CIT EQUIPMENT COLLATERAL 2000-1
OWNER TRUST
RECEIVABLE -BACKED NOTES
$288,583,600 6.723024% Receivable-Backed Notes, Class A-1
$144,291,800 Floating Rate Receivable-Backed Notes, Class A-2a
$187,959,055 Floating Rate Receivable-Backed Notes, Class A-3
$93,030,239 7.58% Receivable-Backed Notes, Class A-4
$11,391,458 7.54% Receivable-Backed Notes, Class B
$15,188,611 7.63% Receivable-Backed Notes, Class C
$18,985,762 8.09% Receivable-Backed Notes, Class D
UNDERWRITING AGREEMENT
May 3, 2000
FIRST UNION SECURITIES, INC.
as Representative for the Underwriters
One First Union Center, TW-9
301 South College Street
Charlotte, North Carolina 28288-0610
Dear Sirs:
1. Introductory. NCT Funding Company, L.L.C., a Delaware limited liability
company (the "Company"), proposes, subject to the terms and conditions stated
herein, to sell to the Underwriters named in Schedule A hereto (the
"Underwriters"), for whom First Union Securities, Inc. (hereinafter "First
Union") is acting as representative (the "Representative") an aggregate of
$288,583,600 principal amount of the 6.723024% Receivable-Backed Notes, Class
A-1, $144,291,800 principal amount of the Floating Rate Receivable-Backed Notes,
Class A-2a, $187,959,055 principal amount of the Floating Rate Receivable-Backed
Notes, Class A-3, $93,030,239 principal amount of the 7.58% Receivable-Backed
Notes, Class A-4, $11,391,458 principal amount of the 7.54% Receivable-Backed
Notes, Class B, $15,188,611 principal amount of the 7.63% Receivable-Backed
Notes, Class C, and $18,985,762 principal amount of the 8.09% Receivable-Backed
Notes, Class D (collectively, the "Offered Securities"), of the CIT Equipment
Collateral 2000-1 (the "Trust"). The Trust will be created pursuant to an
Amended and Restated Trust Agreement (the "Trust Agreement") dated as of April
1, 2000, between the Company and Allfirst Financial Center National Association,
as owner trustee (the "Owner Trustee"). The Offered Securities will be issued
under an Indenture (the "Indenture") dated as of April 1, 2000 between the Trust
and The Chase Manhattan Bank, as indenture trustee (the "Indenture Trustee").
The Trust is also issuing to the Company the sole Equity Certificate (the
"Certificate") evidencing the entire beneficial equity interest in the Trust.
Before the Time of Delivery (as defined below), the Company purchased
certain of the Contracts and certain interests in the equipment related to such
Contracts (the equipment
relating to any of the Contracts being referred to herein as the "Equipment")
from Newcourt Financial USA Inc. ("NFUSA") pursuant to the Sale and
Contribution Agreement, as amended, (the "VFC Purchase Agreement") dated as of
March 2, 1999 by and among NFUSA, AT&T and the Company and transferred the
Contracts to the Newcourt Equipment Trust--VFC Series (the "VFC Trust"). NFUSA
has previously originated or purchased such Contracts and related Equipment from
certain affiliates (the "TCC Financing Originators"). Each of the TCC Financing
Originators is a direct or indirect wholly-owned subsidiary of The CIT Group,
Inc., a Delaware corporation (hereinafter "CIT"). On or before the Time of
Delivery, the Company will reacquire the Contracts described in the preceding
sentence from the VFC Trust pursuant to a Release and Assignment (the "VFC
Assignment") dated as of May 10, 2000 between the VFC Trust and the Company. The
Company will also enter into a Substitute VFC Purchase and Sale Agreement (the
"Substitute VFC Purchase Agreement") dated as of April 1, 2000 between NFUSA and
the Company. In addition, on or before the Time of Delivery, NFUSA will purchase
certain other Contracts and Equipment from the TCC Financing Originators
pursuant to a Non-VFC Conveyancing Agreement (the "Non-VFC Conveyancing
Agreement") dated as of April 1, 2000 among the TCC Financing Originators and
NFUSA and the Company will purchase such Contracts from NFUSA pursuant to the
Non-VFC Purchase and Sale Agreement (the "Non-VFC Purchase Agreement") dated as
of April 1, 2000 between NFUSA and the Company.
The Trust will acquire a pool of equipment leases (each a "Lease Contract")
and installment sale contracts, promissory notes, loan and security agreements
and similar types of receivables (each a "Loan Contract", and collectively with
the Lease Contracts, the "Contracts"), the security interest of the Company in
Equipment securing the Loan Contracts, a security interest in the Company's
interest in the Equipment related to the Lease Contracts and certain other
rights pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), among the Company, the Trust, NFUSA and AT&T Capital
Corporation ("AT&T"), pursuant to which AT&T has agreed to service the
Contracts. In addition, one or more financial institutions (the "Cash Collateral
Depositors"), at the Time of Delivery, will enter into a loan agreement (the
"Loan Agreement") pursuant to which the Cash Collateral Depositors and the Trust
will deposit $41,768,679 (the "Initial Deposit") into the Cash Collateral
Account at the Time of Delivery. As used herein, the term "Related Documents"
means the Trust Agreement, the Offered Securities, the Indenture, the Pooling
and Servicing Agreement, the VFC Purchase Agreement, the VFC Assignment, the
Substitute VFC Purchase Agreement, the Non-VFC Conveyancing Agreement, the
Non-VFC Purchase Agreement, the Loan Agreement, and the Letter of
Representations among the Trust, the Indenture Trustee and The Depository Trust
Company.
Capitalized terms used herein without definition shall have the meanings
set forth in the Indenture or the Pooling and Servicing Agreement.
2. Representations and Warranties of the Company, NFUSA and AT&T. Each of the
Company, NFUSA and AT&T, jointly and severally, represents and warrants to, and
agrees with, each of the Underwriters that:
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(a) The Trust, the Company and the Offered Securities meet the requirements for
use of Form S-3 under the Securities Act of 1933, as amended (the "Act"); the
Company has filed with the Securities and Exchange Commission (the "Commission")
a registration statement on Form S-3 (No. 333-74847), including the related
preliminary prospectus or prospectuses, relating to the Offered Securities and
the offering thereof from time to time in accordance with Rule 415 under the
Act. Such registration statement, as amended, has been declared effective by the
Commission, and the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"). The Company will prepare and
file with the Commission a prospectus supplement (together with any later dated
prospectus supplement relating to the Offered Securities, the "Prospectus
Supplement") specifically relating to the Offered Securities pursuant to Rule
424 under the Act. The registration statement as amended at the date hereof is
hereinafter referred to as the "Registration Statement". The term "Base
Prospectus" means the prospectus dated July 19, 1999 relating to all offerings
of securities under the Registration Statement. The term "Prospectus" means the
Base Prospectus together with the Prospectus Supplement. The term "Preliminary
Prospectus" means any preliminary prospectus supplement specifically relating to
the Offered Securities, together with the Base Prospectus. As used herein, the
terms "Registration Statement", "Prospectus", "Base Prospectus" and "Preliminary
Prospectus" shall include in each case the documents, if any, incorporated by
reference therein. If the Company has filed an abbreviated registration
statement to register additional debt securities pursuant to Rule 462(b) under
the Act (the "Rule 462(b) Registration Statement"), then any reference herein to
the term "Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement. For purposes of this Agreement, all references to the
Registration Statement, any Preliminary Prospectus or the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
electronically transmitted copy thereof filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR"). All
references in this Agreement to financial statements and schedules and other
information that is "contained", "included" or "stated" in the Registration
Statement, any Preliminary Prospectus or the Prospectus (or other references of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information that is incorporated by reference in the
Registration Statement, any Preliminary Prospectus or the Prospectus, as the
case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to mean and include the filing of any document with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that is incorporated by reference in the Registration
Statement, such Preliminary Prospectus or the Prospectus, as the case may be;
(b) No stop order preventing or suspending the effectiveness or use of the
Registration Statement or the Prospectus has been issued by the Commission and
no proceeding for that purpose has been initiated or, to the knowledge of the
Company, threatened by the Commission. The Registration Statement conforms, and
the Prospectus and any further amendments to supplements to the Registration
Statement or the Prospectus will conform, in all material respects to the
requirements of the Act, and the rules and regulations of the Commission
thereunder, and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the
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circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with written information
furnished to the Company by any Underwriter specifically for use therein, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the following information in the Prospectus Supplement
furnished on behalf of such Underwriter: the concession and reallowance figures
appearing in the third paragraph under the caption "PLAN OF DISTRIBUTION" and
the information contained in the fifth paragraph under the caption "PLAN OF
DISTRIBUTION" (collectively, the "Provided Information"). In addition, the
statements in "Description of the Notes and Indenture" in the Prospectus, to the
extent they constitute a summary of the Notes, the Indenture and the Pooling and
Servicing Agreement, constitute a fair and accurate summary thereof.
