and shall not sell, trade or transfer any interest in its [Pro
Rata Share] [Participation], nor cause any interest in its [Pro Rata
Share][Participation] to be marketed on or through either (i) an "established
securities market" within the meaning of Section 7704(b)(1) of the Internal
Revenue Code of 1986 (the "Code") (including an interdealer quotation system
that regularly disseminates firm buy or sell quotations by identified brokers or
dealers by electronic means or otherwise) or (ii) a "secondary market" within
the meaning of Code Section 7704(b)(2)
A-2
<PAGE>
(including a market wherein interests in Pro Rata Shares or Participations
therein are regularly quoted by any person making a market in such interests and
a market wherein any person regularly makes available bid or offer quotes with
respect to interests in Pro Rata Shares or Participations therein and stands
ready to effect buy or sell transactions at the quoted prices for itself or on
behalf of others).
8. Unless the Trust Depositor consents otherwise (which consent shall be
based on an Opinion of Counsel generally to the effect that the action taken
pursuant to the consent will not cause the Trust to become a publicly traded
partnership treated as a corporation), the [Assignee] [Participant] represents,
warrants and covenants that either (i) it is properly classified as, and will
remain classified as, a "corporation" as described in Code Section 7701(a)(3)
and is not, and will not become, an "S corporation" under Code Section 1361, or
(ii) neither (x) substantially all of the value of any beneficial owner's
interest in the [Assignee] [Participant] is attributable to the [Assignee's]
[Participant's] [Pro Rata Share] [Participation] nor (y) its acquisition of the
[Pro Rata Share] [Participation] is for the purpose of permitting the Trust to
avoid the 100-partner limitation of Treasury Regulation Section
1.7704-1(h)(3)(ii) in the event the Trust is characterized as a partnership for
federal income tax purposes (an entity meeting the requirements of either (i) or
(ii) being a "Permitted Entity"). The [Assignee] [Participant] represents,
warrants and covenants that it shall (i) cause each of its assignees and
Participants otherwise permitted under the Loan Agreement to make
representations, warranties and covenants as required by Section 8.09(d) of the
Loan Agreement for the benefit of the Trust Depositor and the Trust at the time
such assignee or Participant became an assignee or Participant and (ii) forward
a copy of such representations, warranties and covenants to the Indenture
Trustee. In the event of any breach of the representation, warranty and covenant
of the [Assignee] [Participant] or its Participant that the [Assignee]
[Participant] and its Participants shall remain a Permitted Entity, the
[Assignee] [Participant] shall notify the Agent and the Trust Depositor promptly
upon the [Assignee] [Participant]'s becoming aware of such breach, and thereupon
the Agent and the [Assignee] [Participant] hereby agree to use reasonable
efforts to procure a replacement investor not so affected which is a Permitted
Assignee reasonably acceptable to the Agent or is otherwise reasonably
acceptable to the Trust Depositor and the Agent to replace the [Assignee]
[Participant]. In any such event, Trust Depositor shall also have the right to
procure a replacement investor, provided that such proposed replacement investor
is a Permitted Assignee or is otherwise reasonably acceptable to the Agent. The
[Assignee] [Participant] hereby agrees to take all actions necessary to permit a
replacement investor to succeed to its rights and obligations hereunder. [If the
[Assignee] [Participant] has a Participant which has breached its
representation, warranty and covenant that it shall remain a Permitted Entity,
the [Assignee] [Participant] hereby agrees (without limiting the right of Trust
Depositor to procure a replacement investor for the [Assignee] [Participant] as
provided above in this paragraph) to notify the Trust Depositor and the Agent of
such breach promptly upon the [Assignee] [Participant]'s becoming aware thereof
and to use reasonable efforts to procure a replacement Participant, as
applicable, not so affected which is a Permitted Assignee or is otherwise
acceptable to the Trust Depositor and the Agent to replace any such
Participant.]
[if [Assignee] [Participant] is organized under the laws of any
jurisdiction outside the United States:
A-3
<PAGE>
9. The [Assignee] [Participant] represents and warrants that, under
applicable law no taxes will be required to be withheld by the Agent, the Trust,
the Indenture Trustee, the Trust Depositor, the Servicer or any Lender with
respect to any payments to be made to the [Assignee] [Participant] in respect of
an interest in its [Pro Rata Share][Participation].
10. The [Assignee] [Participant] agrees (for the benefit of the Agent, the
Trust, the Owner Trustee, the Indenture Trustee, the Trust Depositor, the
Servicer and the Lenders) to provide those forms required to be provided by
Sections 2.08(d), 8.08(b), 8.08(c) and 8.08(f) of the Loan Agreement, as
applicable, at the time and in the manner described therein, and to comply with
all applicable U.S. laws and regulations with regard to the related withholding
tax exemptions.]
11. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[signature page follows]
A-4
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this [Assignment and
Assumption][Participation] Agreement to be duly executed as of the day and year
first above written on Schedule I hereto.
