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EXECUTION VERSION
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POOLING AND SERVICING AGREEMENT
among
CIT EQUIPMENT COLLATERAL 2005-VT1
as Issuer,
CIT FUNDING COMPANY, LLC
as Depositor,
CIT FINANCIAL USA,
INC.
in its individual capacity and as Servicer
Dated as of February 1, 2005
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS.........................................................1
Section 1.01
Definitions................................................1
Section 1.02 Usage of
Terms............................................39
Section 1.03 Section
References........................................40
Section 1.04 Accounting
Terms..........................................40
ARTICLE II FUNDINGS OF TRUST; TRANSFERS OF
CONTRACTS.........................40
Section 2.01 Creation and Funding
of Trust; Transfer of Transferred
Assets to Trust........................................40
Section 2.02 Conditions to
Transfers...................................41
Section 2.03 Acceptance by
Trust.......................................43
Section 2.04 Conveyance of
Substitute Contracts........................44
Section 2.05 Release of Excluded
Amounts...............................45
ARTICLE III REPRESENTATIONS AND
WARRANTIES...................................45
Section 3.01 Representations and
Warranties Regarding the Depositor....46
Section 3.02 Representations and
Warranties of the Servicer............49
Section 3.03 Payments of Taxes and
Other Governmental Charges..........50
ARTICLE IV PERFECTION OF TRANSFERS AND
PROTECTION OF SECURITY INTERESTS......51
Section 4.01 Custody of
Contracts......................................51
Section 4.02
Filings...................................................52
Section 4.03 Name Change or
Relocation.................................52
ARTICLE V SERVICING OF
CONTRACTS.............................................53
Section 5.01 Initial Servicer's
Appointment and Acceptance;
Responsibility for Contract Administration.............53
Section 5.02 General
Duties............................................53
Section 5.03 Assignment or
Replacement.................................54
Section 5.04 Disposition Upon
Termination of Contract..................54
Section 5.05
Subservicers..............................................54
Section 5.06 Further
Assurance.........................................54
Section 5.07 Notice to
Obligors........................................55
Section 5.08 Collection Efforts;
Modification of Contracts.............55
Section 5.09 Prepayments of Certain
Contracts..........................56
Section 5.10 Certain Extensions;
Acceleration..........................56
Section 5.11 Taxes and Other
Amounts...................................56
Section 5.12 Suits by
Servicer.........................................57
Section 5.13
Remittances...............................................57
Section 5.14 Servicer
Advances.........................................57
Section 5.15 Realization Upon
Defaulted Contract.......................57
Section 5.16 Maintenance of
Insurance Policies.........................57
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Section 5.17 Certain Other Duties
With Respect to Trust................58
Section 5.18 Servicing
Compensation....................................58
Section 5.19 Payment of Certain
Expenses by Servicer...................58
Section 5.20
Records...................................................58
Section 5.21
Inspection................................................58
Section 5.22 Trust To Cooperate in
Releases............................59
Section 5.23 Separate Entity
Existence.................................59
Section 5.24 Assignment of
Servicing...................................59
ARTICLE VI COVENANTS OF THE
DEPOSITOR........................................60
Section 6.01 LLC
Existence.............................................60
Section 6.02 Contracts Not to be
Evidenced by Promissory Notes.........60
Section 6.03 Security
Interests........................................60
Section 6.04 Delivery of
Collections...................................60
Section 6.05 Regulatory
Filings........................................60
Section 6.06 Compliance With
Law.......................................60
Section 6.07
Activities................................................60
Section 6.08
Indebtedness..............................................61
Section 6.09
Guarantees................................................61
Section 6.10
Investments...............................................61
Section 6.11 Merger;
Transfers.........................................61
Section 6.12
Payments..................................................61
Section 6.13 Other
Agreements..........................................62
Section 6.14 Separate Entity
Existence.................................62
Section 6.15 Location;
Records.........................................63
Section 6.16 Liability of
Depositor; Indemnities.......................63
Section 6.17 Bankruptcy
Limitations....................................64
Section 6.18 Limitation on
Liability of Depositor and Others...........65
ARTICLE VII ESTABLISHMENT OF ACCOUNTS;
PAYMENTS..............................65
Section 7.01 Trust Accounts;
Collections...............................65
Section 7.02 Cash Collateral
Account...................................66
Section 7.03 Trust Account
Procedures..................................67