(c) The documents incorporated or deemed to be incorporated by reference in the
Prospectus, when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in the Provided Information;
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change, or any
development involving a prospective change, in or affecting the Company, AT&T,
NFUSA, the TCC Financing Originators, CIT or the Trust (other than as
contemplated in the Registration Statement or the Prospectus) which would be
expected to have a material adverse effect on either (1) the ability of such
person to consummate the transactions contemplated by, or to perform its
respective obligations under, this Agreement or any of the Related Documents to
which it is a party or (2) the Contracts or the Trust Estate (as defined in the
Trust Agreement) considered in the aggregate;
(e) The Company has been duly formed and is validly existing as a limited
liability company in good standing under the laws of Delaware; AT&T has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of Delaware; NFUSA has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the Delaware; each
of the TCC Financing Originators has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation; each of the Company, NFUSA and AT&T has the power and
authority (corporate and/or other) to own its properties and conduct its
business to the extent described in the Prospectus and to
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perform its obligations under this Agreement and the Related Documents to
which it is a party; each of the TCC Financing Originators has the power and
authority (corporate and/or other) to own its properties and conduct its
business to the extent described in the Prospectus; and each of the Company,
NFUSA, AT&T and the TCC Financing Originators has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction;
(f) As of the Time of Delivery, each consent, approval, authorization or order
of, or filing with, any court or governmental agency or body that is required to
be obtained or made by the Company, NFUSA, AT&T, the Trust and each of the TCC
Financing Originators or their subsidiaries for the consummation of the
transactions contemplated by this Agreement and the Related Documents shall have
been obtained or made, except for such consents, approvals, authorizations,
registrations or qualifications as may be required under Blue Sky laws, except
for the UCC Filings, which shall be made promptly and in any event not later
than 10 calendar days after the Time of Delivery;
(g) Any taxes, fees and other governmental charges that are assessed and due
from the Company, NFUSA or AT&T in connection with the execution, delivery and
issuance of this Agreement and each Related Document shall have been paid or
will be paid at or prior to the Time of Delivery to the extent then due;
(h) This Agreement has been duly authorized, executed and delivered by the
Company, NFUSA and AT&T and constitutes a legal, valid and binding agreement of
the Company, NFUSA and AT&T enforceable in accordance with its terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors and (ii) general principles of equity,
whether enforcement is sought in a proceeding in equity or at law;
(i) The Offered Securities have been duly and validly authorized by the Trust
and, when issued pursuant to the Indenture and delivered pursuant to this
Agreement, will have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Trust, enforceable
in accordance with their terms, and entitled to the benefits provided by the
Indenture under which they are to be issued, which Indenture will be
substantially in the form filed as an exhibit to the Registration Statement; the
Indenture has been duly authorized and duly qualified under the Trust Indenture
Act and, assuming the due authorization, execution and delivery thereof by the
other parties thereto, the Indenture will constitute a valid and legally binding
instrument of the Trust, enforceable in accordance with its terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors and (ii) general principles of equity,
whether enforcement is sought in a proceeding in equity or at law; assuming
the due authorization, execution and delivery thereof by the other parties
thereto, each of the other Related Documents will constitute a valid and
legally binding obligation of the Company, NFUSA and AT&T, as applicable,
enforceable in
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accordance with its terms, except as enforceability may be limited by
(i) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the
rights of creditors and (ii) general principles of equity, whether enforcement
is sought in a proceeding in equity or at law; the execution, delivery
and performance by the Company, AT&T, NFUSA and the Trust of the
Related Documents to which they are a party and the consummation of the
transactions contemplated thereby have been duly and validly authorized by all
necessary action and proceedings required of them; and the Offered Securities,
the Indenture, the Pooling and Servicing Agreement, the Purchase Agreement, the
Trust Agreement, the Swap Agreement and the other Related Documents will conform
in all material respects to the descriptions thereof in the Prospectus;
(j) The issue of the Offered Securities by the Trust and sale of the Offered
Securities by the Company hereunder and the compliance by the Trust, the
Company, NFUSA and AT&T with all of the provisions of this Agreement, and the
compliance by the Trust, the Company, AT&T and NFUSA with all of the provisions
of all of the Related Documents to which they are parties and the consummation
of the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Trust, the Company,
NFUSA or AT&T is a party (except with respect to the notifications and consents
required under certain of the Contracts described in paragraph (m) in the
definition of Eligible Contract in Section 1.01 of the Pooling and Servicing
Agreement, which will be given or obtained no later than 10 days after the Time
of Delivery to the extent described in subsection 5(j) hereof or will otherwise
be repurchased as provided in the Purchase Agreement) or by which the Trust, the
Company, AT&T, NFUSA or the TCC Financing Originators or any of their
subsidiaries is bound or to which any of the property or assets of the Trust,
the Company, AT&T, NFUSA or the TCC Financing Originators is subject, nor will
such action result in any violation of the provisions of the Certificate of
Incorporation, Articles of Organization or By-laws of the Company, AT&T, NFUSA
or the TCC Financing Originators or the Trust or any statute or any order, rule
or regulation of any court or governmental agency or body having jurisdiction
over the Trust, the Company, NFUSA, AT&T or the TCC Financing Originators or any
of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or, governmental agency
or body is required to be obtained by any of them for the issue of the Offered
Securities by the Trust and the sale of the Offered Securities by the Company or
the consummation by the Trust, the Company, AT&T or NFUSA of the transactions
contemplated by this Agreement or the Related Documents, except the registration
under the Act of the Offered Securities, such is have been obtained under the
Trust Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under state or foreign securities or Blue
Sky laws in connection with the purchase and distribution of the Offered
Securities by the Underwriters;
(k) There are no legal or governmental proceedings to which the Company, AT&T,
NFUSA, the Trust or any of the TCC Financing Originators is a party or of which
any property of the Company, AT&T, NFUSA, the Trust or any of the TCC Financing
Originators is the subject (i) asserting the invalidity of this Agreement, the
Offered Securities or any other Related Documents, (ii) seeking to prevent the
issuance of the Offered Securities or the consummation of
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any of the transactions contemplated by this Agreement or any Related
Document, (iii) which is reasonably expected to materially and adversely affect
the performance by the Company, AT&T, NFUSA or the Trust, of their respective
obligations under, or the validity or enforceability of, this Agreement, the
Offered Securities or the other Related Documents, as applicable, (iv) seeking
