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CIT EQUIPMENT COLLATERAL 2000-2
OWNER TRUST
RECEIVABLE -BACKED NOTES
$ 200,000,000 6.64% RECEIVABLE-BACKED NOTES, CLASS A-1
$ 356,000,000 6.81% RECEIVABLE-BACKED NOTES, CLASS A-2
$ 306,000,000 6.84% RECEIVABLE-BACKED NOTES, CLASS A-3
$ 132,549,665 6.93% RECEIVABLE-BACKED NOTES, CLASS A-4
$ 15,870,473 6.95% RECEIVABLE-BACKED NOTES, CLASS B
$ 21,160,631 7.04% RECEIVABLE-BACKED NOTES, CLASS C
$ 26,450,790 7.52% RECEIVABLE-BACKED NOTES, CLASS D
UNDERWRITING AGREEMENT
September 21, 2000
Salomon Smith Barney Inc.
as Representative for the Underwriters
390 Greenwich Street, 6th Floor
New York, New York 10013
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 Salomon Smith Barney Inc. (hereinafter "SALOMON") is
acting as representative (the "REPRESENTATIVE") an aggregate of $200,000,000
principal amount of the 6.64% Receivable-Backed Notes, Class A-1, $356,000,000
principal amount of the 6.81% Receivable-Backed Notes, Class A-2, $306,000,000
principal amount of the 6.84% Receivable-Backed Notes, Class A-3, $132,549,665
principal amount of the 6.93% Receivable-Backed Notes, Class A-4, $15,870,473
principal amount of the 6.95% Receivable-Backed Notes, Class B, $21,160,631
principal amount of the 7.04% Receivable-Backed Notes, Class C, and $26,450,790
principal amount of the 7.52% Receivable-Backed Notes, Class D (collectively,
the "OFFERED SECURITIES"), of the CIT Equipment Collateral 2000-2 (the "TRUST").
The Trust will be created pursuant to an Amended and Restated Trust Agreement
(the "TRUST AGREEMENT") dated as of September 1, 2000, between the Company and
Chase Manhattan Bank USA, National Association, as owner trustee (the "OWNER
TRUSTEE"). The Offered Securities will be issued under an Indenture (the
"INDENTURE") dated as of September 1, 2000 between the Trust and Allfirst Bank,
as indenture trustee (the "INDENTURE TRUSTEE"). The Trust is also issuing to the
Company the sole Equity Certificate (the "CERTIFICATE") evidencing the entire
beneficial equity interest in the Trust.
Before the Time of Delivery (as defined below), the Company purchased
certain of the Contracts and certain interests in the equipment related to such
Contracts (the equipment
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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 September 28, 2000 between the VFC Trust and the
Company. The Company will also enter into a Substitute VFC Purchase and Sale
Agreement (the "SUBSTITUTE VFC PURCHASE AGREEMENT") dated as of September 1,
2000 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 September 1, 2000 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 September 1, 2000 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
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 Capita 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 $68,772,051 (the
"INITIAL DEPOSIT") into the Cash Collateral Account at the Time of Delivery. As
used herein, the term "RELATED DOCUMENTS" means the Trust Agreement, the Offered
Securities, the Indenture, the Pooling and Servicing Agreement, the VFC Purchase
Agreement, the VFC Assignment, the Substitute VFC Purchase Agreement, the
Non-VFC Conveyancing Agreement, the Non-VFC Purchase Agreement, the Loan
Agreement, and the Letter of Representations among the Trust, the Indenture
Trustee and The Depository Trust Company.
Capitalized terms used herein without definition shall have the
meanings set forth in the Indenture or the Pooling and Servicing Agreement.
2. Representations and Warranties of the Company, CFUSA and Capita.
Each of the Company, CFUSA and Capita, jointly and severally, represents and
warrants to, and agrees with, each of the Underwriters that:
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(a) The Trust, the Company and the Offered Securities meet the
requirements for use of Form S-3 under the Securities Act of 1933, as
amended (the "ACT"); the Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement on Form S-3 (No.
