CIT EQUIPMENT COLLATERAL 2001-1
OWNER TRUST
RECEIVABLE -BACKED NOTES
$ 180,000,000 5.0325% RECEIVABLE-BACKED NOTES, CLASS A-1
$ 254,000,000 5.02% RECEIVABLE-BACKED NOTES, CLASS A-2
$ 233,000,000 5.23% RECEIVABLE-BACKED NOTES, CLASS A-3
$ 129,328,157 FLOATING RATE RECEIVABLE-BACKED NOTES, CLASS A-4
$ 12,707,364 5.31% RECEIVABLE-BACKED NOTES, CLASS B
$ 16,943,152 5.53% RECEIVABLE-BACKED NOTES, CLASS C
$ 21,178,941 6.11% RECEIVABLE-BACKED NOTES, CLASS D
UNDERWRITING AGREEMENT
March 2, 2001
Banc One Capital Markets, Inc.
as Representative for the Underwriters
1 Bank One Plaza, Mail Suite IL1-0596
Chicago, IL 60670
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 Banc One Capital Markets, Inc. (hereinafter "BANC
ONE") is acting as representative (the "REPRESENTATIVE"), an aggregate of
$180,000,000 principal amount of the 5.0325% Receivable-Backed Notes, Class A-1,
$254,000,000 principal amount of the 5.02% Receivable-Backed Notes, Class A-2,
$233,000,000 principal amount of the 5.23% Receivable-Backed Notes, Class A-3,
$129,328,157 principal amount of the Floating Rate Receivable-Backed Notes,
Class A-4, $12,707,364 principal amount of the 5.31% Receivable-Backed Notes,
Class B, $16,943,152 principal amount of the 5.53% Receivable-Backed Notes,
Class C, and $21,178,941 principal amount of the 6.11% Receivable-Backed Notes,
Class D (collectively, the "OFFERED SECURITIES"), of the CIT Equipment
Collateral 2001-1 (the "Trust"). The Trust will be created pursuant to an
Amended and Restated Trust Agreement (the "TRUST AGREEMENT") dated as of
February 1, 2001, 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 February 1, 2001
between the Trust and The Chase Manhattan Bank, as indenture trustee (the
"INDENTURE TRUSTEE"). The Class A-4 Notes will also have the benefit of an
interest rate swap pursuant to an ISDA Master Agreement dated as of March 9,
2001, together with the related schedule and confirmations (the "Swap
Agreement") between the Trust and Westdeutsche Landesbank Girozentrale
("WestLB") New York Branch, as swap counterparty (the "Swap Counterparty").
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 CIT Financial USA, Inc. (formerly known as
Newcourt Financial USA Inc. "CFUSA") pursuant to the Amended and Restated Sale
and Contribution Agreement, dated as of March 2, 1999, as amended and restated
as of June 29, 2000 (the "VFC PURCHASE AGREEMENT") by and among CFUSA, AT&T
Capital Corporation (now known as Capita Corporation, "CAPITA") and the Company
and transferred the Contracts to the CIT Equipment Trust-VFC Series (the "VFC
TRUST"). CFUSA 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 March 9, 2001 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 February 1, 2001
between CFUSA and the Company. In addition, on or before the Time of Delivery,
CFUSA 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 February 1, 2001 among the TCC Financing
Originators and CFUSA and the Company will purchase such Contracts from CFUSA
pursuant to the Non-VFC Purchase and Sale Agreement (the "NON-VFC PURCHASE
AGREEMENT") dated as of February 1, 2001 between CFUSA 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,
if any, 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,
CFUSA and pursuant to which CFUSA 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
$61,418,927 (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, the Swap Agreement and the Letter of
Representations among the Trust, the Indenture Trustee and The Depository Trust
Company.
