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EXHIBIT 1.1
NCT FUNDING COMPANY, L.L.C. (Trust Depositor)
[_________________] (Servicer)
UNDERWRITING AGREEMENT
[__________ __], 20__
[Underwriter name and address]
Ladies and Gentlemen:
NCT Funding Company, L.L.C., a Delaware limited liability
company (the "Trust Depositor"), proposes to cause CIT Equipment Collateral
____-_ (the "Trust") to issue the asset backed notes identified in Schedule I
hereto (the "Notes"). The Notes will be issued pursuant to and secured by an
indenture (the "Indenture") to be entered into between ____________ as trustee
(the "Indenture Trustee"), the form of which has been filed as an exhibit to the
Registration Statement (as defined below). The Notes identified in Schedule I
hereto will be sold in a public offering through the underwriters listed in
Schedule II hereto, one or more of which may act as representative of such
underwriters (any underwriter through which Notes are sold shall be referred to
herein as an "Underwriter" or, collectively, all such Underwriters may be
referred to as the "Underwriters"; any representatives thereof may be referred
to herein as a "Representative"). To the extent not defined herein, capitalized
terms used herein have the meanings assigned to such terms in the Pooling and
Servicing Agreement among the Trust Depositor, the Trust, the Indenture Trustee
and _____________, as Servicer (the "Servicer") dated as of [_________ __],
20__.
Section 1. Representations and Warranties. The Trust Depositor
and the Servicer represent and warrant to each Underwriter that:
(a) The Trust Depositor has prepared and filed with
the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"Securities Act"), a registration statement on Form S-3 (registration
number [333-_____]), including a form of prospectus, relating to the
Notes. The registration statement, and any post-effective amendment
thereto, each in the form heretofore delivered to you and, excluding
exhibits thereto, have been declared effective by the Commission. As
used in this Agreement, "Effective Time" means the date and the time as
of which such registration statement, or the most recent post-effective
amendment
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thereto, if any, was declared effective by the Commission and
"Effective Date" means the date of the Effective Time. The Trust
Depositor has furnished to you, for use by the Underwriters, copies of
one or more preliminary prospectuses (each, a "Preliminary
Prospectus"), relating to the Notes. Except where the context otherwise
requires, the registration statement, as amended at the Effective Time,
including all documents filed as a part thereof, and including any
information contained in a prospectus subsequently filed with the
Commission pursuant to Rule 424(b) under the Act and deemed to be part
of the registration statement as of the Effective Time pursuant to Rule
430A under the Act, is herein called the "Registration Statement", and
the prospectus, in the form filed by the Trust Depositor with the
Commission pursuant to Rule 424(b) under the Act or, if no such filing
is required, the form of final prospectus included in the Registration
Statement at the time it became effective, is hereinafter called the
"Prospectus";
(b) The Registration Statement relating to the Notes,
has been filed with the Commission and such Registration Statement has
become effective. No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Trust Depositor
or the Servicer, threatened by the Commission;
(c) The Registration Statement conforms, and any
amendments or supplements thereto and the Prospectus will conform, in
all material respects to the requirements of the Securities Act and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto, as of the applicable
filing date as to the Prospectus and any amendment or supplement
thereto, and as of the Closing Date, 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 (i) that part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification (Form T-1) of the
Indenture Trustee under the Trust Indenture Act or (ii) any
Underwriters' Information as defined in Section 10(b) hereof) contained
therein. The Indenture conforms in all respects to the requirements of
the Trust Indenture Act and the rules and regulations of the Commission
thereunder.
(d) The representations and warranties of the Trust
Depositor in Section [3.01] of the Pooling and Servicing Agreement will
be true and correct as of the Closing Date.
(e) The representations and warranties of the
Servicer in Section [3.02] of the Pooling and Servicing Agreement will
be true and correct as of the Closing Date.
(f) The Servicer and each of its subsidiaries have
been duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good
standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power
and authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged, except where the
failure to so qualify
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or have such power or authority could not have, individually or in the
aggregate, a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of the
Servicer and its subsidiaries taken as a whole.
(g) All the outstanding shares of capital stock of
the Trust Depositor have been duly authorized and validly issued, are
fully paid and nonassessable and, except to the extent set forth in the
Registration Statement, are owned by ___________________,("___")
directly or indirectly through one or more wholly-owned subsidiaries,
free and clear of any claim, lien, encumbrance, security interest,
restriction upon voting or transfer or any other claim of any third
party.