333-74847), including the related preliminary prospectus or prospectuses,
relating to the Offered Securities and the offering thereof from time to
time in accordance with Rule 415 under the Act. Such registration
statement, as amended, has been declared effective by the Commission, and
the Indenture has been qualified under the Trust Indenture Act of 1939, as
amended (the "TRUST INDENTURE ACT"). The Company will prepare and file with
the Commission a prospectus supplement (together with any later dated
prospectus supplement relating to the Offered Securities, the "PROSPECTUS
SUPPLEMENT") specifically relating to the Offered Securities pursuant to
Rule 424 under the Act. The registration statement as amended at the date
hereof is hereinafter referred to as the "REGISTRATION STATEMENT." The term
"BASE PROSPECTUS" means the prospectus dated July 19, 1999 relating to all
offerings of securities under the Registration Statement. The term
"PROSPECTUS" means the Base Prospectus together with the Prospectus
Supplement. The term "PRELIMINARY PROSPECTUS" means any preliminary
prospectus supplement specifically relating to the Offered Securities,
together with the Base Prospectus. As used herein, the terms "REGISTRATION
STATEMENT," "PROSPECTUS," "BASE PROSPECTUS" and "PRELIMINARY PROSPECTUS"
shall include in each case the documents, if any, incorporated by reference
therein. If the Company has filed an abbreviated registration statement to
register additional debt securities pursuant to Rule 462(b) under the Act
(the "RULE 462(b) REGISTRATION STATEMENT"), then any reference herein to
the term "Registration Statement" shall be deemed to include such Rule
462(b) Registration Statement. For purposes of this Agreement, all
references to the Registration Statement, any Preliminary Prospectus or the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the electronically transmitted copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR"). All references in this Agreement to financial
statements and schedules and other information that is "CONTAINED,"
"INCLUDED" or "STATED" in the Registration Statement, any Preliminary
Prospectus or the Prospectus (or other references of like import) shall be
deemed to mean and include all such financial statements and schedules and
other information that is incorporated by reference in the Registration
Statement, any Preliminary Prospectus or the Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to
the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to mean and include the filing of any document with the
Commission pursuant to the 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 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
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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, Capita, 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;
Capita has been duly incorporated and is validly existing as a corporation
in good standing under the laws of Delaware; CFUSA has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the Delaware; each of the TCC Financing Originators
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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, CFUSA and Capita 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, Capita and the TCC
Financing Originators has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so qualified in any
such jurisdiction;
(f) As of the Time of Delivery, each consent, approval, authorization
or order of, or filing with, any court or governmental agency or body that
is required to be obtained or made by the Company, CFUSA, Capita, 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) Any taxes, fees and other governmental charges that are assessed
and due from the Company, CFUSA or Capita in connection with the execution,
delivery and issuance of this Agreement and each Related Document shall
have been paid or will be paid at or prior to the Time of Delivery to the
extent then due;
(h) This Agreement has been duly authorized, executed and delivered by
the Company, CFUSA and Capita and constitutes a legal, valid and binding
agreement of the Company, CFUSA and Capita 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,
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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, CFUSA and Capita, as applicable,
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; the execution,
delivery and performance by the Company, Capita, 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 Agreement, the Trust Agreement, the Swap Agreement and the other
Related Documents will conform in all material respects to the descriptions
thereof in the Prospectus;
(j) The issue of the Offered Securities by the Trust and sale of the
Offered Securities by the Company hereunder and the compliance by the
Trust, the Company, CFUSA and Capita with all of the provisions of this
Agreement, and the compliance by the Trust, the Company, Capita 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, CFUSA or Capita is a party
(except with respect to the notifications and consents required under
certain of the Contracts described in paragraph (m) in the definition of
Eligible Contract in Section 1.01 of the Pooling and Servicing Agreement,
which will be given or obtained no later than 10 days after the Time of
Delivery to the extent described in subsection 5(j) hereof or will
otherwise be repurchased as provided in the Purchase Agreement) or by which
the Trust, the Company, Capita, 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, Capita, 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 or
By-laws of the Company, Capita, 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, Capita 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, Capita or CFUSA of
the transactions contemplated by this Agreement or the Related Documents,
except the registration under the Act of the Offered Securities, such is
have been obtained under the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state or foreign securities or Blue Sky laws in
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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, Capita, CFUSA, the Trust or any of the TCC Financing Originators
is a party or of which any property of the Company, Capita, 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) which is reasonably expected
to materially and adversely affect the performance by the Company, Capita,
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, Capita, CFUSA,
the Trust or such Originator; and, to the best of the Company's, Capita's,
and CFUSA's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(l) The Company, Capita, CFUSA and each of the TCC Financing
Originators are not in violation of their respective Certificate of
Incorporation, Articles of Organization or By-laws and the Trust is not in
violation of the Trust Agreement, and neither the Company, CFUSA, Capita,
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 Capita, 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;
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(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;
(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) Capita represents and warrants that it has made available to the
Underwriters copies of CIT's 1999 consolidated financial statements for the
year ended December 31, 1999 and CIT's balance sheet and statements of
income and retained earnings for the periods ended March 31, 2000 and June
30, 2000 as filed with the SEC. Except as set forth in or contemplated in
the Registration Statement and the Prospectus or as described by CIT or
Capita 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 Capita or CIT since June 30,
2000;
(u) Any taxes, fees and other governmental charges arising from the
execution and delivery by CFUSA, the Company or Capita of this Agreement,
the Pooling and Servicing Agreement, the Trust Agreement and the Indenture
and in connection with the execution, delivery and issuance of the Offered
Securities and with the transfer of the Contracts and the Equipment, have
been paid or will be paid by the Company prior to the Closing Date; and
(v) KMPG LLP is an independent public accountant with respect to
Capita, CFUSA and the Company within the meaning of the Act and the rules
and regulations promulgated thereunder.