Section 7.04 Securityholder
Payments...................................67
Section 7.05 Allocations and
Payments..................................68
Section 7.06 Repurchases of, or
Substitution for, Contracts for
Breach of Representations and Warranties...............73
Section 7.07 Reassignment of
Repurchased or Substituted Contracts......74
Section 7.08 The Servicer's
Purchase Option............................74
ARTICLE VIII SERVICER DEFAULTS; SERVICING
TRANSFER...........................74
Section 8.01 Servicer
Default..........................................74
Section 8.02 Servicing
Transfer........................................75
Section 8.03 Appointment of
Successor Servicer; Reconveyance;
Successor Servicer to Act..............................76
Section 8.04 Notifications to
Noteholders and the Equity
Certificateholders.....................................77
Section 8.05 Effect of
Transfer........................................78
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Section 8.06 Database
File.............................................78
Section 8.07 Successor Servicer
Indemnification........................78
Section 8.08 Responsibilities of
the Successor Servicer................78
Section 8.09 Servicer Not to
Resign....................................79
ARTICLE IX SERVICER
REPORTING................................................79
Section 9.01 Monthly
Reports...........................................79
Section 9.02 Officer's
Certificate.....................................80
Section 9.03 Other
Data................................................80
Section 9.04 Annual Reporting;
Evidence as to Compliance...............80
Section 9.05 Annual Statement of
Compliance from Servicer..............80
ARTICLE X
TERMINATION........................................................81
Section 10.01 Sale of Trust
Assets......................................81
ARTICLE XI
MISCELLANEOUS.....................................................81
Section 11.01
Amendments................................................81
Section 11.02
Reserved..................................................83
Section 11.03 Governing
Law.............................................83
Section 11.04
Notices...................................................83
Section 11.05 Severability of
Provisions................................85
Section 11.06 Third Party
Beneficiaries.................................85
Section 11.07
Counterparts..............................................86
Section 11.08
Headings..................................................86
Section 11.09 No Bankruptcy Petition;
Disclaimer and Subordination......86
Section 11.10
Jurisdiction..............................................87
Section 11.11
[Reserved]................................................87
Section 11.12 Servicer
Indemnity........................................87
Section 11.13 Limitation of Liability of
Owner Trustee..................88
Section 11.14 WAIVER OF JURY
TRIAL......................................88
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
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This
POOLING AND SERVICING AGREEMENT, dated as of February 1, 2005,
is
among CIT Equipment Collateral 2005-VT1, a
Delaware statutory trust (together
with its successors and assigns, the
"Issuer" or the "Trust"), CIT Funding
Company, LLC, a Delaware limited liability
company (together with its successors
and assigns, the "Depositor"), and CIT
Financial USA, Inc. (together with its
successors and assigns, "CFUSA" and, in its
capacity as the Servicer, the
"Servicer").
WHEREAS the Depositor desires to fund the Trust by selling,
conveying
and assigning from time to time, pursuant
hereto or pursuant to 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 CFUSA;
(ii) by CFUSA to the Depositor, with
respect to Contracts and related assets
both originated or acquired directly by
CFUSA as a Financing Originator, and
acquired by CFUSA 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 originated by
the Financing Originators and
warehoused in the VFC Trust, by the VFC
Trust back 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.
"Accountant's Report" has the meaning specified in Section
9.04.
"Accrual Period" means, with respect to any Payment Date, with
respect
to the Class A-1 Notes, the period from and
including the immediately preceding
Payment Date to but excluding such Payment
Date (or, in the case of the initial
Accrual Period, from and including the
Closing Date to but excluding the first
Payment Date following the Closing Date),
and with respect to each other Class
of Notes, the period from and including the
20th day of the immediately
preceding calendar month to but excluding
the 20th day of the related calendar
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month, provided, that in each case, the
initial Accrual Period following the
Closing Date shall be the period from and
including the Closing Date to but
excluding April 20, 2005.
"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
Contracts from CFUSA), 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 Contract Pool) to
which such Subsequent Contract relates,
with such notice to be signed both by
the Depositor and CFUSA.
"Administration Agreement" means the Administration Agreement dated
as
of February 1, 2005 by and among the Trust,
CFUSA, 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.
"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.