(h) (i) the Pooling and Servicing Agreement, when
duly executed by the Trust Depositor and the Servicer and delivered by
such parties, will constitute a valid and binding agreement of the
Trust Depositor and the Servicer enforceable against them in accordance
with its terms; (ii) the Indenture, when duly executed by the Indenture
Trustee and delivered by the Indenture Trustee, will constitute a valid
and binding agreement of the Trust enforceable against the Trust in
accordance with its terms; (iii) the Notes, when duly executed,
authenticated, issued and delivered as provided in the Indenture, will
be duly and validly issued and outstanding and will constitute valid
and binding obligations of the Trust entitled to the benefits of the
Indenture and enforceable in accordance with its terms; and (iv) the
Indenture, the Pooling and Servicing Agreement, the Trust Agreement
between the Trust Depositor and __________ and the Purchase and Sale
Agreement between CIT Financial USA, Inc. ("CFUSA") as the Seller, and
the Trust Depositor (collectively, the "Transaction Agreements") and
the Notes conform to the descriptions thereof contained in the
Prospectus.
(i) The execution, delivery and performance of this
Agreement, the Transaction Agreements to which the Servicer or its
subsidiary, as the case may be, is a party and the issuance and sale of
the Notes, the consummation of the transactions contemplated hereby and
thereby 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 Servicer or any of its subsidiaries is a
party or by which the Servicer or any of its subsidiaries is bound or
to which any of the property or assets of the Servicer or any of its
subsidiaries is subject, nor will such actions result in any violation
of the provisions of the charter or by-laws of the Servicer or any of
its subsidiaries or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Servicer or any of its subsidiaries or any of their properties or
assets; and except for the registration of the Notes under the
Securities Act, the qualification of the Indenture under the Trust
Indenture Act, such consents, approvals, authorizations, registrations
or qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase and
distribution of the Notes by the Underwriters and the filing of any
financing statements required to perfect the Trust's interest in the
Trust Assets, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body is required for the execution, delivery and
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performance of this Agreement or the Transaction Agreements, the
issuance and sale of the Notes and the consummation of the transactions
contemplated hereby and thereby.
(j) There are no contracts or other documents which
are required to be described in the Prospectus or filed as exhibits to
the Registration Statement by the Securities Act and which have not
been so described or filed.
(k) There are no legal or governmental proceedings
pending to which the Servicer or any of its subsidiaries is a party or
of which any property or assets of the Servicer or any of its
subsidiaries is the subject which, individually or in the aggregate, if
determined adversely to the Servicer or any of its subsidiaries, are
reasonably likely to have a material adverse effect on the condition
(financial or otherwise), results of operations, business or prospects
of the Servicer and its subsidiaries taken as a whole; and to the best
of the Servicer's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(l) Neither the Servicer nor any of its subsidiaries
(i) is in violation of its charter or by-laws, (ii) is in default in
any material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it is
bound or to which any of its property or assets is subject or (iii) is
in violation in any respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be
subject, except any violation or default that could not have a material
adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Servicer and its subsidiaries
taken as a whole.
(m) This Agreement has been duly authorized, executed
and delivered by each of the Trust Depositor and the Servicer; and
(n) Neither the Trust nor the Trust Depositor is
required to be registered under the Investment Company Act of 1940, as
amended.
Section 2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the covenants, representations and warranties
herein set forth, the Trust Depositor agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Trust
Depositor, the principal amount of Notes set forth opposite such Underwriter's
name in Schedule II hereto. The purchase price for the Notes shall be as set
forth in Schedule I hereto.
Section 3. Delivery and Payment. Payment for the Notes shall
be made to the Trust Depositor or to its order by wire transfer of same day
funds at the office of [______________ in New York City, New York at 10:00 A.M.,
New York time], on the Closing Date (as hereinafter defined), or at such other
time on the same or such other date as the Representative and the Trust
Depositor may agree upon. The time and date of such payment for the Notes as
specified in Schedule I hereto are referred to herein as the "Closing Date." As
used herein, the term "Business
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Day" means any day other than a day on which banks are permitted or required to
be closed in New York City.
Payment for the Notes shall be made against delivery to the
Representative for the respective accounts of the several Underwriters of the
Notes registered in the name of Cede & Co. as nominee of The Depository Trust
Company and in such denominations as the Representative shall request in writing
not later than two full Business Days prior to the Closing Date. The Trust
Depositor shall make the Notes available for inspection by the Representative in
New York, New York not later than one full Business Day prior to the Closing
Date.