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All representations, warranties and agreements made herein shall be
deemed made is of the date hereof and as of the Time of Delivery; provided,
however, that to the extent any representation or warranty relates to a specific
date, such representation and warranty shall be deemed to continue to relate to
such date.
3. Sale and Delivery to the Underwriters; Closing. Subject to the terms
and conditions herein set forth, the Company agrees to cause the Trust to issue
the Offered Securities and the Company agrees to sell to each of the
Underwriters, severally and not jointly, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, the principal amount of
Offered Securities set forth opposite the name of such Underwriter, and at the
purchase price set forth, in Schedule A hereto.
The Offered Securities will be represented initially by one or more
definitive global certificates in registered form which will be deposited by or
on behalf of the Company with The Depository Trust Company ("DTC") or, on DTC's
behalf, with DTC's designated nominee or custodian and duly endorsed to DTC or
in blank by an effective endorsement. The 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 September 28, 2000 or such other time and date as the Representative
and the Company may agree upon in writing. Such time and date are herein called
the "TIME OF DELIVERY."
The documents to be delivered at Time of Delivery by or on behalf of
the parties hereto pursuant to Section 6 hereof, including the cross receipt for
the Offered Securities and any additional documents requested by the
Underwriters pursuant to Section 6(t) hereof, will be delivered at the offices
of Schulte Roth & Zabel LLP, 900 Third Avenue, New York, New York 10022 (the
"CLOSING LOCATION"), and the Offered Securities will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be held at the
Closing Location at 10:00 a.m., New York time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "NEW YORK
BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
4. Offering by Underwriters. (a) 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.
(b) Each of the Underwriters agrees that if it is a foreign broker or
dealer not eligible for membership in the National Association of
Securities Dealers, Inc. (the
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"NASD"), it will not effect any transaction in the Offered Securities
within the United States or induce or attempt to induce the purchase of or
sale of the Offered Securities within the United States, except that you
shall be permitted to make sales to the other Underwriters or to their
United States affiliates; provided that such sales are made in compliance
with an exemption of certain foreign brokers or dealers under Rule 15a-6
under the Exchange Act, and in conformity with the Rules of Fair Practice
of the NASD as such rules apply to non-NASD brokers or dealers.
5. Certain Agreements of the Company, CFUSA and Capita. The Company,
CFUSA and Capita, 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 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
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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.
(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, Capita nor the TCC Financing
Originators will offer, sell, contract to sell or otherwise dispose of,
except as provided hereunder, any securities secured by or evidencing
interests in receivables similar to the Contracts.
(f) So long as any Offered Securities shall be outstanding, the Company
will deliver or cause to be delivered to the Representative the annual
statement as to compliance and the annual statement of a firm of
independent public accountants required to be delivered to the Indenture
Trustee pursuant to Sections 3.10 and 3.11 of the Pooling and Servicing
Agreement, as soon as such statements are furnished to the Company.
(g) The Company will furnish such information, execute such instruments
and take such actions, if any, as the Representative may reasonably request
in connection with the filing with the NASD relating to the Offered
Securities should the Representative determine that such filing is required
or appropriate.