"Agreement" means this Pooling and Servicing Agreement, as
amended,
restated, supplemented or otherwise
modified from time to time in accordance
with the terms hereof.
"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, (i)
the
sum of the Available Pledged Revenues for
such Payment Date and (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).
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"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) and Servicer
Advances on deposit in the
Collection Account as of the immediately
preceding Deposit Date, (iii) the
amount paid by CFUSA 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 States of New Jersey or New
York are authorized or obligated by law,
executive order, or governmental decree
to be closed.
"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 February 1, 2005, 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 Floor" means $24,100,196.94.
"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.
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"Cash Collateral Initial Balance" means $57,237,967.73.
"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.
"CFUSA" means CIT Financial USA, Inc., a Delaware corporation.
"CFUSA Contract" means a Contract originated or acquired by
CFUSA
(including without limitation any Contract
originated or acquired by CFUSA 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.
"CFUSA Contract Assets" means Contract Assets relating to CFUSA
Contracts.
"CIT" means 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-2 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-2 Notes,
the
Class A-3 Notes and the Class A-4
Notes.
"Class A Percentage" means 92.25%.
"Class A Principal Payment Amount" means: (1) 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-2, Class A-3 and
Class A-4 Notes over (y) the Class A
Target Principal Amount; and (2) with
respect to any Payment Date thereafter,
the excess of (x) the sum of the Principal
Amount of the Class A-2, 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
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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 3.07275% per annum.
"Class A-1 Maturity Date" means March 20, 2006 (or, if such day is
not
a Business Day, the next preceding Business
Day).
"Class A-1 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-1
Interest Rate, (ii) the Initial Class
A-1 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-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 $205,000,000 aggregate principal amount
of
3.07275% Receivable-Backed Notes, Class
A-1, issued pursuant to the Indenture.
"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.
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Payment Date Class A-1
Scheduled Principal Balance
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April 2005
$159,413,837.31
May 2005
$134,866,138.42
June 2005
$112,560,421.12
July 2005
$ 90,172,853.69
August 2005
$ 65,251,419.04
September 2005
$ 42,433,064.61
October 2005
$ 19,274,637.59
November 2005
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</TABLE>
"Class A-2 Interest Carryover Shortfall" means, with respect to
any
Payment Date, the excess, if any, of the
Class A-2 Interest Distributable Amount
for the preceding Payment Date over the
amount that was actually distributed in
respect of interest on the Class A-2 Notes
on such preceding Payment Date, plus,
to the extent permitted by law, an amount
equal to the product of (i) the Class
A-2 Interest Rate, (ii) such excess, and
(iii) a fraction equal to one-twelfth.
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"Class A-2 Interest Distributable Amount" means, with respect to
any
Payment Date, the sum of the Class A-2
Monthly Interest Distributable Amount and
the Class A-2 Interest Carryover Shortfall
for such Payment Date.
"Class A-2 Interest Rate" means 3.76000% per annum.
"Class A-2 Maturity Date" means May 21, 2007 (or, if such day is
not a
Business Day, the next succeeding Business
Day thereafter).
"Class A-2 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-2
Interest Rate, (ii) the Initial Class
A-2 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-2 Interest Rate, (ii) the Principal
Amount of the Class A-2 Notes on the
immediately preceding Payment Date, after
giving effect to all payments of
principal to Class A-2 Noteholders on or
prior to such immediately preceding
Payment Date, and (iii) a fraction equal to
one-twelfth.
"Class A-2 Notes"
means the $232,000,000 aggregate principal amount of
3.76000% Receivable-Backed Notes, Class
A-2, issued pursuant to the Indenture.
"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 one-twelfth.
"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 4.12000% per annum.
"Class A-3 Maturity Date" means August 20, 2008 (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
prior to such immediately preceding
Payment Date, and (iii) a fraction equal to
one-twelfth.
"Class A-3 Notes" means the $211,000,000 aggregate principal amount
of
4.12000% Receivable-Backed Notes, Class
A-3, issued pursuant to the Indenture.
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"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 4.36000% per annum.
"Class A-4 Maturity Date" means November 20, 2012 (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 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-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 $93,070,000 aggregate principal amount
of
4.36000% 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) 4.41875% 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
Notes or the Class D Notes on such Payment
Date) and the amount on deposit in
the Cash Collateral Account (after giving
effect to withdrawals and releases 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 or
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.