Section 4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Notes for sale to the public, which
may include selected dealers, as set forth in the Prospectus.
Section 5. Covenants of the Trust Depositor. The Trust
Depositor covenants and agrees with the Underwriters:
(a) To prepare the Prospectus in a form approved by
the Representative and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission's close of
business on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as may
be required by Rule 430A(a)(3) under the Securities Act.
(b) During the period that a prospectus relating to
the Notes is required to be delivered under the Securities Act in
connection with sales of such Notes (such period being hereinafter
sometimes referred to as the "prospectus delivery period"), before
filing any amendment or supplement to the Registration Statement or the
Prospectus, the Trust Depositor will furnish to the Representative a
copy of the proposed amendment or supplement for review and will not
file any such proposed amendment or supplement to which the
Representative reasonably objects.
(c) During the prospectus delivery period, the Trust
Depositor will advise the Representative promptly after it receives
notice thereof, (i) when any amendment to the Registration Statement
shall have become effective; (ii) of any request by the Commission for
any amendment or supplement to the Registration Statement or the
Prospectus or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any
proceeding for that purpose, (iv) of the issuance by the Commission of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or the initiation or threatening of any
proceedings for that purpose and (v) of any notification with respect
to any suspension of the qualification of the Notes for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and will use its best efforts to prevent the issuance
of any such stop order or suspension and, if any is issued, will
promptly use its best efforts to obtain the withdrawal thereof.
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(d) If, at any time during the prospectus delivery
period, any event occurs as a result of which the Prospectus as then
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the Securities Act, the Trust Depositor
promptly will prepare and file with the Commission, an amendment or a
supplement which will correct such statement or omission or effect such
compliance.
(e) The Trust Depositor will endeavor to qualify the
Notes for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative shall reasonably request and will
continue such qualification in effect so long as reasonably required
for distribution of the Notes; provided, however, that the Trust
Depositor shall not be obligated to qualify to do business in any
jurisdiction in which it is not currently so qualified; and provided,
further, that the Trust Depositor shall not be required to file a
general consent to service of process in any jurisdiction.
(f) The Trust Depositor will furnish to the
Representative, without charge, two copies of the Registration
Statement (including exhibits thereto), one of which will be signed,
and to each Underwriter conformed copies of the Registration Statement
(without exhibits thereto) and, during the prospectus delivery period.
as many copies of any Preliminary Prospectus and the Prospectus and any
supplement thereto as the Underwriters may reasonably request.
(g) For a period from the date of this Agreement
until the retirement of the Notes, or until such time as the
Underwriters shall cease to maintain a secondary market in the Notes,
whichever first occurs, the Trust Depositor will deliver to the
Underwriters (i) the annual statements of compliance, (ii) the annual
independent certified public accountants' reports furnished to the
Indenture Trustee, (iii) all documents required to be distributed to
Noteholders of the Trust and (iv) all documents filed with the
Commission pursuant to the Exchange Act or any order of the Commission
thereunder, in each case as provided to the Indenture Trustee or filed
with the Commission, as soon as such statements and reports are
furnished to the Indenture Trustee or filed or as soon thereafter as
practicable.
(h) To the extent, if any, that the rating provided
with respect to the Notes by the rating agency or agencies that
initially rate the Notes is conditional upon the furnishing of
documents or the taking of any other actions by the Trust Depositor,
the Trust Depositor shall furnish such documents and take any such
other actions.
(i) The Trust Depositor will cause the Trust to make
generally available to Noteholders and to the Representative as soon as
practicable an earnings statement covering a period of at least twelve
months beginning with the first fiscal quarter of the Trust occurring
after the Effective Date of the Registration Statement, which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule
158 of the Commission promulgated thereunder.
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(j) For a period of 90 days from the date hereof, the
Trust Depositor will not offer for sale, sell, contract to sell or
otherwise dispose of, directly or indirectly, or file a registration
statement for, or announce any offering of, any securities
collateralized by, or evidencing an ownership interest in, any
asset-backed securities of the Trust Depositor or the Trust (other than
the Notes purchased hereunder) without the prior written consent of the
Underwriters.
Section 6. Conditions to the Obligations of the Underwriters.