to affect adversely the federal income tax attributes of the Offered Securities
described in the Prospectus or (v) which is reasonably expected to, individually
or in the aggregate, have a material adverse effect on the Company, AT&T, NFUSA,
the Trust or such Originator; and, to the best of the Company's, AT&T's, and
NFUSA's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(l) The Company, AT&T, NFUSA and each of the TCC Financing Originators are not
in violation of their respective Certificate of Incorporation, Articles of
Organization or By-laws and the Trust is not in violation of the Trust
Agreement, and neither the Company, NFUSA, AT&T, the Trust nor any of the TCC
Financing Originators is in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound;
(m) Each of the Company and the Trust is not and, after giving effect to the
offering and sale of the Offered Securities and other transaction contemplated
hereby, will not be, an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(n) As of the Cut-off Date, the computer tape of the Contracts made available to
the Representative by AT&T, NFUSA, the TCC Financing Originators and the Company
was accurate in all material respects;
(o) No selection procedures adverse to the holders of the Offered Securities
were utilized (i) in selecting those contracts transferred by (x) the TCC
Financing Originators to NFUSA, (y) from NFUSA to the Company and (z) from the
VFC Trust to the Company from those lease and loan contracts available therefor
or (ii) in selecting those contracts transferred by the Company to the Trust
from those lease and loan contracts available therefor;
(p) The Company or DFS-SPV L.P. owns the Equipment relating to the Contracts
free and clear of any lien, charge or encumbrance (other than Permitted Liens
with respect to the Company or Newcourt DFS Inc.'s lien which is fully
subordinated to the rights of the Trust's security interest in the Equipment)
and subject to the rights of the related obligors. Upon execution and delivery
of the VFC Assignment and the Non-VFC Purchase Agreement and the consummation of
the transactions thereunder, the Company will acquire the Contracts and the
related Equipment, free and clear of any lien, charge or encumbrance other than
Permitted Liens, and subject to the rights of the related obligors; and, upon
execution and delivery of the Pooling and Servicing Agreement, the Trust will
acquire the Contracts, free and clear of any lien, charge or encumbrance (other
than as contemplated by the Related Documents), but subject to the rights of the
related obligors;
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(q) As of the date hereof and as of the Time of Delivery, NFUSA is not obligated
to repurchase Contracts constituting a material portion of the Contract Pool
Principal Balance (as defined in the Indenture);
(r) As of the date hereof, the Company is wholly owned by NFUSA;
(s) In accordance with General Accepted Accounting Principles, as currently in
effect, each party to the VFC Purchase Agreement, the VFC Assignment, the
Substitute VFC Purchase Agreement, and the Non-VFC Purchase Agreement will treat
the transactions contemplated by such agreements as a sale of the Contracts and
interests in the related Equipment to the Company, and the Company will treat
the transactions contemplated by the Pooling and Servicing Agreement as a sale
of the Contracts to the Trust;
(t) AT&T represents and warrants that it has made available to the Underwriters
copies of CIT's 1999 consolidated financial statements for the year ended
December 31, 1999 and CIT's balance sheet and statements of income and retained
earnings for the period ended March 31, 2000 as filed with the SEC. Except as
set forth in or contemplated in the Registration Statement and the Prospectus or
as described by CIT or AT&T in SEC filings or press releases of general
distribution, copies of which have been delivered to you, there has been no
material adverse change in the condition (financial or otherwise) of AT&T since
March 31, 2000;
(u) Any taxes, fees and other governmental charges arising from the execution
and delivery by NFUSA, the Company or AT&T of this Agreement, the Pooling and
Servicing Agreement, the Trust Agreement and the Indenture and in connection
with the execution, delivery and issuance of the Offered Securities and with the
transfer of the Contracts and the Equipment, have been paid or will be paid by
the Company prior to the Closing Date; and
(v) KMPG LLP is an independent public accountant with respect to AT&T, NFUSA and
the Company within the meaning of the Act and the rules and regulations
promulgated thereunder.
All representations, warranties and agreements made herein shall be deemed
made is of the date hereof and as of the Time of Delivery; provided, however,
that to the extent any representation or warranty relates to a specific date,
such representation and warranty shall be deemed to continue to relate to such
date.
3. Sale and Delivery to the Underwriters; Closing. Subject to the terms and
conditions herein set forth, the Company agrees to cause the Trust to issue the
Offered Securities and the Company agrees to sell to each of the Underwriters,
severally and not jointly, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, the principal amount of Offered
Securities set forth opposite the name of such Underwriter, and at the purchase
price set forth, in Schedule A hereto.
The Offered Securities will be represented initially by one or more
definitive global certificates in registered form which will be deposited by or
on behalf of the Company with The Depository Trust Company ("DTC") or, on DTC's
behalf, with DTC's designated nominee or custodian and duly endorsed to DTC or
in blank by an effective endorsement. The
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Company will transfer the Offered Securities in book-entry form to the
Representative, for the account of each Underwriter, against payment by the
Representative (by or on behalf of each such Underwriter or otherwise) of the
purchase price therefor by wire transfer payable to the order of the Company in
federal (same day) funds (to such account or accounts as the Company shall
designate), by causing DTC to credit the Offered Securities to the account of
the Representative at DTC. The Company will cause the global certificates
referred to above to be made available to the Representative for checking at
least 24 hours prior to the Time of Delivery at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be 9:00 a.m., New York City time, on May 10, 2000 or
such other time and date as the Representative and the Company may agree upon in
writing. Such time and date are herein called the "Time of Delivery".
The documents to be delivered at Time of Delivery by or on behalf of the
parties hereto pursuant to Section 6 hereof, including the cross receipt for the
Offered Securities and any additional documents requested by the Underwriters
pursuant to Section 6(t) hereof, will be delivered at the offices of Schulte
Roth & Zabel LLP, 900 Third Avenue, New York, New York 10022 (the "Closing
Location"), and the Offered Securities will be delivered at the Designated
Office, all at the Time of Delivery. A meeting will be held at the Closing
Location at 10:00 a.m., New York time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
4. Offering by Underwriters. It is understood that upon the authorization
by the Representative of the release of the Offered Securities, the Underwriters
propose and agree to offer the Offered Securities for sale upon the terms and
conditions set forth in the Prospectus.
(a) Each of the Underwriters agrees that if it is a foreign broker or
dealer not eligible for membership in the National Association of Securities
Dealers, Inc. (the "NASD"), it will not effect any transaction in the Offered
Securities within the United States or induce or attempt to induce the purchase
of or sale of the Offered Securities within the United States, except that you
shall be permitted to make sales to the other Underwriters or to their United
States affiliates; provided that such sales are made in compliance with an
exemption of certain foreign brokers or dealers under Rule 15a-6 under the
Exchange Act, and in conformity with the Rules of Fair Practice of the NASD as
such rules apply to non-NASD brokers or dealers.