-7-
<PAGE>
"Class B Interest Rate" means 4.09000% per annum.
"Class B Maturity Date" means November 20, 2012 (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 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 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 $18,080,000 aggregate principal amount
of
4.09000% Receivable-Backed Notes, Class B,
issued pursuant to the Indenture.
"Class B Percentage" means 2.25%.
"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) 4.25%
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 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 and releases 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 or 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.
-8-
<PAGE>
"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 4.18000% per annum.
"Class C Maturity Date" means November 20, 2012 (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 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 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 $16,070,000 aggregate principal amount
of
4.18000% Receivable-Backed Notes, Class C,
issued pursuant to the Indenture.
"Class C Percentage" means 2.00%.
"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.
"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) 4.275%
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 and releases 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
-9-
<PAGE>
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 4.51000% per annum.
"Class D Maturity Date" means November 20, 2012 (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 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 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 $28,119,898 aggregate principal amount
of
4.51000% Receivable-Backed Notes, Class D,
issued pursuant to the Indenture.
"Class D Percentage" means 3.50%.
"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) 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 March 23, 2005.
"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
-10-
<PAGE>
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 in which
the initial Payment 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 CFUSA or the VFC Trust, as
the case may be, in, to and under:
(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 and
processed 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;
-11-
<PAGE>
(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) or, in each case,
if (but only if) such original
documents are intangible documents, the
electronic files of such originals, 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 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.
"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, the
Unfunded Loss 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 CFUSA 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 corporate trust office of the
Owner
Trustee in the State of New York, which
office initially shall be located at
1011 Centre Road, Suite 200 Wilmington, DE
19805, Attn: CIT Equipment Collateral
2005-VT1, or such other office at such
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<PAGE>
other address in the State of New York 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.
"Cumulative Net Loss Event" means, with respect to any
Collection
Period, the Cumulative Net Loss Ratio for
such Collection Period exceeds the
Cumulative Net Loss Trigger for such
Collection Period.
"Cumulative Net Loss Ratio" means the ratio of (a) the
Cumulative
Reported Net Losses recognized with respect
to the Contracts in the Contract
Pool since the Initial Cut-Off Date over
(b) the Initial Contract Pool Principal
Balance.
"Cumulative Net Loss Trigger" means, for each of the Collection
Periods set forth below, the Cumulative Net
Loss Ratio percentage opposite such
Collection Period (and measured on each of
the Payment Dates following the
Collection Periods specified below):
<TABLE>
<CAPTION>
Collection Periods
Cumulative Net Loss Ratio
------------------
-------------------------
<S>
<C>
March 2005
0.50%
April 2005
0.50%
July 2005
1.00%
October 2005
2.00%
January 2006
3.00%
April 2006
3.50%
July 2006
4.50%
October 2006
5.00%
January 2007
5.50%
April 2007
6.00%
July 2007
6.00%
October 2007
6.50%
January 2008 and each collection period
thereafter
6.50%
</TABLE>
"Cumulative Reported Net Losses" means, with respect to any
Collection
Period, the aggregate principal balance of
the Defaulted Contracts from the
Initial Cut-Off Date to the last day of the
Collection Period minus the sum of
any subsequent cash collections on
Defaulted Contracts, including Liquidation
Proceeds.
"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
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<PAGE>
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).
"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 as an Amount Available) 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 180 days or more 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 4.810%.
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<PAGE>
"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 CFUSA
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 CFUSA to the Depositor
under the VFC Purchase Agreement or
the Non-VFC Purchase Agreement, as the case
may be, if a CFUSA 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 Originator, CFUSA or the VFC
Trust, as the case may be, 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
CFUSA 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), CFUSA
or the VFC Trust owned and had good and
marketable title to (and following the
transfer by CFUSA or the VFC Trust, the
Depositor owned and had good and
marketable title to) the Contracts free and
clear of any Liens, 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 CFUSA, such
Contract was owned by the applicable TCC
Financing Originator free and clear of
any Liens, 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 CFUSA'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
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<PAGE>
by the relevant Financing Originator, CFUSA
(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 CFUSA or to
the Depositor and then the VFC Trust and
(b) the 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 "tangible
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 CFUSA, and (ii) in respect
of all Contracts to evidence or
perfect the conveyance or transfer of
CFUSA's or the VFC Trust's ownership
interest in the Contract, and CFUSA'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 CFUSA (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 Delaware 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 CFUSA's knowledge, subject to
bankruptcy or other insolvency
proceedings;
(l) the Obligor's billing address is in the United States or
Puerto Rico, and the Contract is a U.S.