The respective obligations of the several Underwriters hereunder are subject to
the accuracy, when made and on the Closing Date, of the representations and
warranties of the Trust Depositor and the Servicer contained herein, to the
accuracy of the statements of the Trust Depositor and the Servicer made in any
certificates pursuant to the provisions hereof, to the performance by the Trust
Depositor and the Servicer of their respective obligations hereunder and to each
of the following additional terms and conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424 in the manner and within the applicable
time period prescribed for such filing by the rules and regulations of
the Commission under the Securities Act and in accordance with Section
5(a) of this Agreement; and, prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceedings for such purpose
shall have been initiated or threatened by the Commission; and all
requests for additional information from the Commission with respect to
the Registration Statement shall have been complied with to the
reasonable satisfaction of the Representative.
(b) (i) All corporate proceedings and other legal
matters incident to the authorization, form and validity of this
Agreement, the Transaction Agreements, the Notes, the Registration
Statement, the Preliminary Prospectus and the Prospectus, and all other
legal matters relating to such agreements and the transactions
contemplated hereby and thereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Trust
Depositor shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass
upon such matters and (ii) prior to or contemporaneously with the
purchase of Notes hereunder, all transactions contemplated to be
consummated under such Transaction Documents on the Closing Date
(including, without limitation, the issuance and placement of any
subordinated, privately-placed securities) shall have been so
consummated to the reasonable satisfaction of the Underwriters.
(c) [Schulte Roth & Zabel LLP] shall have furnished
to the Representative their written opinion, as U.S. counsel to the
Trust Depositor and the Servicer, addressed to the Underwriters and
dated the Closing Date, in form and substance reasonably satisfactory
to the Underwriters.
(d) (x) [____________] shall have furnished to the
Representative his written
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opinion, as Secretary to the Servicer, addressed to the Underwriters
and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters and (y) [____________] shall have
furnished to the Representative his written opinion, as General Counsel
to the Servicer, addressed to the Underwriters and dated the Closing
Date, in form and substance reasonably satisfactory to the
Underwriters.
(e) [Schulte Roth & Zabel LLP] shall have furnished
to the Representative their written opinion, as U.S. counsel to the
Trust Depositor and the Servicer, addressed to the Underwriters and
dated the Closing Date, in form and substance reasonably satisfactory
to the Underwriters, with respect to the characterization of the
transfer of the Assets by the Seller to the Trust Depositor pursuant to
the Purchase and Sale Agreement as a sale and the non-consolidation of
the Trust Depositor and the Servicer.
(f) The Representative shall have received from
__________ counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to such matters as the
Underwriters may require, and the Trust Depositor shall have furnished
to such counsel such documents as they reasonably request for enabling
them to pass upon such matters.
(g) (i) __________ shall have furnished to the
Representative their written opinion, as counsel to the Indenture
Trustee, addressed to the Underwriters and dated the Closing Date, in
form and substance reasonably satisfactory to the Underwriters and (ii)
__________ shall have furnished to the Representative their written
opinion, as counsel to the Owner Trustee, addressed to the Underwriters
and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters.
(h) Each of the Trust Depositor and the Servicer
shall have furnished to the Representative a certificate, dated the
Closing Date, of any of its Chairman of the Board, President or Vice
President and its chief financial officer stating that (i) such
officers have carefully examined the Registration Statement and the
Prospectus, (ii) the Prospectus does not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading (provided that each of the Trust Depositor and the Servicer
may exclude Underwriters' Information (as defined herein) from such
representation), (iii) the representations and warranties of the
Servicer or the Trust Depositor, as the case may be, contained in this
Agreement and the Transaction Agreements are true and correct in all
material respects on and as of the Closing Date, (iv) the Servicer or
the Trust Depositor, as the case may be, has complied in all material
respects with all agreements and satisfied in all material respects all
conditions on its part to be performed or satisfied hereunder and under
such agreements at or prior to the Closing Date, (v) no stop order
suspending the effectiveness of the Registration Statement has been
issued and is outstanding and no proceedings for that purpose have been
instituted and not terminated or, to the best of his or her knowledge,
are contemplated by the Commission, and (vi) since the date of its most
recent financial statements, there has been no material adverse change
in the financial position or results of operations of the Servicer or
the Trust Depositor, as applicable, or the Trust or any change, or any
development including a prospective change, in or
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affecting the condition (financial or otherwise), results of operations
or business of the Servicer or the Trust Depositor or the Trust except
as set forth in or contemplated by the Registration Statement and the
Prospectus.