5. Certain Agreements of the Company, NFUSA and AT&T. The Company, NFUSA
and AT&T, jointly and severally, agree with each of the Underwriters that:
(a) The Company will prepare the Prospectus in a form approved by the
Representative (which approval will not be unreasonably withheld) and will file
such Prospectus pursuant to Rule 424(b) under the Act not later than the date
required by Rule 424; make no further amendment or any supplement to the
Registration Statement (including any post-effective
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amendment and any filing under Rule 462(b) under the Act) or Prospectus
prior to the Time of Delivery which shall be reasonably disapproved by the
Representative promptly after reasonable notice thereof; will advise the
Representative, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed and to
furnish you with copies thereof; will file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
(or behalf of the Trust) or the Trust with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Offered Securities; to advise the
Representative, promptly after it receives notice thereof of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
the Prospectus, of the suspension of the qualification of the Offered Securities
for offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of the Prospectus or suspending
any such qualification, will promptly use its best efforts to obtain the
withdrawal of such order.
(b) The Company will promptly from time to time take such action as the
Representative may reasonably request to qualify the Offered Securities for
offering and sale under the securities laws of such states as the Representative
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such states for as long as may be necessary to
complete the distribution of the Offered Securities, provided that in connection
therewith the Company or the Trust shall not be required to qualify as a foreign
corporation or entity or to file a general consent to service of process in any
state,
(c) The Company will furnish the Underwriters with copies of the Prospectus in
such quantities as the Underwriters may from time to time reasonably request,
and, if the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Offered Securities and if at such
time any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Act or the Exchange Act or the Trust Indenture Act,
will notify the Representative and promptly will file such document which will
correct such statement or omission and will prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as you may
from time to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Offered Securities at any time nine months
or more after the time of issue of the Prospectus, upon the Representative'
request will, at the Company's expense,
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prepare and deliver to such Underwriter as many copies as such Underwriter
may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act.
(d) The Company will cause the Trust to comply with the periodic reporting
requirements under the Exchange Act.
(e) During the period beginning from the date hereof and continuing to and
including the later of the Time of Delivery or the termination of the syndicate,
which shall in no event exceed 30 days from the Time of Delivery, neither the
Company, NFUSA, AT&T nor the TCC Financing Originators will offer, sell,
contract to sell or otherwise dispose of, except as provided hereunder, any
securities secured by or evidencing interests in receivables similar to the
Contracts.
(f) So long as any Offered Securities shall be outstanding, the Company will
deliver or cause to be delivered to the Representative the annual statement as
to compliance and the annual statement of a firm of independent public
accountants required to be delivered to the Indenture Trustee pursuant to
Sections 3.10 and 3.11 of the Pooling and Servicing Agreement, as soon as such
statements are furnished to the Company.
(g) The Company will furnish such information, execute such instruments and take
such actions, if any, as the Representative may reasonably request in connection
with the filing with the NASD relating to the Offered Securities should the
Representative determine that such filing is required or appropriate.
(h) So long as any of the Offered Securities are outstanding, the Company will
furnish or cause the Trust to furnish to the Representative as soon as
practicable (i) all documents required to be distributed to be holders of the
Offered Securities or filed with the Commission pursuant to the Exchange Act or
any order of the Commission thereunder, (ii) all monthly reports required to be
delivered to or filed with the Owner Trustee or the Indenture Trustee, (iii) all
notices or requests to or from the Rating Agencies with respect to the Offered
Securities that have been delivered to or received by the Company or the Trust
and (iv) from time to time, any other publicly available information concerning
the Company or the Trust filed with any government or regulatory authority, as
the Representative may reasonably request.
(i) At the Time of Delivery, the electronic ledger used by AT&T as a master
record of the Contracts conveyed by NFUSA to the Company, conveyed by the VFC
Trust to the Company and by the Company to the Trust shall be marked in such a
manner as shall clearly indicate the Trust's absolute ownership of the
Contracts, and from and after the Time to Delivery, neither the Company, AT&T,
NFUSA, the TCC Financing Originators nor any of their affiliates shall take any
action inconsistent with the Trust's ownership of such Contracts, other than as
permitted by the Pooling and Servicing Agreement.
(j) No later than 10 days after the Time of Delivery, NFUSA and AT&T will
deliver to the Representative a written certification that all notifications and
consents required by paragraph (m) in the definition of "Eligible Contract" in
Section 1.01 of the Pooling and Servicing Agreement have been given, or
obtained, as applicable, or if not given or obtained within such
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period, the related Contract has been repurchased pursuant to the terms of
the Purchase Agreement.
(k) To the extent, if any, that the rating provided with respect to the Offered
Securities by any of the Rating Agencies that initially rate the Offered
Securities is conditional upon the furnishing of documents or the taking of any
other reasonable actions by the Trust, the Company, the TCC Financing
Originators, NFUSA or AT&T, the Company, NFUSA, AT&T and the TCC Financing
Originators will use their best efforts to furnish, as soon as practicable, such
documents and take (or cause the taking of) any such other actions.
(l) The Company will cause the Trust to use the net proceeds received by it from
the issuance of the Offered Securities in the manner specified in the Prospectus
under the caption "USE OF PROCEEDS."
(m) The Company, NFUSA and AT&T will pay or cause to be paid the following: (i)
the reasonable fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Offered Securities under
the Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Related Document, the Blue Sky
Memoranda, closing documents (including compilations thereof) and any other
documents in connection with the offer, purchase, sale and delivery of the
Offered Securities; (iii) all expenses in connection with the qualification of
the Offered Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the reasonable fees and disbursements
of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and Legal Investment surveys; (iv) the filing fee
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with the review by the National Association of
Securities Dealers, Inc. of the Offered Securities; (v) any fees charged by the
Rating Agencies for rating the Offered Securities and the loans made pursuant to
the Loan Agreement; (vi) the up-front fees and expenses of the Indenture Trustee
and Owner Trustee and any agent of the Indenture Trustee and Owner Trustee and
the reasonable up-front fees and disbursements of counsel for the Indenture
Trustee and Owner Trustee in connection with the Indenture and the Offered
Securities; (vii) the costs and expenses of the Company, NFUSA and AT&T relating
to investor presentations on any "road show" undertaken in connection with the
marketing of' the offering, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with road show presentations with the prior
written approval of the Company, NFUSA and AT&T, reasonable travel and lodging
expenses of Representative and officers of the Company, NFUSA and AT&T and any
such consultants, and the cost of any aircraft chartered in connection with the
road show, with the prior written consent of the Company; and (viii) all other
reasonable costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section and Sections 7
and 8 hereof, their Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, securities transfer taxes on resale of any
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of the Offered Securities by them, and any advertising expenses connected with
any offers they may make.
6. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters hereunder shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the
Company, NFUSA and AT&T herein are, at and as of the Time of Delivery, true and
correct (except to the extent that any representation or warranty relates to a
specific date, in which case such representation or warranty shall be deemed to
continue to relate to such date), the condition that the Company, NFUSA and AT&T
shall have performed all of their respective obligations hereunder theretofore
to be performed, and the following additional conditions precedent:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the rules
and regulations under the Act and in accordance with Section 5(a) hereof; no
stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to the Representative's reasonable satisfaction;
(b) Winston & Strawn, counsel for the Underwriters, shall have furnished to the
Underwriters such opinion or opinions, dated the Time of Delivery, with respect
to certain securities law issues and other related matters as the Representative
may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to based upon such
matters;
(c) The Underwriters shall have received (i) from Schulte Roth & Zabel LLP,
opinions in respect of "true sale", "nonconsolidation" and the validity of the
Related Documents, in form and substance reasonably satisfactory to them or
letters authorizing the Underwriters to rely upon such opinions and (ii) letters
authorizing the Underwriters to rely upon any other opinion or opinions
delivered by counsel or certificates delivered by any party to any of the Rating
Agencies in connection with the transactions contemplated by this Agreement and
the Related Documents;
(d) Schulte Roth & Zabel LLP, counsel for the Company, shall have furnished to
the Underwriters their opinions, dated the Time of Delivery, in form and
substance as the opinions attached hereto as Exhibit A and reasonably
satisfactory to the Representative;
(e) The Underwriters shall have received from Schulte Roth & Zabel LLP opinions
in respect of tax matters in form and substance reasonably satisfactory to them;
(f) Thacher, Proffitt & Wood, counsel for the Indenture Trustee, shall have
furnished to the Underwriters their opinion, dated the Time of Delivery, in form
and substance satisfactory to the Representative, substantially to the effect
that:
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(i) The Indenture Trustee has been duly incorporated and is validly
existing and in good standing as a banking corporation under the laws of
the State of New York, with full power and authority to execute and deliver
the Related Documents to which it is a party and perform its obligations
thereunder;
(ii) No consent, approval or authorization of, or registration, declaration
or filing with, any federal or State of New York, court or governmental
agency or body is required for the execution, delivery or performance by
the Indenture Trustee of the Related Documents to which it is a party;
(iii) The execution and delivery of the Related Documents to which it is a
party by the Indenture Trustee and the performance by the Indenture Trustee
of the respective terms thereof do not conflict with or result in a
violation of (A) any federal or State of New York, law or regulation
governing the banking or trust powers of the Indenture Trustee and (B) the
charter documents or By-laws of the Indenture Trustee;
(iv) To the best of such counsel's knowledge, there are no actions
proceedings or investigations pending or threatened against or affecting
the Indenture Trustee before or by any court, arbitrator, administrative
agency or other governmental authority which, if adversely decided, would
materially and adversely affect the ability of the Indenture Trustee carry
out the transactions contemplated in the Related Documents to which it is a
party;
(v) The Related Documents to which it is a party have been duly authorized,
executed and delivered by the Indenture Trustee and, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitute the legal, valid and binding agreement of the Indenture Trustee,
enforceable against the Indenture Trustee in accordance with its terms,
except as enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar laws
affecting the enforcement of the rights of creditors and (ii) general
principles of equity, whether enforcement is sought in a proceeding in
equity or at law; and
(vi) The Offered Securities have been duly authenticated and delivered by
the Indenture Trustee in accordance with the Indenture.
(g) Morris, James, Hitchens & Williams LLP, counsel for the Owner Trustee, and
in-house counsel to the Owner Trustee shall have furnished to the Underwriters
their opinions, dated the Time of Delivery, in form and substance satisfactory
to the Representative, substantially to the effect that:
(i) The Owner Trustee has been duly chartered and is validly existing in
good standing as a national banking association under the laws of the
United States of America;
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(ii) The Owner Trustee has full corporate trust power and authority to
enter into and perform its obligations under the Trust Agreement and, on
behalf of the Trust, under the Related Documents to which the Trust is a
party;
(iii) The execution and delivery of the Trust Agreement and, on behalf of
the Trust, of the Related Document to which the Trust is a party, and the
performance by the Owner Trustee of its obligations under the Trust
Agreement, and the Related Documents to which the Trust is a party have
been duly authorized by all necessary corporate action of the Owner Trustee
and each has been duly executed and delivered by the Owner Trustee;
(iv) The Related Documents to which the Trust is a party constitute valid
and blinding agreements of the Owner Trustee, enforceable against the Owner
Trustee in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights and
general equity principles;
(v) The execution and delivery by the Owner Trustee of the Trust Agreement
and, on behalf of the Trust, of the Related Documents to which the Trust is
a party do not require any consent, approval or authorization of, or any
registration or filing with, any New York or federal governmental authority
having jurisdiction over the trust power of the Owner Trustee, other than
those consents, approvals or authorizations as have been obtained and the
filing of the Certificate of Trust with the Secretary of State of the State
of Delaware;
(vi) The Offered Securities have been duly authorized, executed and issued
by the Owner Trustee, on behalf of the Trust; and
(vii) The execution and delivery by the Owner Trustee of the Trust
Agreement and, on behalf of the Trust, the related Documents to which the
Trust is a party, and the performance by the Owner Trustee of its
obligations thereunder do not conflict with, result in breach or violation
of or constitute a default under, the Articles of Incorporation or By-laws
of the Owner Trustee.
(h) (i) On the date of the Prospectus, (ii) at 9:30 a.m., New York City time, on
the effective date of any post-effective amendment to the Registration Statement
filed subsequent to the date of this Agreement and (iii) at the Time of
Delivery, KMPG LLP shall have furnished to the Representative a letter or
letters, dated the respective dates of delivery thereof, in form and substance
satisfactory to the Representative, containing statements and information of the
type customarily included in accountants' "agreed-upon procedures letters" to
underwriters in transactions of this nature, including a statement by each to
the effect that KMPG LLP is an independent public accountant with respect to the
Trust, the Company, the TCC Financing Originators, NFUSA, AT&T and CIT, as
defined in the Act and the rules and regulations of the Commission thereunder;
(i) Subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall not have been any change,
or any development
-15-
involving a prospective change, in or affecting the Company, AT&T, NFUSA,
CIT, the TCC Financing Originators or the Trust (other than as contemplated in
the Registration Statement) which, in the reasonable judgment of the
Representative, would be expected to have an effect on either (a) the ability to
such person to consummate the transactions contemplated by, or to perform its
respective obligations under, this Agreement or any of the Related Documents to
which it is a party or (b) the Contracts or the Trust Estate, that, in either
case, is so material and adverse a to make it impractical or inadvisable to
proceed with the offering or the delivery of the Offered Securities as
contemplated by the Registration Statement and the Prospectus (and any
supplements thereto);
(j) [reserved];
(k) At the Time of Delivery, (i) the Class A-1 Notes shall be rated by each of
Standard & Poor's Ratings Services ("S&P"), Moody's Investors Service, Inc.
