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Exhibit 1.1
Class A Note Underwriting Agreement
dated July 11, 2001
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CLASS A NOTE UNDERWRITING AGREEMENT
CATERPILLAR FINANCIAL ASSET TRUST 2001-A
CLASS A-1 3.74% ASSET BACKED NOTES
CLASS A-2 4.11% ASSET BACKED NOTES
CLASS A-3 4.85% ASSET BACKED NOTES
July 11, 2001
Xxxxxxx, Xxxxx & Co.
As Representative of the
Several Underwriters
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. Caterpillar Financial Funding Corporation, a Nevada
corporation (the "Seller"), proposes to cause Caterpillar Financial Asset Trust
2001-A (the "Trust") to issue and sell $181,448,000 aggregate principal amount
of Class A-1 3.74% Asset Backed Notes (the "Class A-1 Notes"), $134,000,000
aggregate principal amount of Class A-2 4.11% Asset Backed Notes (the "Class A-2
Notes") and $277,687,000 aggregate principal amount of Class A-3 4.85% Asset
Backed Notes (the "Class A-3 Notes," together with the Class A-1 Notes and the
Class A-2 Notes, the "Class A Notes") to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you are acting as
representative (the "Representative"). The assets of the Trust will include,
among other things, a pool of fixed-rate retail installment sale contracts and
finance leases (the "Receivables") secured by new and used machinery
manufactured primarily by Caterpillar Inc. ("Caterpillar"), including rights to
receive certain payments with respect to such Receivables, and security
interests in the machinery financed by the Receivables (the "Financed
Equipment"), and the proceeds thereof. The Receivables will be sold to the Trust
by the Seller. The Receivables will be serviced for the Trust by Caterpillar
Financial Services Corporation, a Delaware corporation (the "Servicer" or
"CFSC"). The Notes will be issued pursuant to the Indenture to be dated as of
July 1, 2001 (as amended and supplemented from time to time, the "Indenture"),
between the Trust and Bank One, National Association, a national banking
association (the "Indenture Trustee").
Simultaneously with the issuance and sale of the Class A Notes as
contemplated herein, the Trust will issue $15,527,000 aggregate principal amount
of 5.72% Class B Asset Backed Notes (the "Class B Notes," together with the
Class A Notes, the "Notes") and $12,422,797 aggregate principal amount of Asset
Backed Certificates (the "Certificates," together with the Notes sometimes
referred to collectively herein as the "Securities"), each such certificate
representing a fractional undivided interest in the Trust. The Class B Notes
will be sold pursuant to an underwriting agreement (the "Class B Note
Underwriting Agreement," together with this Agreement, the "Underwriting
Agreements") among the Seller, CFSC and Xxxxxxx, Sachs & Co., as underwriter.
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Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in the Sale and Servicing Agreement to be dated as of
July 1, 2001 (as amended and supplemented from time to time, the "Sale and
Servicing Agreement"), among the Trust, the Seller and the Servicer or, if not
defined therein, in the Indenture or the Trust Agreement to be July 1, 2001 (as
amended and supplemented from time to time, the "Trust Agreement"), between the
Seller and Chase Manhattan Bank USA, National Association, a national banking
association as owner trustee under the Trust Agreement (the "Owner Trustee").
2. Representations and Warranties of the Seller and CFSC. Each of the
Seller and CFSC, with respect to itself only, and not with respect to the other,
represents and warrants to and agrees with each Underwriter that:
(a) The Seller meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
(Registration No. 333-58814) on such Form S-3, including a prospectus and a form
of prospectus supplement, for registration under the Act of the offering and
sale of the Notes. The Seller may have filed one or more amendments thereto,
each of which amendments has previously been furnished to the Representative.
The Seller will also file with the Commission a prospectus supplement in
accordance with Rule 424(b) under the Act. The Seller has included in the
Registration Statement, as amended at the Effective Date (as hereinafter
defined), all information required by the Act and the rules thereunder to be
included in the Prospectus (as hereinafter defined) with respect to the Notes
and the offering thereof. As filed, the registration statement as amended, the
form of prospectus supplement, and any prospectuses or prospectus supplements
filed pursuant to Rule 424(b) under the Act relating to the Notes shall, except
to the extent that the Representative shall agree in writing to a modification,
be in all substantive respects in the form furnished to the Representative prior
to the Execution Time (as hereinafter defined) or, to the extent not completed
at the Execution Time, shall contain only such specific additional information
and other changes (beyond that contained in the latest preliminary prospectus
supplement which has previously been furnished to the Representative) as the
Seller has advised the Representative, prior to the Execution Time, will be
included or made therein.
For purposes of this Agreement, "Effective Time" means the date and time
as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission, and
"Effective Date" means the date of the Effective Time. "Execution Time" shall
mean the date and time that this Agreement is executed and delivered by the
parties hereto. Such registration statement, as amended at the Effective Time,
and including the exhibits thereto and any material incorporated by reference
therein (including any Computational Materials, ABS Term Sheets, Structural Term
Sheets and Collateral Term Sheets (as defined in Section 13 of this Agreement)
filed on Form 8-K), is hereinafter referred to as the "Registration Statement,"
and any prospectus supplement (the "Prospectus Supplement") relating to the
Notes, as filed with the Commission pursuant to and in accordance with Rule
424(b) under the Act is, together with the prospectus filed as part of the
Registration Statement (such prospectus, in the form it appears in the
Registration Statement or in the form most recently revised and filed with the
Commission pursuant to Rule 424(b) being hereinafter referred to as the "Basic
Prospectus"), hereinafter referred to as the "Prospectus". "Preliminary
Prospectus" means any preliminary prospectus to the Prospectus which describes
the Notes and
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the offering thereof and which is used prior to the filing of the Prospectus.