(i) Subsequent to the date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or
properties of the Trust Depositor or the Servicer which materially
impairs the investment quality of the Notes; (ii) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange
or the over-the-counter market shall have been suspended or limited, or
minimum prices shall have been established on either of such exchanges
or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, or
trading in securities of the Trust Depositor or the Servicer on any
exchange or in the over-the-counter market shall have been suspended or
(iii) a general moratorium on commercial banking activities shall have
been declared by Federal or New York State authorities or (iv) an
outbreak or escalation of hostilities or a declaration by the United
States of a national emergency or war or such a material adverse change
in general economic, political or financial conditions (or the effect
of international conditions on the financial markets in the United
States shall be such) as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with the public
offering or the delivery of the Notes on the terms and in the manner
contemplated in the Prospectus.
(j) With respect to the letter of __________
delivered to the Underwriters concurrently with the execution of this
Agreement (the "initial letter"), the Trust Depositor shall have
furnished to the Underwriters a letter (the "bring-down letter") of
such accountants, addressed to the Underwriters and dated the Closing
Date (i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualifications of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as
of the date of the bring-down letter (or with respect to matters
involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of
a date not more than five days prior to the date of such bring-down
letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by its initial letter
and (iii) confirming in all material respects the conclusions and
findings set forth in its initial letter.
(k) The Underwriters shall receive evidence
satisfactory to them that, on or before the Closing Date, UCC-1
financing statements have been or are being filed in each office in
each jurisdiction in which such financing statements are required to
perfect the first priority security interests created by the Sale and
Servicing Agreement reflecting the interest of the Trust Depositor in
the Receivables and the proceeds thereof.
(l) Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating
accorded the Notes or any of the Trust Depositor's other debt
securities by any "nationally recognized statistical rating
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organization", as that term is defined by the Commission for purposes
of Rule 436(g)(2) of the Securities Act and (ii) no such organization
shall have publicly announced that it has under surveillance or review
(other than an announcement with positive implications of a possible
upgrading), its rating of the Notes or any of the Trust Depositor's
other debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
Section 7. Termination. The obligations of the Underwriters
hereunder may be terminated by the Representative, in its absolute discretion,
by notice given to and received by the Trust Depositor and the Servicer prior to
delivery of and payment for the Notes if, prior to that time, any of the events
described in Section 6(i) or Section 6(l) shall have occurred.
Section 8. Defaulting Underwriters.
(a) If, on the Closing Date, any Underwriter or
Underwriters default in the performance of its or their obligations
under this Agreement, the Representative may make arrangements for the
purchase of such Notes by other persons satisfactory to the Trust
Depositor and the Representative, including any of the Underwriters,
but if no such arrangements are made by the Closing Date, then each
remaining non-defaulting Underwriter shall be severally obligated to
purchase the Notes which the defaulting Underwriter or Underwriters
agreed but failed to purchase on the Closing Date in the respective
proportions which the principal amount of Notes set forth opposite the
name of each remaining non-defaulting Underwriter in Schedule I hereto
bears to the aggregate principal amount of Notes set forth opposite the
names of all the remaining non-defaulting Underwriters in Schedule I
hereto; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the Notes on the
Closing Date if the aggregate principal amount of Notes which the
defaulting Underwriter or Underwriters agreed but failed to purchase on
such date exceeds one-eleventh of the aggregate principal amount of the
Notes to be purchased on the Closing Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase in total
more than [____]% of the principal amount of the Notes which it agreed
to purchase on the Closing Date pursuant to the terms of Section 2. If
the foregoing maximums are exceeded and the remaining Underwriters or
other underwriters satisfactory to the Representative and the Trust
Depositor do not elect to purchase the Notes which the defaulting
Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Trust Depositor, except that the
provisions of Sections 9 and 13 shall not terminate and shall remain in
effect. As used in this Agreement, the term "Underwriter" includes, for
all purposes of this Agreement unless the context otherwise requires,
any party not listed in Schedule I hereto who, pursuant to this Section
8, purchases Notes which a defaulting Underwriter agreed but failed to
purchase.
(b) Nothing contained herein shall relieve a
defaulting Underwriter of any liability it may have for damages caused
by its default. If other Underwriters are
<PAGE>
obligated or agree to purchase the Notes of a defaulting Underwriter,
either the Representative or the Trust Depositor may postpone the
Closing Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Trust Depositor or
counsel for the Underwriters may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement, and
the Trust Depositor agrees to file promptly any amendment or supplement
to the Registration Statement or the Prospectus that effects any such
changes.