("Moody's") A-1+ and P-1, respectively; (ii) the Class A-2a Notes shall be rated
at least A-1 by S&P and P-1 by Moody's; (iii) the Class A-3 Notes and the Class
A-4 Notes shall be rated at least AAA by S&P and Aaa by Moody's; (iv) the Class
B Notes shall be rated at least "AA" by S&P and "Aa3" by Moody's; (v) the Class
C Notes shall be rated at least "A" by S&P and "A2" by Moody's; and (vi) the
Class D Notes shall be rated at least "BBB" by S&P and "Baa3" by Moody's;
(l) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities; or (iii) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or
war, if the effect of any such event specified in this clause (iii) in the
judgment of the Representative makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Offered Securities on the terms
and in the manner contemplated in the Prospectus;
(m) Each of the Company and NFUSA shall have delivered to the Representative a
certificate, dated the Time of Delivery, signed by its Chairman of the Board,
President, Executive Vice President, Senior Vice President, Vice President,
principal financial officer, principal accounting officer, or treasurer to the
effect that the signer of such certificate has examined this Agreement, the
Pooling and Servicing Agreement, the Indenture, the Swap Agreement, the Loan
Agreement, the Prospectus (and any supplements thereto), the Registration
Statement, and the other Related Documents and that:
(i) the representations and warranties of the Company or NFUSA, as
applicable, in this Agreement are true and correct at and as of the Time of
Delivery as if made on and as of the Time of Delivery (except to the extent
they expressly relate to an earlier date, in which case the representations
and warranties of such party are true and correct as of such earlier date
as if made at the Time of Delivery);
(ii) the Company or NFUSA, as applicable, has complied with all the
agreements and satisfied all the material conditions on its part to be
performed or satisfied under this Agreement at or prior to the Time of
Delivery;
-16-
(iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the signer, threatened;
(iv) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change,
or any development involving a prospective change, in or affecting the
Company, NFUSA, AT&T, the TCC Financing Originators or the Trust (other
than as contemplated in the Registration Statement) which would be expected
to have a material adverse effect on either (1) the ability of such person
to consummate the transactions contemplated by, or to perform its
respective obligations under, this Agreement or any of the Related
Documents to which it is a party or (2) the Contracts or the Trust Estate
(taken as a group);
(v) as of the Time of Delivery, no Contracts constituting a material
portion of the Contract Pool Principal Balance constitute Ineligible
Contracts; and
(vi) as to such other matters as the Representative may reasonably request.
(n) NFUSA shall have delivered to the Underwriters a certificate, dated the Time
of Delivery, signed by its Chairman of the Board, President, Executive Vice
President, Senior Vice President, Vice President, principal financial officer,
principal accounting officer, or treasurer to the effect that the signer of such
certificate has examined the Purchase Agreement and the VFC Purchase Agreement
and that:
(i) as of the Time of Delivery, no Contracts sold by NFUSA to the Company
constitutes an Ineligible Contract;
(ii) the representations and warranties of NFUSA in the Purchase Agreement
are true and correct at and as of the Time of Delivery as if made on and as
of the Time of Delivery (except to the extent they expressly relate to an
earlier date, in which case the representations and warranties of such
party are true and correct as of such certain date as if made at the Time
of Delivery); and
(iii) as to such other matters as the Representative may reasonably
request.
(o) The Company shall have delivered to the Representative a copy, certified by
an officer of the Company, of the Registration Statement as initially filed with
the Commission and of all amendments thereto (including all exhibits) and full
and complete sets of all written comments of the Commission or its staff and all
written responses thereto with respect to the Registration Statement;
(p) The Company, AT&T, NFUSA, the Owner Trustee, the Indenture Trustee and the
Trust shall have executed and delivered each Related Document and the Agreement
to which it is a party and the VFC Trust shall have executed and delivered the
VFC Assignment;
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(q) The Underwriters shall have received copies of all UCC searches as Winston &
Strawn shall reasonably request and within 10 days after the Time of Delivery,
copies of UCC Financing Statements and any other evidence of the taking of any
other action in all jurisdictions necessary to protect and perfect the ownership
and security interests of NFUSA, the Company, the Trust and the Indenture
Trustee in the Contracts and the Equipment;
(r) The Loan Agreement shall have been duly authorized, executed and delivered
by each party thereto; on or prior to the Time of Delivery, the Indenture
Trustee shall have established the Cash Collateral Account pursuant to Section
7.01 of the Pooling and Servicing Agreement and the Cash Collateral Depositors
and the Company shall have deposited the Initial Deposit in the Cash Collateral
Account; and all fees due and payable to the Cash Collateral Depositors as of
the Time of Delivery shall have been paid in full on or prior to the Time of
Delivery;
(s) The Underwriters shall have received from in-house counsel for each of the
Cash Collateral Depositors, and any U.S. branch thereof, if any, through which
such Cash Collateral Depositor is performing its obligations under the Loan
Agreement, reasonably acceptable to the Representative, an opinion, dated the
Time of Delivery, in form and substance reasonably satisfactory to the
Representative, substantially to the effect that:
(i) each of such Cash Collateral Depositor and U.S. branch, if applicable,
is duly organized and validly existing under the laws of its country or
state of organization and has the power and authority under the laws of its
country or state of organization to execute, deliver, and perform its
obligations under the Loan Agreement;
(ii) the Loan Agreement has been duly authorized and, when executed and
delivered by such Cash Collateral Depositor, or such Cash Collateral
Depositor through a U.S. branch thereof, if applicable, will constitute the
valid and legally binding obligation of such Cash Collateral Depositor
enforceable in accordance with its terms, subject, as to enforcement, to
(A) bankruptcy, insolvency, reorganization, liquidation, readjustment of
debt and other laws and equitable principles relating to or affecting the
enforcement of creditors' rights generally as they may be applied in the
event of the bankruptcy, insolvency, reorganization, liquidation or
readjustment of debt of, or the appointment of a receiver with respect to
the property of, or a similar event applicable to, the Cash Collateral
Depositor and U.S. branch, if applicable, and (B) the effect of any
moratorium or similar occurrence affecting the Cash Collateral Depositor
and U.S. branch, if applicable;
(iii) the Loan Agreement is enforceable in accordance with its terms
against such Cash Collateral Depositor and U.S. branch, if applicable,
subject, as to enforcement, to (A) bankruptcy, insolvency, reorganization,
liquidation, readjustment of debt and other laws and equitable principles
relating to or affecting the enforcement of creditors' rights generally as
they may be applied in the event of the bankruptcy, insolvency,
reorganization, liquidation or readjustment of debt of, or the appointment
of a receiver with respect to the property of, or a similar event
applicable to, such Cash Collateral
-18-
Depositor and U.S. branch, if applicable, and (B) the effect of any
moratorium or similar occurrence affecting such Cash Collateral Depositor
or U.S. branch, if applicable;
(iv) no authorization, consent or approval of or by any governmental
authority in its country of organization or in the United States, as
applicable, is necessary for the execution, delivery and performance by
such Cash Collateral Depositor or U.S. branch, if applicable, of the Loan
Agreement, except such authorizations, consents and approvals as are in
full force and effect;
(v) if the Cash Collateral Depositor is organized outside of the United
States, the choice of the law of the State of New York to govern the Loan
Agreement is valid under the laws of its country of organization, and a
court in such country would uphold such choice of law in a suit, action or
other proceeding on the Loan Agreement brought in a court in such country;
and
(vi) if the Cash Collateral Depositor is organized outside of the United
States, any judgment for a fixed and definite sum of money rendered by the
courts of the State of New York or the United States of America located in
the State of New York, in respect of any suit, action or other proceeding
for the enforcement of the Loan Agreement will, upon request, be declared
valid and enforceable against such Cash Collateral Depositor by the
competent courts of its country of organization, without reexamination of
the matters adjudicated upon, if such judgment is not subject to appeal and
is enforceable according to the laws of the State of New York or United
States Federal law; and
(t) The Underwriters and Winston & Strawn shall have received such information,
certificates and documents as the Underwriters or Winston & Strawn may
reasonably request.