dollar-denominated obligation;
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<PAGE>
(m) if the Contract is not an "instrument" for purposes of the
UCC, 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 or, if the Contract
Constitutes an "instrument" for purposes of the
UCC, all consents and approvals required by
the terms of the Contract for the
sale of the Contract hereunder have been
received;
(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, CFUSA 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 tangible 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;
(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
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<PAGE>
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;
(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, A-1+ from Standard & Poor's
and, if rated by Fitch, F-1+ from Fitch; 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, at least
A-1+ by Standard & Poor's and, if rated
by Fitch, at least F-1+ by Fitch;
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<PAGE>
(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, at least AAA from Standard
& Poor's and, if rated by Fitch, at
least AAA from Fitch, 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, at
least A-1+ from Standard & Poor's and,
if rated by Fitch, at least F-1+ from
Fitch, at the time of such investment;
(vi) money market funds which are rated Aaa by Moody's, at
least AAAm or AAAm-G by Standard &
Poor's and, if rated by Fitch, at least AAA
by Fitch, 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 Depositor 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
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 CFUSA, the transfer of
CFUSA'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
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<PAGE>
been duly perfected, or (B) if the
Secondary Contract instead secures a Vendor
Loan constituting a CFUSA Contract, then
the transfer of CFUSA'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 CFUSA, 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.
"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.
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<PAGE>
"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.
"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: CIT Technology Financing Services,
Inc; CIT Communications Finance
Corporation; and CFUSA.
"Fitch"
means Fitch, Inc., or any successor thereto.
"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
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<PAGE>
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.
"Independent Accountant" has the meaning specified in Section
9.04.
"Ineligible Contract" has the meaning specified in Section
7.06.
"Initial Class A-1 Principal Amount" means $205,000,000.
"Initial Class A-2 Principal Amount" means $232,000,000.
"Initial Class A-3 Principal Amount" means $211,000,000.
"Initial Class A-4 Principal Amount" means $93,070,000.
"Initial Class B Principal Amount" means $18,080,000.
"Initial Class C Principal Amount" means $16,070,000.
"Initial Class D Principal Amount" means $28,119,898.
"Initial Contract Assets" means those Contract Assets conveyed to
the
Trust on the Closing Date.
"Initial Contract Pool Principal Balance" is $803,339,898.
"Initial Contracts" means those Contracts conveyed to the Trust on
the
Closing Date.
"Initial Cut-Off Date" means February 1, 2005.
"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
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<PAGE>
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.
"Insolvency Proceeds" has the meaning specified in Section
10.01.
"Insurance Policy" means, with respect to any Contract, an
insurance
policy covering physical damage to or loss
of the related Equipment.
"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 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.
"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
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<PAGE>
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 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
and Scheduled Payments received on such
Defaulted Contracts), 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 CFUSA, 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.
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<PAGE>
"Maturity Date" means, as applicable, the Class A-1 Maturity
Date,
Class A-2 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.
"Monthly Report" has the meaning specified in Section 9.01.
"Moody's" means Moody's Investors Service, Inc., or any
successor
thereto.
"Nonrecoverable 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.
"Non-VFC Contract Assets" means the Contract Assets pertaining to
the
Non-VFC Contracts.
"Non-VFC Contracts" means Contracts conveyed by CFUSA 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 February 1, 2005, by
and among the Financing Originators
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 February 1, 2005, by and
among CFUSA, 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-2 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
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<PAGE>
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).
"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.
"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.
"Other Assets" has the meaning specified in Section 11.09.
"Outstanding" has the meaning specified in the Indenture.
"Owner Trustee" means Deutsche Bank Trust Company Delaware, 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 April
20, 2005.
"Paying Agent" means any Person described as such in Section
7.04(b).
"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 CFUSA created by a TCC Financing
Originator pursuant to the VFC Conveyancing
Agreement or the Non-VFC
Conveyancing
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<PAGE>
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 created pursuant to this Agreement in favor of
the Trust; 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 CFUSA 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 created pursuant to this Agreement in favor of
the Trust;
(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 CFUSA
and the VFC Conveyancing Agreement or the
Non-VFC Conveyancing Agreement, as the
case may be, in the case of TCC Financing
Originators, and through CFUSA, 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 created
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
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(viii) Liens granted by the End-Users to the Financing
Originators 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.