Section 9. Reimbursement of Underwriters' Expenses. If (i) the
Trust Depositor shall fail to tender the Notes for delivery to the Underwriters
for any reason permitted under this Agreement or (ii) the Underwriters shall
decline to purchase the Notes for any reason permitted under this Agreement, the
Trust Depositor shall reimburse the Underwriters for the fees and expenses of
their counsel and for such other out-of-pocket expenses as shall have been
reasonably incurred by them in connection with this Agreement and the proposed
purchase of the Notes, and upon demand the Trust Depositor shall pay the full
amount thereof to the Representative. If this Agreement is terminated pursuant
to Section 8 by reason of the default of one or more Underwriters, the Trust
Depositor shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
Section 10. Indemnification.
(a) The Servicer, the Trust Depositor and CFUSA
shall, jointly and severally, indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Securities Act (collectively referred to for
the purposes of this Section 10 as the Underwriter) against any loss,
claim, damage or liability, joint or several, or any action in respect
thereof, to which that Underwriter may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement as originally filed or in any amendment
thereof or supplement thereto, or in any Preliminary Prospectus or the
Prospectus or in any amendment thereof or supplement thereto 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 not misleading, and shall reimburse each Underwriter for any
legal or other expenses reasonably incurred by that Underwriter
directly in connection with investigating or preparing to defend or
defending against or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that neither the Servicer, the Trust
Depositor nor CFUSA shall be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of or is
based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any Registration Statement as
originally filed or in any amendment thereof or supplement thereto, or
in any Preliminary Prospectus or the Prospectus or in any amendment
thereof or supplement thereto in reliance upon and in conformity with
the Underwriters' Information.
<PAGE>
(b) Each Underwriter, severally and not jointly,
shall indemnify and hold harmless each of the Trust Depositor, the
Servicer, CFUSA, and each of their directors, each officer of the Trust
Depositor, the Servicer or CFUSA who signed the Registration Statement
and each person, if any, who controls the Trust Depositor, the Servicer
or CFUSA within the meaning of the Securities Act (collectively
referred to for the purposes of this Section 10 as the Trust Depositor,
the Servicer or CFUSA, as appropriate), against any loss, claim, damage
or liability, joint or several, or any action in respect thereof, to
which the Trust Depositor, the Servicer and CFUSA may become subject,
under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any
amendment thereof or supplement thereto, or in any Preliminary
Prospectus or the Prospectus or in any amendment thereof or supplement
thereto 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 not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with the
written information furnished to the Trust Depositor, the Servicer and
CFUSA through the Representative by or on behalf of such Underwriter
specifically for use therein (the "Underwriters' Information"), and
shall reimburse the Trust Depositor, the Servicer and CFUSA for any
legal or other expenses reasonably incurred by the Trust Depositor, the
Servicer and CFUSA in connection with investigating or preparing to
defend or defending against or appearing as third party witness in
connection with any such loss, claim, damage or liability (or any
action in respect thereof) as such expenses are incurred.
(c) Promptly after receipt by an indemnified party
under this Section 10 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under this Section 10, notify
the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have under this Section 10 except to the extent it has been materially
prejudiced by such failure; and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this
Section 10. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 10 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Representative shall have
the right to employ counsel to represent jointly the Representative and
the other Underwriters (and their respective controlling persons who
may be subject to liability arising out of any claim in respect of
which indemnity may be sought under this Section 10) if, in the
reasonable judgment of the Representative, it is advisable for the
<PAGE>
Representative and the other Underwriters and controlling persons to be
jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Trust Depositor,
the Servicer and CFUSA. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 10(a) and 10(b), shall use
all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be
liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but
if settled with its written consent or if there be a final judgment of
the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
The obligations of the Servicer, the Trust Depositor, CFUSA and the
Underwriters in this Section 10 are in addition to any other liability which the
Servicer, the Trust Depositor, CFUSA or the Underwriters, as the case may be,
may otherwise have.