[NAME OF ASSIGNOR], [NAME OF ASSIGNEE],
as Assignor as Assignee
By: By:
--------------------- --------------------
Title: Title:
----------------- -----------------
ACCEPTED:
AT&T CAPITAL CORPORATION
as Agent
By:
--------------------
Title:
-----------------
The undersigned acknowledges receipt from the Assignor and the Assignee of
a copy of the foregoing [Assignment and Assumption][Participation] Agreement.
NCT FUNDING COMPANY, L.L.C.
as Trust Depositor
By:
--------------------
Title:
-----------------
A-5
<PAGE>
Schedule I to the [Assignment and
Assumption][Participation] Agreement
Legal Name of Assignor:
Legal Name of Assignee:
Effective Date of Assignment: __________, 19__
Facility Assigned
Total Commitment of
Assignee after Assignment: $________
Principal Amount of Loans of
Assignee after Assignment: $________
Pro Rata Share of Assignee
after Assignment: _____%
Facility Retained by Assignor
Total Commitment of Assignor
after Assignment: $________
Principal Amount of Loans of
Assignor after Assignment: $________
Pro Rata Share of Assignor
after Assignment: _____%
A-6
<PAGE>
Schedule II to the [Assignment and
Assumption][Participation] Agreement
Administrative Details Reply Form
1. LENDING OFFICE:
Name of Lending Entity:
Address:
Telex No:
Fax No:
2. CONTACTS - CREDIT MATTERS
Name of Person:
Address:
Telephone:
Fax No:
3. CONTACTS - OPERATIONS/ADMINISTRATION
Name of Person:
Address:
Telephone:
Telex No:
Fax No:
4. PAYMENT INSTRUCTIONS
Pay To:
Address:
ABA Number:
Acct. Number:
Acct. Name:
Reference:
A-7
<PAGE>
EXHIBIT B
FORM OF MONTHLY STATUS REPORT
<PAGE>
EXHIBIT C
FORM OF CONFIDENTIALITY AGREEMENT
[DATE]
CONFIDENTIALITY AGREEMENT
[Insert Name and
Address of Prospective
Assignee or Participant]
Re: Loan Agreement, dated as of April 1, 2000 (as amended from time to
time, the "Loan Agreement") among CIT Equipment Collateral 2000-1 (the
"Trust"), The Chase Manhattan Bank, as indenture trustee (the
"Indenture Trustee"), NCT FUNDING COMPANY, L.L.C. ("NCT Funding"), as
Trust Depositor, AT&T CAPITAL CORPORATION ("TCC"), as Servicer, each of
the lenders that is a signatory thereto (together with its successors
and assigns) (the "Lenders") and AT&T CAPITAL CORPORATION as Agent for
the Lenders (the "Agent").
Ladies and Gentlemen:
In connection with your consideration of a purchase of an interest or a
participation related to the above-referenced Loan Agreement or of becoming a
Support Bank as described in such Loan Agreement (the "Transaction"), we and
each of NCT Funding and TCC recognize that you will need certain confidential
information furnished to us by NCT Funding and TCC or by such parties directly
to you (such information, including information obtained through inspection of
NCT Funding or TCC pursuant to Section 5.08 of the Loan Agreement,
"Information") about NCT Funding and TCC and its equipment lease programs that
has not been disclosed to the public. Because the use or disclosure of such
Information would be damaging to NCT Funding or TCC, each of NCT Funding and TCC
are willing to supply, or to permit us to supply, you with such Information only
if you agree to the conditions set forth below. The term "Information" shall not
include, and the following conditions shall not apply to, information that (i)
is published or part of the public knowledge prior to its receipt by you from
us, NCT Funding or TCC, (ii) becomes published or part of the public knowledge
after its receipt by you from us, NCT Funding or TCC, (iii) was known to you
prior to its receipt by you from us, NCT Funding or TCC, or (iv) is acquired by
you from someone other than us, NCT Funding or TCC or a representative thereof,
provided that such representative has a right to convey the information without
restriction.
Accordingly, in consideration of the foregoing, you agree (on behalf of
yourself and each of your affiliates, directors, officers, employees and
representatives) that (A) the Information will not be used by you except in
connection with the proposed Transaction mentioned above and (B) you shall use
reasonable precautions, in accordance with your customary procedures for
handling confidential information and in accordance with safe and sound banking
practices, to keep the Information confidential, provided that nothing herein
shall
<PAGE>
limit the disclosure of any such information (i) to the extent required by
statute, rule, regulation or judicial process, (ii) to your counsel or to
counsel for any of the Lenders or the Agent, (iii) to bank examiners, auditors
or accountants, (iv) to the Agent or any other Lender, (v) in connection with
any litigation to which you or any one or more of the Lenders is a party;
provided, further, that, unless specifically prohibited by applicable law or
court order, you agree, prior to disclosure of any of the Information, to notify
the Trust Depositor or the Agent, as applicable, of any request for disclosure
of any such information, (x) by any governmental agency or representative
thereof (other than any such request in connection with an examination of your
financial condition by such governmental agency) or (y) pursuant to legal
process.
Would you please indicate your agreement to the foregoing by signing at the
place provided below the enclosed copy of this Confidentiality Agreement.