7. Indemnification and Contribution. The Company, NFUSA and AT&T, jointly and
severally, will indemnify and hold harmless each Underwriter, its partners,
directors and officers and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Act, from and against any and all
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or any such controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein in the light of the circumstances under which they were
made not misleading, and will promptly reimburse each Underwriter, their
respective directors and officers and each person who controls the Underwriter
within the meaning of Section 15 of the Act, for any legal or other expenses
reasonably incurred by any Underwriter and such other indemnified persons in
connection with investigating, preparing or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
(i) that the Company, NFUSA and AT&T shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in the
-19-
Registration Statement or the Prospectus in reliance upon and in conformity
with the Provided Information and provided further that such Provided
Information was not based upon Company-Provided Information (as defined below);
(ii) such indemnity with regard to any related prospectus shall not inure to the
benefit of each Underwriter (or any person controlling each Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Offered Securities if such person did not receive a copy of the Prospectus
(or, in the event it is amended or supplement, such Prospectus as amended or
supplemented) at or prior to the confirmation of the sale of such Offered
Securities to such person if such Prospectus (or, in the event it is amended or
supplemented, such Prospectus as amended or supplemented) was timely forwarded
to each Underwriter as required by this Agreement; and (iii) the Company, NFUSA
and AT&T shall not, in connection with any one such action or separate but
substantially similar or related transactions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys for all
such Underwriters, which firm shall be designated in accordance with Section
7(c) hereof. The foregoing indemnity agreement is in addition to any liability
which each of the Company, NFUSA and AT&T may otherwise have to the Underwriters
or any person who controls such Underwriter.
(a) Each Underwriter will severally and not jointly indemnify and hold harmless
the Company, NFUSA and AT&T, their respective directors and officers and each
person, if any who controls the Company, NFUSA or AT&T, as the case may be,
within the meaning of Section 15 of the Act, against any losses, claims, damages
or liabilities to which the Company, NFUSA or AT&T may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein in the light of the circumstances under
which they were made not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement or the Prospectus in
reliance upon and in conformity with the Provided Information and provided that
such Provided Information was not based upon Company--Provided Information (as
defined herein); and will reimburse the Company, NFUSA and AT&T, their
respective directors and officers and each person who controls the Company,
NFUSA or AT&T within the meaning of Section 15 of the Act, for any legal or
other expenses reasonably incurred by the Company, NFUSA, AT&T and such other
indemnified persons in connection with investigating, preparing or defending any
such loss, claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which may
otherwise have to each of the Company, NFUSA and AT&T as such expenses are
incurred.
(b) Promptly after receipt by an indemnified party under subsection (a) or (b)
above of notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying party
under such subsection, notify the indemnifying party, in writing of the claim
or commencement thereof; but the omission so to notify the indemnifying
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pary shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who may
be counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof
and after acceptance by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised in writing (with a copy to the indemnifying party) by counsel that
representation of such indemnified party and the indemnifying party is
inappropriate under applicable standards of professional conduct due to actual
or potential differing interests between them, the indemnified party or parties
shall have the right to select separate counsel to defend such action on behalf
of such indemnified party or parties. It is understood that the indemnifying
party shall, in connection with any such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys together with appropriate local
counsel at any time from all indemnified parties not having actual or potential
differing interests with any other indemnified party. The indemnifying party
will not be liable for any settlement entered into without its consent and will
not be liable to such indemnified party under this Section 7 for any legal or
other expenses incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence, (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and provided that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii).
(c) Each Underwriter severally agrees, assuming all Company-Provided Information
(defined below) is accurate and complete in all material respects, to indemnify
and hold harmless the Company, NFUSA and AT&T, and their respective directors,
officers and controlling persons within the meaning of Section 15 of the Act,
against any and all losses, claims, damages or liabilities, joint or several, to
which they may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement of a material fact contained in the
Derived Information provided by such Underwriter, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by him, her or it in connection with investigating or defending or
preparing to defend any such loss,
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claim, damage, liability or action as such expenses are incurred, provided
that, in no event shall any Underwriter be responsible under this clause (d) for
any amount in excess of the underwriting discount applicable to the Offered
Securities purchased by such Underwriter hereunder. Each Underwriter's
obligations under this Section 7(d) shall be in addition to any liability which
each Underwriter may otherwise have to the Company, NFUSA or AT&T.
(d) Each of the Company, NFUSA and AT&T agrees to indemnify and hold harmless
the Underwriters, each of the Underwriters' officers and directors and each
person who controls the Underwriters within the meaning of Section 15 of the Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement of a material fact contained in the
Company-Provided Information provided by the Company, NFUSA and AT&T, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by him, her or it in connection with
investigating or defending or preparing to defend any such loss, claim, damage,
liability or action as such expenses are incurred. The Company's, NFUSA's and
AT&T's obligation under this Section 7(e) shall be in addition to any liability
which they may otherwise have to the Underwriters.
The procedures set forth in Section 7(c) shall be equally applicable to
Sections 7(d) and 7(e).
(e) For purposes of this Section 7, the term "Derived Information" means such
portion, if any, of the information delivered to the Company, NFUSA or AT&T by
the Underwriters for filing with the Commission that:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference;
(ii) does not constitute Company-Provided Information; and
(iii) is of the type of information defined as Collateral Term Sheets,
Structural Term Sheets or Computational Materials (as such terms are
interpreted in the No-Action Letters).
"Company-Provided Information" means any computer tape furnished to the
Underwriters by the Company, AT&T or NFUSA concerning the Contracts or any other
information furnished by the Company, AT&T or NFUSA to the Underwriters that is
relied on or is reasonably anticipated by the parties hereto to be relied on by
the Underwriters in the course of the Underwriters' preparation of its Derived
Information or the Provided Information.
The terms "Collateral Term Sheet" and "Structural Term Sheet"
shall have the respective meanings assigned to them in the February 13, 1995
letter (the "PSA Letter") of Cleary, Gottlieb, Steen & Hamilton on behalf of the
Public Securities Association (which letter,
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and the SEC staff's response thereto, were publicly available February 17,
1995). The term "Collateral Term Sheet" as used herein includes any subsequent
Collateral Term Sheet that reflects a substantive change in the information
presented. The term "Computational Materials" has the meaning assigned to it in
the May 17, 1994 letter (the "Kidder Letter" and together with the PSA Letter,
the "No-Action Letters") of Brown & Wood on behalf of Kidder, Peabody & Co.,
Inc, (which letter, and the SEC staff's response thereto, were publicly
available May 20, 1994).
(f) If the indemnification provided for in this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company, NFUSA and AT&T on the one hand and the
Underwriters on the other from the offering of the Offered Securities. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company, NFUSA and AT&T on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company, NFUSA and AT&T on
the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Offered Securities
purchased under this Agreement (before deducting expenses) received by the
Company, NFUSA and AT&T bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Offered Securities purchased
under this Agreement, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, NFUSA or AT&T on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent it such statement or omission.