(h) So long as any of the Offered Securities are outstanding, the
Company will furnish or cause the Trust to furnish to the Representative as
soon as practicable (i) all documents required to be distributed to holders
of the Offered Securities or filed with the Commission pursuant to the
Exchange Act or any order of the Commission
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<PAGE>
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 Capita 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, Capita, 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) No later than 10 days after the Time of Delivery, CFUSA and Capita
will deliver to the Representative a written certification that all
notifications and consents required by paragraph (m) in the definition of
"Eligible Contract" in Section 1.01 of the Pooling and Servicing Agreement
have been given, or obtained, as applicable, or if not given or obtained
within such period, the related Contract has been repurchased pursuant to
the terms of the Purchase Agreement.
(k) To the extent, if any, that the rating provided with respect to the
Offered Securities by any of the Rating Agencies that initially rate the
Offered Securities is conditional upon the furnishing of documents or the
taking of any other reasonable actions by the Trust, the Company, the TCC
Financing Originators, CFUSA or Capita, the Company, CFUSA, Capita and the
TCC Financing Originators will use their best efforts to furnish, as soon
as practicable, such documents and take (or cause the taking of) any such
other actions.
(l) The Company will cause the Trust to use the net proceeds received
by it from the issuance of the Offered Securities in the manner specified
in the Prospectus under the caption "USE OF PROCEEDS."
(m) The Company, CFUSA and Capita 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
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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,
CFUSA and Capita 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, CFUSA and Capita, reasonable travel and lodging expenses of
Representative and officers of the Company, CFUSA and Capita 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, CFUSA and Capita 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,
CFUSA and Capita shall have performed all of their respective obligations
hereunder theretofore to be performed, and the following additional conditions
precedent:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission shall
have been complied with to the Representative's reasonable satisfaction;
(b) Winston & Strawn, counsel for the Underwriters, shall have
furnished to the Underwriters such opinion or opinions, dated the Time of
Delivery, with respect to certain securities law issues and other related
matters as the Representative may
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<PAGE>
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to based upon
such matters;
(c) The Underwriters shall have received (i) from Schulte Roth & Zabel
LLP, opinions in respect of "true sale", "nonconsolidation" and the
validity of the Related Documents, in form and substance reasonably
satisfactory to them or letters authorizing the Underwriters to rely upon
such opinions and (ii) letters authorizing the Underwriters to rely upon
any other opinion or opinions delivered by counsel or certificates
delivered by any party to any of the Rating Agencies in connection with the
transactions contemplated by this Agreement and the Related Documents;
(d) Schulte Roth & Zabel LLP, counsel for the Company, shall have
furnished to the Underwriters their opinions, dated the Time of Delivery,
in form and substance as the opinions attached hereto as Exhibit A and
reasonably satisfactory to the Representative;
(e) The Underwriters shall have received from Schulte Roth & Zabel LLP
opinions in respect of tax matters in form and substance reasonably
satisfactory to them;
(f) Ballard Spahr Andrews & Ingersoll, LLP, 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 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
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<PAGE>
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) Richards, Layton & Finger, P.A., 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
and, on behalf of the Trust, under the Related Documents to which the
Trust is a party;
(iii) The execution and delivery of the Trust Agreement and, on
behalf of the Trust, of the Related Documents to which the Trust is a
party, and the performance by the Owner Trustee of its obligations
under the Trust Agreement, and the Related Documents to which the Trust
is a party have been duly authorized by all necessary corporate action
of the Owner Trustee and each has been duly executed and delivered by
the Owner Trustee;
(iv) The Related Documents to which the Trust is a party constitute
valid and blinding agreements of the Owner Trustee, enforceable against
the Owner Trustee in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer reorganization, moratorium
and other similar laws of general applicability relating to or
affecting creditors' rights and general equity principles;
(v) The execution and delivery by the Owner Trustee of the Trust
Agreement and, on behalf of the Trust, of the Related Documents to
which the Trust is a party do not require any consent, approval or
authorization of, or any registration or filing with, any New York or
federal governmental authority having jurisdiction over the trust power
of the Owner Trustee, other than those
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<PAGE>
consents, approvals or authorizations as have been obtained and the
filing of the Certificate of Trust with the Secretary of State of the
State of Delaware;
(vi) The Offered Securities have been duly authorized, executed and
issued by the Owner Trustee, on behalf of the Trust; and
(vii) The execution and delivery by the Owner Trustee of the Trust
Agreement and, on behalf of the Trust, the related Documents to which
the Trust is a party, and the performance by the Owner Trustee of its
obligations thereunder do not conflict with, result in breach or
violation of or constitute a default under, the Articles of
Incorporation or By-laws of the Owner Trustee.