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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 and CFUSA. Each of
the Company and CFUSA, jointly and severally, represents and warrants to, and
agrees with, each of the Underwriters that:
(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. 333-53688),
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 February 5,
2001 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 Act or 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
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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 or 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 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 table after
the second paragraph under the caption "PLAN OF DISTRIBUTION" and the
information contained in the fourth 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, CFUSA,
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; CFUSA has
been duly incorporated and is validly existing as a corporation in good standing
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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 and
CFUSA 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
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, CFUSA 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 or in good standing 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, CFUSA, 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 and
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) Reserved;
(h) This Agreement has been duly authorized, executed and delivered by
the Company and CFUSA and constitutes a legal, valid and binding agreement of
the Company and CFUSA 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 and CFUSA, as applicable, enforceable
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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; the execution, delivery and performance by the Company, CFUSA
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 and Sale Agreements, the Trust 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 and CFUSA with all of the provisions of this Agreement, and the
compliance by the Trust, the Company and CFUSA 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 or CFUSA 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 and Sale Agreements) or by which the Trust, the Company, CFUSA
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, CFUSA 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,
By-laws or Operating Agreements of the Company, CFUSA 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, CFUSA 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 or CFUSA of the transactions contemplated by this Agreement or the
Related Documents, except the registration under the Act of the Offered
Securities, such as 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, CFUSA, the Trust or any of the TCC Financing Originators is a party or
of which any property of the Company, CFUSA, 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 any of
the transactions contemplated by this Agreement or any Related Document, (iii)
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which is reasonably expected to materially and adversely affect the performance
by the Company, CFUSA 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, CFUSA, the Trust or
such Originator; and, to the best of the Company's and CFUSA's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(l) The Company, CFUSA and each of the TCC Financing Originators are
not in violation of their respective Certificate of Incorporation, Articles of
Organization, By-laws, Operating Agreements or other constituent agreements and
the Trust is not in violation of the Trust Agreement, and neither the Company,
CFUSA, 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 transactions
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 CFUSA, 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 CFUSA, (y) from CFUSA 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 and at the Time of Delivery the
Company will own an interest in 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 an interest
in 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, CFUSA 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 CFUSA;
(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) CFUSA 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 unaudited balance sheet and statements of
income and retained earnings for the periods ended June 30, 2000 and September
30, 2000 as filed with the SEC on form 10-Q and December 31, 2000 as filed with
the SEC on form 8-K. Except as set forth in or contemplated in the Registration
Statement and the Prospectus or as described by CIT 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 CIT since December 31, 2000;
(u) Any taxes, fees and other governmental charges arising from the
execution and delivery by CFUSA or the Company 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) KPMG LLP is an independent public accountant with respect to CFUSA
and the Company within the meaning of the Act and the rules and regulations
promulgated thereunder.
(w) As of the Closing Date, each of the respective representations and
warranties of the Company, CFUSA, the Trust and each of the TCC Financing
Originators set forth in the Related Documents will be true and correct, and the
Underwriters may rely on such representations and warranties as if they were set
forth herein in full.
All representations, warranties and agreements made herein shall be
deemed made as 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,
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severally and not jointly, to purchase from the Company, the Offered Securities
at the purchase price for each class of Offered Securities equal to the product
of (x) the principal balance of such class of Offered Securities purchased by an
Underwriter and (y) the purchase price percent for such class of Offered
Securities, as 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 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 March 9, 2001 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(v) 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 3, "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.
5. Certain Agreements of the Company and CFUSA. The Company and CFUSA,
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 amendment and any filing
under Rule 462(b) under the Act) or Prospectus prior to the Time of Delivery
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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, 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.
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(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, CFUSA 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 9.04 and 9.05 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 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 CFUSA as a
master record of the Contracts conveyed by CFUSA 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, CFUSA,
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) Reserved.
(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 or CFUSA, the Company, CFUSA 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.