"Pledged Revenues" means (i) all Scheduled Payments on the
Contracts,
including (without duplication) Scheduled
Payments on Defaulted 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 CFUSA 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 CFUSA 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;
and (vi) any Investment Earnings on the
investment of amounts credited to the
Collection Account and the Note
Distribution Account. Pledged Revenues
shall not include any amounts received
with respect to any Excluded Residual
Investment.
"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 and (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.
"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 Contract Pool
Principal Balance as of the related
Accounting Date.
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"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 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
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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, 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.
"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).
"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 as to Defaulted Contracts
(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.
"Required Cash Collateral Amount" means with respect to any
Payment
Date, an amount equal to the greater of (a)
the sum of (1) 7.75% 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 Contract
Pool Principal Balance as of the related
Accounting Date and (b) 24,100,196.94;
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.
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"Required Holders" means (i) prior to the payment in full of the
Class
A Notes, Class A-1 Noteholders, Class A-2
Noteholders, Class A-3 Noteholders,
and/or Class A-4 Noteholders holding Class
A-1 Notes, Class A-2 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,
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, 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, 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 other than a Defaulted
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 and, with
respect to Contracts that are Defaulted
Contracts, the Contract Principal
Balance plus Scheduled Payments due but not
yet received on such Defaulted
Contract as of the first day of the
Collection Period during which it became a
Defaulted Contract) less any subsequent
cash collections on such Defaulted
Contract.
"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.
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<PAGE>
"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 be incorporated
and shall identify by any reasonable means
or designation the applicable
Financing Originator with respect to each
Contract identified in such Schedule,
and 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 and incorporated therein
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 CFUSA, 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).
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"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.
"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 telephone switching or networking systems
operating software 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
Services, a
division of The McGraw Hill Companies, or
any successor thereto.
"Statutory Trust Statute" has the meaning specified in the
Trust
Agreement.
"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.
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"Substitute Contract" means any Contract conveyed, assigned and
transferred by the Depositor or CFUSA to
the Trust pursuant to Section 2.04.
"Substitute Contract Assets" means Contract Assets relating to
Substitute Contracts.
"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 CFUSA Contract, then such
Substitute Contract is itself an CFUSA
Contract; and
(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;
(3) with respect to any such Substitute Contract which is replacing
a
Replaced Contract of the type described in
clause (d) of the definition of
Substitution Event, the condition that the
Class A-1 Notes are no longer
outstanding; and
(4) the Substitute Contract is not more than 30 days
delinquent.
"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 February 1,
2005, among CFUSA and the Depositor,
as the same may be amended, supplemented,
restated or otherwise modified from
time to time.
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"Substitution Assignment Agreement" means, with respect to any
Substitute Contracts, the agreement between
CFUSA and the Depositor pursuant to
which CFUSA 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.
"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
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(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.
"TCC" means Capita Corporation, a Delaware corporation.
"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
CFUSA) in each case in the capacity of a
TCC Financing Originator party to the
VFC Conveyancing Agreement or the Non-VFC
Conveyancing Agreement, as the case
may be, with CFUSA.
"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 Contract Pool
Principal Balance as of the related
Accounting Date; provided, that the amount
referred to in clause (b) 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 Pooling 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 Substitute VFC Purchase
Agreement, the Trust Agreement, the
Administration Agreement, the Indenture,
the Cash Collateral Account Agreement,
the Note Depository Agreement and the
Underwriting 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.
"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:
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(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 CFUSA
to repurchase or substitute for such
Contracts under certain circumstances as
specified therein;
(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
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 February 1, 2005, 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.
"UCC" means the Uniform Commercial Code as enacted from time to
time
in the State of New York.
"Underwriting Agreement" means the Underwriting Agreement, dated
March
15, 2005 among J.P. Morgan Securities Inc.
and Wachovia Capital Markets, LLC
(each as an underwriter thereunder and as
representatives of the underwriters)
and the Depositor.
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"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 Contract Pool
Principal Balance as of the related
Accounting Date.
"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 Nonrecoverable 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.
"Vendor Assignment" means each assignment agreement pursuant to