The Company, NFUSA, AT&T and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subsection (g) were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to above in this subsection (g).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this subsection (g) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating, preparing or defending any such action or claim. Notwithstanding
the provisions of this subsection (g), no Underwriter shall be required to
contribute any amount in excess of the underwriting discount as set forth on the
cover page of the Prospectus paid to the respective Underwriter. No person
guilty of fraudulent misrepresentation (within the meaning of
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Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (g) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(g) The obligations of the Company, NFUSA and AT&T under this Section 7 shall be
in addition to any liability which the Company, NFUSA and AT&T may otherwise
have and shall extend, upon the same term and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 7 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company,
NFUSA or AT&T who has signed the Registration Statement and to each person, if
any, who controls the Company, NFUSA or AT&T within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in their
obligations to purchase Offered Securities hereunder at the Time of Delivery and
the aggregate principal amount of Offered Securities (determined on a class by
class basis) that such defaulting Underwriter or Underwriters agreed but failed
to purchase does not exceed 10% of the total principal amount of Offered
Securities (determined on a class by class basis) that the Underwriters are
obligated to purchase at such Time of Delivery, the Representative may make
arrangements satisfactory to the Company for the purchase of the Offered
Securities (determined on a class by class basis) by other persons, including
any of the Underwriters, but if no such arrangements are made by such Time of
Delivery, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities (determined on a class by class basis) that such defaulting
Underwriter or Underwriters agreed but failed to purchase on such Time of
Delivery. If any Underwriter or Underwriters so default and the aggregate
principal amount of Offered Securities (determined on a class by class basis)
with respect to which such default or defaults occur exceed 10% of the total
principal amount of Offered Securities (determined on a class by class basis
that the Underwriters are obligated to purchase at such Time of Delivery and
arrangements satisfactory to the Representative and the Company for the purchase
of such Offered Securities by other persons are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company, except as provided, in Section 9
hereof. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
In the event of any such default which does not result in a termination of
this Agreement, any of the non-defaulting Underwriters or the Company shall have
the right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required change in the Registration Statement or Prospectus
or in any other documents or arrangements.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warrants and other statements of the
Company, NFUSA, AT&T and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
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investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
NFUSA or AT&T, or any officer or director or controlling person of the Company,
NFUSA or AT&T, and shall survive delivery of and payment for the Offered
Securities.
If this Agreement is terminated pursuant to Section 8 or if for any reason
the purchase of the Offered Securities by the Underwriters is not consummated,
the Company shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 5(n), and the respective obligations of the Company
and the Underwriters pursuant to Section 7 shall remain in effect, and if any
Offered Securities have been purchased hereunder, the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8, the Company will reimburse the Underwriters
through the Representative for all out-of-pocket expenses approved in writing by
the Representative, including reasonable fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Offered Securities, but the Company shall then be under
no further liability to any Underwriter except as provided in Sections 5(m) and
7 hereof.
10. Notices. All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to you as the Representative in care of First Union
Securities, Inc., One First Union Center, TW-9, 301 South College Street,
Charlotte, North Carolina 28288-0610, Attention: Investment Banking
Department--- Transactions Advisory Group; if to the Company shall be delivered
or sent by mail, telex or facsimile transmission to the address of the Company
set forth in the Registration Statement, Attention: Secretary; and if to NFUSA,
the Company or AT&T shall be delivered or sent by mail, telex or facsimile
transmission to The CIT Group, 650 CIT Drive, Livingston, New Jersey 07039,
Attention: Securitization -- Treasury; provided, however, that any notice to an
Underwriter pursuant to Section 7(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representative upon request. Any
such statements, requests, notices or agreements shall take effect at the time
of receipt thereof.
11. Termination.
(a) This Agreement may be terminated by you in your absolute discretion at any
time upon the giving of notice at any time prior to the Closing Date: (i) if
there has been any material adverse change in the condition, financial or
otherwise, of the Company, NFUSA or AT&T, or in the earnings, business affairs
or business prospects of the Company, NFUSA or AT&T, whether or not arising in
the ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your reasonable
judgment, impracticable to market the Offered Securities or enforce contracts
for the sale of the Offered Securities, or (iii) if trading generally on either
the American Stock Exchange or the New York Stock Exchange has been
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suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
exchanges or by order of the Commission or any other governmental authority, or
(iv) if a banking moratorium has been declared by either federal or New York
authorities. In the event of any such termination, no party will have any
liability to any other party hereto, except as otherwise provided in Section 7
hereof.
(b) This Agreement may not be terminated by the Company, NFUSA or AT&T without
the written consent of the Underwriters, except in accordance with law.
(c) Notwithstanding anything herein to the contrary, in the event the Company,
NFUSA or AT&T does not perform any obligation under this Agreement or any
representation and warranty hereunder is incomplete or inaccurate in any
material respect, this Agreement and all of the Underwriters' obligations
hereunder may be immediately cancelled by the Underwriters by notice thereof to
the Company, NFUSA or AT&T. Any such cancellation shall be without liability of
any party to any other party except that the provisions of Sections 7 and 9
hereof shall survive any such cancellation.
12. Successors. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, NFUSA and AT&T and, to the extent
provided in Sections 7 and 8 hereof, the officers and directors of the Company,
NFUSA and AT&T and each person who controls the Company, NFUSA and AT&T or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Offered Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
13. Representation of Underwriters. In all dealings hereunder, you shall act on
behalf of each of the Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by you.
14. Time of the Essence. Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
15. Counterparts. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
16. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
The Company, NFUSA and AT&T hereby submit to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.
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17. Miscellaneous. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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If the foregoing is in accordance with your understanding, please sign and
return to us one for each of the Company, NFUSA and AT&T and for each of the
Underwriters plus one for each counsel counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof shall constitute a binding agreement between each of the
Underwriters, NFUSA, AT&T, and the Company.
Very truly yours,
NCT FUNDING COMPANY, L.L.C.
By: /s/ Glenn Votek
---------------------------------------
Name: Glenn Votek
Title: Executive Vice President
and Treasurer
NEWCOURT FINANCIAL USA INC.
By: /s/ Glenn Votek
---------------------------------------
Name: Glenn Votek
Title: Executive Vice President
and Treasurer
AT&T CAPITAL CORPORATION
By: /s/ Glenn Votek
---------------------------------------
Name: Glenn Votek
Title: Executive Vice President
and Treasurer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the date
first above written.
- --------------------------------------------
AS REPRESENTATIVE OF THE UNDERWRITERS
By: FIRST UNION SECURITIES, INC.
By: /s/ Mark T. Adamson
----------------------------------
Authorized Representative -- Vice President
[Signature Page to Underwriting Agreement]
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SCHEDULE A
Total Aggregate Principal Amount of
Underwriter Offered Securities to be Purchased
- ----------- ----------------------------------
Class A-1 Class A-3 Class A-4
--------- --------- ---------
First Union Securities, Inc................... $86,575,080 $56,387,717 $27,909,072
Banc One Capital Markets, Inc................. 63,488,392 41,350,992 20,466,653
Credit Suisse First Boston Corporation........ 75,031,736 48,869,354 24,187,862
J. P. Morgan Securities Inc................... 63,488,392 41,350,992 20,466,653
Total $288,583,600 $187,959,055 $93,030,239
Total Aggregate Principal Amount of
Underwriter Offered Securities to be Purchased
- ----------- ----------------------------------
Class A-2a Class B Class C Class D
---------- --------- --------- ---------
First Union Securities, Inc.................... $144,291,800 $11,391,458 $15,188,611 $18,985,762
Total
Purchase Price to Public
(as a percentage of
the principal amount of
each class of Offered Securities)*
Class A-1: 0.100%
Class A-2a: 0.100%
Class A-3: 0.200%
Class A-4: 0.240%
Class B: 0.250%
Class C: 0.300%
Class D: 0.400%
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