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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 --
</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
-15-
<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;
-16-
<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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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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<PAGE>
"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 assign
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