-11-
(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 and CFUSA 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 and CFUSA 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 and CFUSA, reasonable travel and lodging
expenses of Representative and officers of the Company and CFUSA 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
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 and CFUSA 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 and CFUSA shall
have performed all of their respective obligations hereunder theretofore to be
performed, and the following additional conditions precedent:
-12-
(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) Stroock & Stroock & Lavan LLP, 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 the Representative;
(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:
(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
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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 to 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;
(ii) The Owner Trustee has full corporate trust power and
authority to enter into and perform its obligations under the Trust
Agreement;
(iii) The execution and delivery of the Trust Agreement, and
the performance by the Owner Trustee of its obligations under the
Trust Agreement, 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 Trust Agreement constitutes a valid and binding
agreement of the Owner Trustee, enforceable against the Owner Trustee
in accordance with its 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;
-14-
(v) The execution and delivery by the Owner Trustee of the
Trust Agreement do not require any consent, approval or authorization
of, or any registration or filing with, any Delaware 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
Association 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, KPMG 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 KPMG LLP is an independent public
accountant with respect to the Trust, the Company, the TCC Financing
Originators, CFUSA 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 involving a prospective change, in or
affecting the Company, CFUSA, 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) The Central Legal Department of WestLB, counsel for the Swap
Counterparty, shall have furnished to the Underwriters their opinion, dated the
Time of Delivery, in form and substance satisfactory to the Representative;
(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") and Fitch, Inc. ("FITCH") "A-1+", "P-1" and "F-1+"
respectively; (ii) the Class A-2 Notes, the Class A-3 Notes and the Class A-4
-15-
Notes shall be rated at least "AAA" by S&P, "Aaa" by Moody's and "AAA" by Fitch;
(iii) the Class B Notes shall be rated at least "AA" by S&P, "Aa3" by Moody's
and "AA" by Fitch; (iv) the Class C Notes shall be rated at least "A" by S&P,
"A2" by Moody's and "A" by Fitch; and (v) the Class D Notes shall be rated at
least "BBB" by S&P, "Baa3" by Moody's and "BBB" by Fitch;
(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 CFUSA 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 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
CFUSA, as applicable, in this Agreement and the Pooling and Servicing
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 CFUSA, as applicable, has complied with
all of the agreements and satisfied all of the material conditions on
its part to be performed or satisfied under this Agreement at or prior
to the Time of Delivery;
(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, CFUSA, 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);
-16-
(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) CFUSA 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 and Sale Agreements and
that:
(i) as of the Time of Delivery, no Contracts sold by CFUSA
to the Company constitutes an Ineligible Contract;
(ii) the representations and warranties of CFUSA in the
Purchase and Sale Agreements 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, CFUSA, 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;
(q) The Underwriters shall have received copies of all UCC searches as
Stroock & Stroock & Lavan LLP 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 CFUSA, 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;
-17-
(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 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
-18-
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 Swap Agreement shall have been duly authorized, executed and
delivered by the Swap Counterparty and the Trust.
(u) The Representative shall have received copies of each opinion of
counsel delivered to either Rating Agency or the Cash Collateral Depositors,
together with a letter addressed to the Representative, dated the Closing Date,
to the effect that each Underwriter may rely on each such opinion to the same
extent as though such opinion was addressed to each as of its date.
(v) The Underwriters and Stroock & Stroock & Lavan LLP shall have
received such information, certificates and documents as the Underwriters or
Stroock & Stroock & Lavan LLP may reasonably request.
(w) Morris, James, Hitchens & Williams LLP, special Delaware counsel
to the Trust, shall have furnished to the Underwriters their opinion, dated the
Time of Delivery, in form and substance satisfactory to the Representative.
(x) Morris, James, Hitchens & Williams LLP, special Delaware counsel
to the Company, shall have furnished to the Underwriters their opinions with
respect to the limited liability status of the Company and various bankruptcy
matters, dated the Time of Delivery, in form and substance satisfactory to the
Representative.
7. Indemnification and Contribution. (a) The Company and CFUSA,
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
-19-
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 and CFUSA 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 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 and CFUSA 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 the Company and CFUSA may otherwise have to the Underwriters or any person
who controls such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and CFUSA, their respective directors and officers and each
person, if any who controls the Company and CFUSA, 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 and CFUSA 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 and CFUSA, their respective
directors and officers and each person who controls the Company and CFUSA within
the meaning of Section 15 of the Act, for any legal or other expenses reasonably
incurred by the Company, CFUSA and such other indemnified persons in connection
with investigating, preparing or defending any such loss, claim, damage,
-20-
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 and CFUSA as such expenses are incurred.
(c) 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 party 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).
(d) 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 and CFUSA, 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)
-21-
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, 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 or CFUSA.
(e) Each of the Company and CFUSA jointly and severally 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 or CFUSA, 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 and CFUSA'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).