Section 11. Contribution. If the indemnification provided for
in this Section 11 is unavailable or insufficient to hold harmless an
indemnified party under Section 10(a) or (b), then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or any action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the Servicer,
the Trust Depositor and CFUSA on the one hand and the Underwriters on the other
from the offering of the Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Servicer, the Trust Depositor and CFUSA on the
one hand and the Underwriters on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or any action
in respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Servicer, the Trust Depositor and CFUSA on the
one hand and the Underwriters on the other with respect to such offering shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Notes purchased hereunder (before deducting expenses) received
by the Trust Depositor bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Notes purchased hereunder, 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
Servicer, the Trust Depositor and CFUSA on the one hand or the Underwriters on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Servicer, the Trust Depositor, CFUSA and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 11 were to be 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 herein. The amount paid or payable by an indemnified party as a
result of the loss, claim damage or liability referred to above in this Section
11 shall be deemed to include, for purposes of this Section 11,
<PAGE>
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such claim or any action.
Notwithstanding the provisions of this Section 11, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public were
offered to the public less the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to indemnify and
contribute as provided in this Section 11 are several in proportion to their
respective underwriting obligations and not joint.
Section 12. Persons Entitled to Benefit of Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Trust Depositor, the Servicer and CFUSA and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters,
the Trust Depositor, the Servicer and CFUSA and their respective successors and
the controlling persons and officers and directors referred to in Sections 10
and 11 and their heirs and legal representatives, any legal or equitable light,
remedy or claim under or in respect of this Agreement or any provision contained
herein.
Section 13. Expenses. The Trust Depositor and the Servicer,
jointly and severally, agree with the Underwriters to pay (i) the costs incident
to the authorization, issuance, sale, preparation and delivery of the Notes and
any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto; (iii) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), any Preliminary Prospectus and the Prospectus, all as provided in
this Agreement; (iv) the costs of reproducing and distributing this Agreement
and any other underwriting and selling group documents by mail, telex or other
means of communications; (v) the fees and expenses of qualifying the Notes under
the securities laws of the several jurisdictions as provided in Section 5(e) and
of preparing, printing and distributing Blue Sky Memoranda and Legal Investment
Surveys (including the related reasonable and documented fees and expenses of
counsel to the Underwriters); (vi) any fees charged by rating agencies for
rating the Notes; (vii) all fees and expenses of the Indenture Trustee and the
Owner Trustee and each of their counsel; (viii) any transfer taxes payable in
connection with its sale of the Notes pursuant to this Agreement; and (ix) all
other costs and expenses incident to the performance of the obligations of the
Trust Depositor and the Servicer under this Agreement; provided that, except as
otherwise provided in this Section 13, the Underwriters shall pay their own
costs and expenses, including, the costs and expenses of their counsel and the
expenses of advertising any offering of the Notes made by the Underwriters.
Section 14. Survival. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Trust Depositor,
the Servicer, CFUSA and the Underwriters contained in this Agreement or made by
or on their behalf, respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Notes and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or
<PAGE>
any investigation made by or on behalf of any of them or any person controlling
any of them.
Section 15. Notices. All communication hereunder shall be in
writing and, (i) if sent to the Underwriters will be mailed, delivered or
telecopied and confirmed to them at [name and address], Telecopy Number: [( )
___-____]; provided, however, that any notice to an Underwriter pursuant to
Section 9(c) shall be delivered or sent by mail, delivery or telecopy to such
Underwriter at its address set forth in its acceptance telex to the
Representative, which address will be supplied to any other party hereto by the
Representative upon request; (ii) if sent to the Trust Depositor, will be
mailed, delivered or telecopied and confirmed to them at the address of the
Trust Depositor set forth in the Registration Statement, Attention: Chief
Financial Officer; (iii) if sent to the Servicer, will be mailed, delivered or
telecopied and confirmed to them at the address of the Servicer set forth in the
Registration Statement, Attention: Vice President and Treasurer and (iv) if sent
to CFUSA, will be mailed, delivered or telecopied and confirmed to them at the
address of CFUSA set forth in the Registration Statement, Attention: Vice
President and Treasurer. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Trust Depositor, the
Servicer and CFUSA shall be entitled to act and rely upon any request, consent,
notice or agreement given or made on behalf of the Underwriters by the
Representative.
Section 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 17. Submission to Jurisdiction; Appointment of Agent
for Service; Currency Indemnity.