(h) (i) On the date of the Prospectus, (ii) at 9:30 a.m., New York City
time, on the effective date of any post-effective amendment to the
Registration Statement filed subsequent to the date of this Agreement and
(iii) at the Time of Delivery, KMPG LLP shall have furnished to the
Representative a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to the Representative,
containing statements and information of the type customarily included in
accountants' "agreed-upon procedures letters" to underwriters in
transactions of this nature, including a statement by each to the effect
that KMPG LLP is an independent public accountant with respect to the
Trust, the Company, the TCC Financing Originators, CFUSA, Capita 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, Capita, 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) [reserved];
(k) At the Time of Delivery, (i) the Class A-1 Notes shall be rated by
each of Standard & Poor's Ratings Services ("S&P"), Moody's Investors
Service, Inc. ("MOODY'S") A-1+ and P-1, respectively; (ii) the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes shall be rated at least
AAA by S&P and Aaa by Moody's; (iii) the Class B Notes shall be rated at
least "AA" by S&P and "Aa3" by Moody's; (iv) the Class C Notes shall be
rated at least "A" by S&P and "A2" by Moody's; and (v) the Class D Notes
shall be rated at least "BBB" by S&P and "Baa3" by Moody's;
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<PAGE>
(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 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, Capita, the TCC Financing Originators or
the Trust (other than as contemplated in the Registration Statement)
which would be expected to have a material adverse effect on either (1)
the ability of such person to consummate the transactions contemplated
by, or to perform its respective obligations under, this Agreement or
any of the Related Documents to which it is a party or (2) the
Contracts or the Trust Estate (taken as a group);
(v) as of the Time of Delivery, no Contracts constituting a
material portion of the Contract Pool Principal Balance constitute
Ineligible Contracts; and
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<PAGE>
(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 Agreement and
the VFC Purchase Agreement 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
Agreement are true and correct at and as of the Time of Delivery as if
made on and as of the Time of Delivery (except to the extent they
expressly relate to an earlier date, in which case the representations
and warranties of such party are true and correct as of such certain
date as if made at the Time of Delivery); and
(iii) as to such other matters as the Representative may reasonably
request.
(o) The Company shall have delivered to the Representative a copy,
certified by an officer of the Company, of the Registration Statement as
initially filed with the Commission and of all amendments thereto
(including all exhibits) and full and complete sets of all written comments
of the Commission or its staff and all written responses thereto with
respect to the Registration Statement;
(p) The Company, Capita, 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
Winston & Strawn shall reasonably request and within 10 days after the Time
of Delivery, copies of UCC Financing Statements and any other evidence of
the taking of any other action in all jurisdictions necessary to protect
and perfect the ownership and security interests of 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;
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<PAGE>
(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
organization, and a court in
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<PAGE>
such country would uphold such choice of law in a suit, action or other
proceeding on the Loan Agreement brought in a court in such country;
and
(vi) if the Cash Collateral Depositor is organized outside of the
United States, any judgment for a fixed and definite sum of money
rendered by the courts of the State of New York or the United States of
America located in the State of New York, in respect of any suit,
action or other proceeding for the enforcement of the Loan Agreement
will, upon request, be declared valid and enforceable against such Cash
Collateral Depositor by the competent courts of its country of
organization, without reexamination of the matters adjudicated upon, if
such judgment is not subject to appeal and is enforceable according to
the laws of the State of New York or United States Federal law; and
(t) The Underwriters and Winston & Strawn shall have received such
information, certificates and documents as the Underwriters or Winston &
Strawn may reasonably request.