(f) For purposes of this Section 7, the term "DERIVED INFORMATION"
means such portion, if any, of the information delivered to the Company or CFUSA
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 or CFUSA concerning the Contracts or any other
information furnished by the Company or CFUSA to the Underwriters that is relied
-22-
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, 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).
(g) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b), (d) or (e) 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 and CFUSA 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 and CFUSA 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 and CFUSA 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 and CFUSA 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 or CFUSA 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, CFUSA 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
-23-
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 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.
(h) The obligations of the Company and CFUSA under this Section 7
shall be in addition to any liability which the Company and CFUSA 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
or CFUSA who has signed the Registration Statement and to each person, if any,
who controls the Company or CFUSA 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.
-24-
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warrants and other statements of the
Company, CFUSA 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 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 or CFUSA, or any
officer or director or controlling person of the Company or CFUSA, 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 Banc One Capital Markets, Inc., 1 Bank One Plaza, Mail Suite IL1-0596,
Chicago, IL 60670, Attention: General Counsel; 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
CFUSA or the Company, 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 or CFUSA, or in the earnings,
business affairs or business prospects of the Company or CFUSA, 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
-25-
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 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 or CFUSA
without the written consent of the Underwriters, except in accordance with law.
(c) Notwithstanding anything herein to the contrary, in the event the
Company or CFUSA 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 canceled by the Underwriters by notice thereof to
the Company or CFUSA. 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, CFUSA and, to the extent
provided in Sections 7 and 8 hereof, the officers and directors of the Company
and CFUSA and each person who controls the Company and CFUSA 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 and CFUSA 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.
-26-
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
-27-
If the foregoing is in accordance with your understanding, please sign
and return to us one for each of the Company and CFUSA 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, CFUSA and the Company.
Very truly yours,
NCT FUNDING COMPANY, L.L.C.
By: /s/ Barbara Callahan
--------------------
Name: Barbara Callahan
Title: Vice President
CIT FINANCIAL USA, INC.
By: /s/ Barbara Callahan
--------------------
Name: Barbara Callahan
Title: Vice President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the
date first above written.
- --------------------------------------------
AS REPRESENTATIVE OF THE UNDERWRITERS
By: BANC ONE CAPITAL MARKETS, INC.
By: /s/ David Duzyk
-------------------------
Authorized Representative
-28-
SCHEDULE A
TOTAL AGGREGATE PRINCIPAL AMOUNT
UNDERWRITER OF OFFERED SECURITIES TO BE PURCHASED
- ----------- -------------------------------------
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4
--------- --------- --------- ---------
Banc One Capital Markets, Inc. $57,600,000 $81,280,000 $74,560,000 $41,385,013
Barclays Capital Inc. $30,600,000 $43,180,000 $39,610,000 $21,985,786
First Union Securities, Inc. $30,600,000 $43,180,000 $39,610,000 $21,985,786
Chase Securities Inc. $30,600,000 $43,180,000 $39,610,000 $21,985,786
Salomon Smith Barney Inc. $30,600,000 $43,180,000 $39,610,000 $21,985,786
Total $180,000,000 $254,000,000 $233,000,000 $129,328,157
============ ============ ============ ============
TOTAL AGGREGATE PRINCIPAL AMOUNT
UNDERWRITER OF OFFERED SECURITIES TO BE PURCHASED
- ----------- -------------------------------------
CLASS B CLASS C CLASS D
------- ------- -------
Banc One Capital Markets, Inc. $4,066,356 $5,421,812 $6,777,261
Barclays Capital Inc. $2,160,252 $2,880,335 $3,600,420
First Union Securities, Inc. $2,160,252 $2,880,335 $3,600,420
Chase Securities Inc. $2,160,252 $2,880,335 $3,600,420
Salomon Smith Barney Inc. $2,160,252 $2,880,335 $3,600,420
Total $12,707,364 $16,943,152 $21,178,941
=========== =========== ===========
PURCHASE PRICE PERCENT
- ----------------------
Class A-1: 99.90000%
Class A-2: 99.83216%
Class A-3: 99.79598%
Class A-4: 99.77500%
Class B: 99.71050%
Class C: 99.64758%
Class D: 99.53961%