(a) To the fullest extent permitted by applicable
law, each of the Trust Depositor, the Servicer and CFUSA irrevocably
submits to the jurisdiction of any Federal or State court in the City,
County and State of New York, United States of America, in any suit or
proceeding based on or arising under this Agreement, and irrevocably
agrees that all claims in respect of such suit or proceeding may be
determined in any such court. Each of the Trust Depositor, the Servicer
and CFUSA hereby irrevocably and fully waives the defense of an
inconvenient forum to the maintenance of such suit or proceeding. Each
of the Trust Depositor, the Servicer and CFUSA hereby irrevocably
designates and appoints CT Corporation (the "Process Agent"), as its
authorized agent upon whom process may be served in any such suit or
proceeding, it being understood that the designation and appointment of
CT Corporation as such authorized agent shall become effective
immediately without any further action on the part of the Trust
Depositor, the Servicer or CFUSA. Each of the Trust Depositor, the
Servicer and CFUSA represents to each Underwriter that it has notified
the Process Agent of such designation and appointment and that the
Process Agent has accepted the same in writing. Each of the Trust
Depositor, the Servicer and CFUSA hereby irrevocably authorizes and
directs the Process Agent to accept such service. Each of the Trust
Depositor, the Servicer and CFUSA further agrees that service of
process upon the Process Agent and written notice of said service to
the Trust Depositor, the Servicer or CFUSA, as the case may be, mailed
by first class mail or delivered to the Process Agent at its principal
office, shall be deemed in every respect effective service of process
upon the Trust Depositor, the Servicer
<PAGE>
or CFUSA, as the case may be, in any such suit or proceeding. Nothing
herein shall affect the right of any Underwriter or any person
controlling any Underwriter to serve process in any other manner
permitted by law. Each of the Trust Depositor, the Servicer and CFUSA
agrees that a final action in any such suit or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other lawful manner.
(b) The obligation of the parties to make payments
hereunder is in U.S. dollars (U.S. dollars and such other currencies
referred to above being called the "Obligation Currency") and such
obligation shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any
currency other than the Obligation Currency or any other realization in
such other currency, whether as proceeds of set-off, security,
guarantee, distributions, or otherwise, except to the extent to which
such tender, recovery or realization shall result in the effective
receipt by the party which is to receive such payment of the full
amount of the Obligation Currency expressed to be payable hereunder,
and the party liable to make such payment agrees to indemnify the party
which is to receive such payment (as an additional, separate and
independent cause of action) for the amount (if any) by which such
effective receipt shall fall short of the full amount of the Obligation
Currency expressed to be payable hereunder and such obligation to
indemnify shall not be affected by judgment being obtained for any
other sums due under this Agreement.
Section 18. Counterparts. This Agreement may be executed 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.
Section 19. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
Section 20. Effectiveness. This Agreement shall become
effective upon execution and delivery.
<PAGE>
If you are in agreement with the foregoing, please sign the counterpart hereof
and return it to the Trust Depositor, whereupon this letter and your acceptance
shall become a binding agreement among the Trust Depositor, the Servicer, CFUSA
and the several Underwriters.
Very truly yours,
NCT FUNDING COMPANY, L.L.C.
By:
--------------------------------------
Name:
Title:
[SERVICER]
By:
--------------------------------------
Name:
Title:
CIT FINANCIAL USA, INC.
By:
--------------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date hereof.
[Underwriters]
as Representative of the Underwriters
By:
--------------------------------------
Name:
Title:
<PAGE>
SCHEDULE I
Date of Underwriting Agreement: [_______ __], 20__
Underwriters:
Representative and Address:
Title, Purchase Price and Description of Notes:
Maturity: [________] [____] Payment Date
Redemption
provisions:
Closing Date, Time and Location:
Date: [_________ __], 20__
Time: [10:00 a.m. New York time]
Location: [_____________, [address], New York]
<PAGE>
SCHEDULE II
UNDERWRITERS
$[__________] Principal Amount of __________ Notes to be Purchased
Principal Amount
$----------
-----------
-----------
-----------
UNDERWRITERS
$[__________] Principal Amount of __________ Notes to be Purchased
Principal Amount
$----------
-----------
-----------
-----------
UNDERWRITERS
$[__________] Principal Amount of __________ Notes to be Purchased
Principal Amount
$----------
-----------
-----------
-----------
UNDERWRITERS
$[__________] Principal Amount of _________ Notes to be Purchased
Principal Amount
$----------
-----------
-----------
-----------
<PAGE>
UNDERWRITER
$[__________] Principal Amount of _________ Notes to be Purchased
Principal Amount
$----------
-----------
-----------
UNDERWRITER
$[__________] Principal Amount of __________ Notes to be Purchased
Principal Amount
$----------
-----------
-----------