7. Indemnification and Contribution. (a) The Company, CFUSA and Capita,
jointly and severally, will indemnify and hold harmless each Underwriter, its
partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act, from and against any
and all losses, claims, damages or liabilities, joint or several, to which such
Underwriter or any such controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein in the light of the circumstances under which they were
made not misleading, and will promptly reimburse each Underwriter, their
respective directors and officers and each person who controls the Underwriter
within the meaning of Section 15 of the Act, for any legal or other expenses
reasonably incurred by any Underwriter and such other indemnified persons in
connection with investigating, preparing or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
(i) that the Company, CFUSA and Capita 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, CFUSA and Capita shall not, in connection
with any one such action or separate but substantially similar or related
transactions in the same jurisdiction
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arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys for all
such Underwriters, which firm shall be designated in accordance with Section
7(c) hereof. The foregoing indemnity agreement is in addition to any liability
which each of the Company, CFUSA and Capita 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, CFUSA and Capita, their respective directors and
officers and each person, if any who controls the Company, CFUSA or Capita,
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, CFUSA or
Capita 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, CFUSA and Capita, their respective directors and officers and each
person who controls the Company, CFUSA or Capita within the meaning of
Section 15 of the Act, for any legal or other expenses reasonably incurred
by the Company, CFUSA, Capita and such other indemnified persons in
connection with investigating, preparing or defending any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which may otherwise
have to each of the Company, CFUSA and Capita 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
21
<PAGE>
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, CFUSA and Capita, and
their respective directors, officers and controlling persons within the
meaning of Section 15 of the Act, against any and all losses, claims,
damages or liabilities, joint or several, to which they may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement of a material fact contained in the Derived
Information provided by such Underwriter, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and
agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by him, her or it in connection with
investigating or defending or preparing to defend any such loss, 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, CFUSA or Capita.
(e) Each of the Company, CFUSA and Capita 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
22
<PAGE>
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, CFUSA and Capita, 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, CFUSA's and Capita'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,
CFUSA or Capita 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, Capita or CFUSA concerning the Contracts or any
other information furnished by the Company, Capita or CFUSA to the Underwriters
that is relied on or is reasonably anticipated by the parties hereto to be
relied on by the Underwriters in the course of the Underwriters' preparation of
its Derived Information or the Provided Information.
The terms "COLLATERAL TERM SHEET" and "STRUCTURAL TERM SHEET" shall
have the respective meanings assigned to them in the February 13, 1995 letter
(the "PSA LETTER") of Cleary, Gottlieb, Steen & Hamilton on behalf of the Public
Securities Association (which letter, 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).
23
<PAGE>
(g) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by
the Company, CFUSA and Capita 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, CFUSA and Capita 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,
CFUSA and Capita 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, CFUSA and Capita 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, CFUSA or Capita 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, Capita and the Underwriters
agree that it would not be just and equitable if contributions pursuant to
this subsection (g) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to above in this subsection (g). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) referred to
above in this subsection (g) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating, preparing or defending any such action or claim.
Notwithstanding the provisions of this subsection (g), no Underwriter shall
be required to contribute any amount in excess of the underwriting discount
as set forth on the cover page of the Prospectus paid to the respective
Underwriter. No person guilty of fraudulent misrepresentation (within the
meaning of 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, CFUSA and Capita under this
Section 7 shall be in addition to any liability which the Company, CFUSA
and Capita may
24
<PAGE>
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, CFUSA or Capita who has signed the
Registration Statement and to each person, if any, who controls the
Company, CFUSA or Capita within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder at the Time of
Delivery and the aggregate principal amount of Offered Securities (determined on
a class by class basis) that such defaulting Underwriter or Underwriters agreed
but failed to purchase does not exceed 10% of the total principal amount of
Offered Securities (determined on a class by class basis) that the Underwriters
are obligated to purchase at such Time of Delivery, the Representative may make
arrangements satisfactory to the Company for the purchase of the Offered
Securities (determined on a class by class basis) by other persons, including
any of the Underwriters, but if no such arrangements are made by such Time of
Delivery, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities (determined on a class by class basis) that such defaulting
Underwriter or Underwriters agreed but failed to purchase on such Time of
Delivery. If any Underwriter or Underwriters so default and the aggregate
principal amount of Offered Securities (determined on a class by class basis)
with respect to which such default or defaults occur exceed 10% of the total
principal amount of Offered Securities (determined on a class by class basis
that the Underwriters are obligated to purchase at such Time of Delivery and
arrangements satisfactory to the Representative and the Company for the purchase
of such Offered Securities by other persons are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company, except as provided, in Section 9
hereof. As used in this Agreement, the term "UNDERWRITER" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
In the event of any such default which does not result in a termination
of this Agreement, any of the non-defaulting Underwriters or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required change in the Registration Statement or
Prospectus or in any other documents or arrangements.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warrants and other statements of the
Company, CFUSA, Capita 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,
CFUSA or Capita, or any officer or director or controlling person of the
Company, CFUSA or Capita, 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
25
<PAGE>
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
Salomon Smith Barney Inc., 388 Greenwich Street, New York, New York 10013,
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, the Company
or Capita 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, CFUSA or Capita, or in the
earnings, business affairs or business prospects of the Company, CFUSA or
Capita, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in your reasonable judgment,
impracticable to market the Offered Securities or enforce contracts for the
sale of the Offered Securities, or (iii) if trading generally on either the
American Stock Exchange or the New York Stock Exchange has been 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, CFUSA or
Capita without the written consent of the Underwriters, except in
accordance with law.