Very truly yours,
[Insert Name of Lender]
By:
---------------------
Name:
----------------
Title:
----------------
The foregoing is agreed to as
of the date of this letter
[Insert name of prospective
assignee or participant]
By:
---------------------
Name:
----------------
Title:
----------------
C-2
<PAGE>
- --------------------------------------------------------------------------------
ADMINISTRATION AGREEMENT
among
CIT EQUIPMENT COLLATERAL 2000-1,
as Issuer,
AT&T Capital Corporation,
as Administrator
NCT FUNDING COMPANY, L.L.C.
as Trust Depositor,
and
The Chase Manhattan Bank
as Indenture Trustee
Dated as of April 1, 2000
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
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..............................................................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 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.......................................................12
Exhibit A.........................................................................14
</TABLE>
i
<PAGE>
This Administration Agreement, dated as of April 1, 2000 (this
"Agreement"), is among CIT Equipment Collateral 2000-1 (the "Issuer"), AT&T
Capital 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 The Chase
Manhattan 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 6.723024% Class A-1 Receivable-Backed
Notes, Series 2000-1, Floating Rate Class A-2a Receivable-Backed Notes, Series
2000-1, Floating Rate Class A-2b Receivable-Backed Notes, Series 2000-1,
Floating Rate Class A-3 Receivable-Backed Notes, Series 2000-1, 7.58% Class A-4
Receivable-Backed Notes, Series 2000-1, 7.54% Class B Receivable-Backed Notes,
Series 2000-1, 7.63% Class C Receivable-Backed Notes, Series 2000-1, and 8.09%
Class D Receivable-Backed Notes, Series 2000-1 (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:
<PAGE>
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
2
<PAGE>
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);
(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
3
<PAGE>
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);
(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
4
<PAGE>
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
(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
5
<PAGE>
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 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
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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.
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.
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(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.
(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.
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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, 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:
AT&T Capital Corporation
650 CIT Drive
Livingston, New Jersey 07039
Attn: Treasury - Securitization
Fax No.: (973) 535-5900
Tel. No.: (973) 740-5058
(ii) If to the Trust Depositor:
NCT Funding Company, L.L.C.
650 CIT Drive
Livingston, New Jersey 07039
Attention: Treasury - Securitization
Fax No.: (973) 535-5900
Tel. No.: (973) 740-5058
(iii) If to the Indenture Trustee:
The Chase Manhattan Bank
450 West 33rd Street
New York, NY 10001-2697
Attn: Capital Markets Fiduciary Services/
Structured Finance Services - CIT 2000-1
Fax No.: (212) 946-3916/8302
Tel. No.: (212) 946-3200
(iv) If to the Issuer or the Owner Trustee:
CIT Equipment Collateral 2000-1
c/o Allfirst Financial Center National Association
499 Mitchell Road - MC 101 - 591
Millsboro, Delaware 19966
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Attention: Corporate Trust Administration - CIT
2000-1
Fax No.: (410) 244-4236
Telephone No.: (410) 244-4626
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 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.
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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 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 Allfirst Financial Center National
Association , not in its individual capacity but solely in its capacity as Owner
Trustee of the Issuer and in no event shall Allfirst Financial Center 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 The Chase Manhattan Bank not in its
individual capacity but solely as Indenture Trustee and in no event shall The
Chase Manhattan 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.
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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 2000-1
By: ALLFIRST FINANCIAL CENTER
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Owner
Trustee
By: /s/ Pamela S. Hazelip
-----------------------------
Printed Name: Pamela S. Hazelip
Title: Vice President
NCT FUNDING COMPANY, L.L.C.
as Trust Depositor
By: /s/ Frank Garcia
-----------------------------
Printed Name: Frank Garcia
Title: Senior Vice President
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ Craig M. Kantor
-----------------------------
Printed Name: Craig M. Kantor
Title: Vice President
AT&T CAPITAL CORPORATION, as
Administrator
By: /s/ Frank Garcia
-----------------------------
Printed Name: Frank Garcia
Title: Senior Vice President
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EXHIBIT A
LIMITED POWER OF ATTORNEY
State of New York )
)SS.
County of )
KNOW ALL PERSONS BY THESE PRESENTS, that Allfirst Financial Center
National Association, not in its individual capacity but solely as owner trustee
(the "Owner Trustee") of CIT Equipment Collateral 2000-1, 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 April 1, 2000 (the "Administration
Agreement"), among the Trust, NCT Funding Company, L.L.C., The Chase Manhattan
Bank, as Indenture Trustee, and AT&T Capital Corporation, as Administrator, does
hereby nominate, constitute and appoint AT&T Capital 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 stead, 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.
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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 ___ day of May, 2000.
ALLFIRST FINANCIAL CENTER
NATIONAL ASSOCIATION, not in its individual
capacity but solely as Owner Trustee
By:
Printed Name:
Title:
CIT EQUIPMENT COLLATERAL 2000-1
By: ALLFIRST FINANCIAL CENTER
NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Owner Trustee
By:
Printed Name:
Title:
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CERTIFICATE OF ACKNOWLEDGMENT OF
NOTARY PUBLIC
State of New York )
)SS.
County of )
On May ___, 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]
16
