Exhibit 10.4
June 4, 2003
Class A-3a Rate Swap Transaction
CIT Equipment Collateral 2003-VT1, (the
"Trust") governed by the Amended and
Restated Trust Agreement, dated as of
May 1, 2003, between NCT Funding
Company, L.L.C. and The Bank of New York
(Delaware), as Delaware trustee, and
The Bank of New York, as owner trustee (in
that capacity, and any successor in that
capacity, the "Owner Trustee")
Ladies and Gentlemen:
The purpose of this letter agreement (this "Confirmation") is to
confirm the terms and conditions of the transaction entered into between us on
the Trade Date specified below (the "Transaction"). This letter agreement
constitutes a "Confirmation" as referred to in the Master Agreement specified
below.
The definitions and provisions contained in the 2000 ISDA Definitions
(as published by the International Swaps and Derivatives Association, Inc.) are
incorporated into this Confirmation (referred to herein as the "ISDA
Definitions"). For these purposes, all references in those Definitions to a
"Swap Transaction" shall be deemed to apply to the Transaction referred to
herein. In the event of any inconsistency between the ISDA Definitions and this
Confirmation, this Confirmation will govern. Each party represents and warrants
to the other that (i) it is duly authorized to enter into the Transaction and to
perform its obligations hereunder and (ii) the person executing and delivering
this Confirmation on behalf of the party is duly authorized to execute and
deliver it.
1. This Confirmation supplements, forms part of, and is subject to,
the Master Agreement dated as of June 4, 2003, as amended and supplemented from
time to time (the "Agreement"), between the Trust and Bank One, NA ("Bank One").
All provisions contained in the Agreement govern this Confirmation except as
expressly modified below.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
Notional Amount: For each Calculation Period, the aggregate outstanding
principal balance (the "Aggregate Principal Notes
Balance") of the CIT Equipment Collateral 2003-VT1 Class
A-3a Notes (the "Trust Securities") used as the basis
for calculating regularly scheduled Class A-3a Monthly
Interest Distributable Amounts thereunder for the
interest period thereunder scheduled to begin and end on
the first
and last days, respectively, of that Calculation Period,
as such amount is identified (subject to part 5b hereof)
to Bank One by the entity acting at the relevant time as
the servicer under the Pooling and Servicing Agreement
(the "Servicer"), at least two Business Days prior to
each Payment Date. The Notional Amount for the initial
Calculation Period is U.S.$218,000,000.00.
Trade Date: June 4, 2003.
Effective Date: June 12, 2003.
Termination Date: The earlier of the date on which the Notional Amount is
reduced to zero, and the Class A-3a Maturity Date,
subject to the Following Business Day Convention.
Fixed Amounts:
Fixed Rate Payer: The Trust.
Fixed Rate: 1.587% per annum.
Day Count Fraction: 30/360
Fixed Rate Payer
Payment Dates: The 20th day of each month in each year prior to and
including the Termination Date, commencing on June 20,
2003, subject to the Following Business Day Convention,
with no adjustment to Period End Dates.
Floating Amounts: For each Floating Rate Payer Payment Date, an amount
equal to the Class A-3a Monthly Interest Distributable
Amount scheduled under the Trust Securities to be due
thereunder (as determined by the Servicer under the
Pooling and Servicing Agreement) for the interest period
thereunder scheduled to correspond to the applicable
Calculation Period, as such amount is identified (subject
to part 5b hereof) to Bank One by the Servicer, at least
two Business Days prior to each Payment Date.
Floating Rate Payer: Bank One.
Floating Rate Payer
Payment Dates: The 20th day of each month in each year prior to and
including the Termination Date, commencing on June 20,
2003, subject to the Following Business Day Convention.
Business Days: New York.
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Calculation Agent: Bank One, except as otherwise provided in the Agreement.
3. Account Details
Account for Payments to the Trust:
JPMorgan Chase Bank
ABA No.: 000-000-000
Account No.: 507-947541
Account Name: NY-SFS Incoming Wire Acct
Ref: 10205620.1 - CITEC 2003-VT1 Collection Account
Account for Payments to Bank One:
Bank One, NA (Chicago, Illinois)
ABA # 000000000
Account # 00000000
Account Name: Bank One, NA (Chicago, Illinois)
Reference #: Global Derivatives
4. Offices
The Office of Bank One for the Transaction is Chicago, Illinois. The
Office of the Trust for the Transaction is its office at the address specified
for notices to it in the Schedule to the Agreement. The address for notices
under this Confirmation for Bank One, including delivery of the Servicer Report,
is as follows: Bank One, NA, 0 Xxxx Xxx Xxxxx - Xxxxx XX0-0000, Xxxxxxx, XX
00000, Attention: CMS Department Manager, Fax: 000-0000.
5. Other Terms
a. Each party has entered in the Transaction solely in reliance
on it own judgment. Neither party has any fiduciary obligation to the other
party relating to the Transaction. In addition, neither party has held itself
out as advising, or has held out any of its employees or agents as having the
authority to advise, the other party as to whether or not the other party should
enter into the Transaction, any subsequent actions relating to the Transaction
or any other matters relating to the Transaction. Neither party shall have any
responsibility or liability whatsoever in respect of any advice of this nature
given, or views expressed, by it or any such person to the other party relating
to the Transaction, whether or not such advice is given or such views are
expressed at the request of the other party.
b. The Pooling and Servicing Agreement sets forth the agreement
of CIT Financial USA, Inc., as servicer, with respect to its duties to
communicate to the Trust and Bank One information relating to the interest
scheduled to be paid by the Trust from time to time under the Trust Securities.
Neither party to the Transaction will have any responsibility to the other in
connection with any failure by the servicer to perform any of those duties or
any delay by it in doing so. Nothing in this provision shall affect the rights
of the parties hereto against the servicer for the failure by it to perform its
obligations under the Pooling and Servicing
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Agreement as set forth herein and nothing herein shall affect the obligations of
the Trust under Part 5(o) of the Schedule.
c. Capitalized terms used herein but not defined herein or in the
Agreement have the meaning given to them in the Transaction Documents.
THE AGREEMENT AND THIS CONFIRMATION REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR OR
CONTEMPORANEOUS WRITTEN OR ORAL AGREEMENTS BETWEEN THE PARTIES OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
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Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing the copy of this Confirmation enclosed for that
purpose and returning it to us or by sending to us a letter or telex
substantially similar to this letter, which letter or telex sets forth the
material terms of the Transaction to which this Confirmation relates and
indicates agreement to those terms.
Yours sincerely,
BANK ONE, NA,
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Confirmed as of the date
first above written:
CIT EQUIPMENT COLLATERAL 2003-VT1
By: THE BANK OF NEW YORK, not in its
individual capacity, but solely as
Owner Trustee on behalf of the Trust
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Assistant Vice President
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