26
<PAGE>
(c) Notwithstanding anything herein to the contrary, in the event the
Company, CFUSA or Capita does not perform any obligation under this
Agreement or any representation and warranty hereunder is incomplete or
inaccurate in any material respect, this Agreement and all of the
Underwriters' obligations hereunder may be immediately cancelled by the
Underwriters by notice thereof to the Company, CFUSA or Capita. 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 Capita and, to the
extent provided in Sections 7 and 8 hereof, the officers and directors of the
Company, CFUSA and Capita and each person who controls the Company, CFUSA and
Capita 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, CFUSA and Capita 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.
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
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us one for each of the Company, CFUSA and Capita 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, Capita and the Company.
Very truly yours,
NCT FUNDING COMPANY, L.L.C.
By: /s/ Barbara A. Callahan
-----------------------------------
Name: Barbara A. Callahan
Title: Vice President
CIT FINANCIAL USA, INC.
By: /s/ Barbara A. Callahan
-----------------------------------
Name: Barbara A. Callahan
Title: Vice President
CAPITA CORPORATION
By: /s/ Barbara A. Callahan
-----------------------------------
Name: Barbara A. 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: SALOMON SMITH BARNEY INC.
By: /s/ C. Hawke
----------------------------
Authorized Representative
[Signature Page to Underwriting Agreement]
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Underwriter Total Aggregate Principal Amount
----------- of Offered Securities to be Purchased
-------------------------------------
Class A-1 Class A-2 Class A-3 Class A-4
<S> <C> <C> <C> <C>
Salomon Smith Barney Inc............. $60,000,000 $106,800,000 $91,800,000 $39,764,900
Banc One Capital Markets, Inc. ...... $28,000,000 $49,840,000 $42,840,000 $18,556,953
Barclays Capital Inc................. $28,000,000 $49,840,000 $42,840,000 $18,556,953
Deutsche Banc Alex. Brown............ $28,000,000 $49,840,000 $42,840,000 $18,556,953
First Union Securities, Inc.......... $28,000,000 $49,840,000 $42,840,000 $18,556,953
J.P. Morgan Securities Inc........... $28,000,000 $49,840,000 $42,840,000 $18,556,953
Total $200,000,000 $356,000,000 $306,000,000 $132,549,665
</TABLE>
<TABLE>
<CAPTION>
Underwriter Total Aggregate Principal Amount
----------- of Offered Securities to be Purchased
-------------------------------------
Class B Class C Class D
<S> <C> <C> <C>
Salomon Smith Barney Inc............. $4,761,143 $6,348,191 $7,935,235
Banc One Capital Markets, Inc. ...... $2,221,866 $2,962,488 $3,703,111
Barclays Capital Inc................. $2,221,866 $2,962,488 $3,703,111
Deutsche Banc Alex. Brown............ $2,221,866 $2,962,488 $3,703,111
First Union Securities, Inc.......... $2,221,866 $2,962,488 $3,703,111
J.P. Morgan Securities Inc........... $2,221,866 $2,962,488 $3,703,111
Total $15,870,473 $21,160,631 $26,450,790
</TABLE>
<TABLE>
<CAPTION>
Purchase Price to Public
(as a percentage of
the principal amount of
each class of Offered Securities)*
<S> <C>
Class A-1: 99.90000%
Class A-2: 99.83283%
Class A-3: 99.79366%
Class A-4: 99.75559%
Class B: 99.71670%
Class C: 99.63645%
Class D: 99.54317%
</TABLE>
29