"Rule 424" refers to such rule under the Act. Any reference herein to the
Registration Statement, the Prospectus or any Prospectus Supplement shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on or before the Effective Date of
the Registration Statement or the issue date of the Prospectus or any Prospectus
Supplement, as the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement, the
Prospectus or any Prospectus Supplement shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement, or the issue date of the Prospectus or any
Prospectus Supplement, as the case may be, deemed to be incorporated therein by
reference.
(b) On the Effective Date and on the date of this Agreement, the
Registration Statement did or will, and, when the Prospectus was first filed and
on the Closing Date (as defined below), the Prospectus and any Prospectus
Supplement did or will comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the respective rules and regulations
of the Commission thereunder (the "Rules and Regulations") and of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). On the Effective
Date, the Registration Statement did not and will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Prospectus, together with any Prospectus
Supplement, did not or will not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Seller makes no representation or
warranty as to the information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with information
furnished in writing to the Seller by any Underwriter through the Representative
specifically for use in connection with preparation of the Registration
Statement or the Prospectus.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there has not been any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, management,
financial condition, stockholders' equity, results of operations, regulatory
status or business prospects of the Seller or CFSC, and (ii) neither the Seller
nor CFSC has entered into any transaction or agreement (whether or not in the
ordinary course of business) material to it that, in either case, would
reasonably be expected to materially adversely affect the interests of the
holders of the Notes, other than as set forth or contemplated in the Prospectus.
(d) The computer tape of the Receivables created as of July 1, 2001,
and made available to the Representative by the Servicer, was complete and
accurate as of the date thereof and includes a description of the Receivables
that are described in Schedule A to the Sale and Servicing Agreement.
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(e) Each of the Seller and CFSC is duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation and is qualified to transact business in and is in good standing
under the laws of each state in which its activities require such qualification,
and has full power, authority and legal right to own its properties and conduct
its business as such properties are presently owned and such business is
presently conducted.
(f) This Agreement has been duly authorized, executed and delivered
by each of the Seller and CFSC.
(g) On the date of this Agreement and on the Closing Date, the
representations and warranties of CFSC and the Seller in each of the Basic
Documents to which they are a party will be true and correct.
(h) CFSC's sale, transfer, assignment, set over and conveyance of the
Receivables to the Seller as of the Closing Date will vest in the Seller all of
CFSC's right, title and interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance.
(i) The Seller's sale, transfer, assignment, set over and conveyance
of the Receivables to the Trust as of the Closing Date will vest in the Trust
all of the Seller's right, title and interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other encumbrance.
(j) The Trust's grant of a security interest in the Receivables to
the Indenture Trustee pursuant to the Indenture will vest in the Indenture
Trustee, for the benefit of the Noteholders, a first priority perfected security
interest therein, subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance.
3. Purchase, Sale, and Delivery of the Class A Notes. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Seller agrees to cause the Trust
to sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Trust, (a) at a purchase price of 99.900000% of
the principal amount thereof, the respective principal amount of the Class A-1
Notes set forth opposite the name of such Underwriter in Schedule I hereto, (b)
at a purchase price of 99.838582% of the principal amount thereof, the
respective principal amount of the Class A-2 Notes set forth opposite the name
of such Underwriter in Schedule I hereto and (c) at a purchase price of
99.778914% of the principal amount thereof, the respective principal amount of
the Class A-3 Notes set forth opposite the name of such Underwriter in Schedule
I hereto. Delivery of and payment for the Class A Notes shall be made at the
office of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 on July 25, 2001 (the "Closing Date"). Delivery of the Class A Notes
shall be made against payment of the purchase price in immediately available
funds drawn to the order of the Seller. The Class A Notes to be so delivered
will be initially represented by one or more Class A Notes registered in the
name of "Cede & Co.," the nominee of The Depository Trust Company ("DTC"). The
interests of beneficial owners of the Class A Notes will be represented by book
entries on the
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records of DTC and participating members thereof. Definitive Class A Notes will
be available only under limited circumstances set forth in the Indenture.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Class A Notes for sale to the public (which may include
selected dealers) as set forth in the Prospectus.
5. Covenants of the Seller. The Seller covenants and agrees with each of
the Underwriters that:
(a) Immediately following the execution of this Agreement, the Seller
will prepare a Prospectus Supplement setting forth the amount of Notes covered
thereby and the terms thereof not otherwise specified in the Basic Prospectus,
the price at which such Notes are to be purchased by the Underwriters, the
initial public offering price, the selling concessions and allowances, and such
other information as the Seller deems appropriate and shall furnish a copy to
the Representative in accordance with Section 5(b) of this Agreement. The Seller
will transmit the Prospectus including such Prospectus Supplement to the
Commission pursuant to Rule 424(b) by a means reasonably calculated to result in
filing that complies with all applicable provisions of Rule 424(b). The Seller
will advise the Representative promptly of any such filing pursuant to Rule
424(b).
(b) Prior to the termination of the offering of the Notes, the Seller
will not file any amendment of the Registration Statement or supplement to the
Prospectus unless the Seller has furnished the Representative with a copy for
its review prior to filing and will not file any such proposed amendment or
supplement to which the Representative reasonably objects. Subject to the
foregoing sentence, if filing of the Prospectus is otherwise required under Rule
424(b), the Seller will file the Prospectus, properly completed, and any
supplement thereto, with the Commission pursuant to and in accordance with the
applicable paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representative of such timely filing.
(c) The Seller will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement as filed or the
Prospectus, and will not effect such amendment or supplement without the
Representative's consent, which consent will not unreasonably be withheld. The
Seller will also advise the Representative promptly of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for any additional information and the Seller will also advise
the Representative promptly of any amendment or supplement to the Registration
Statement or the Prospectus and of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threat of any proceeding for that purpose, and the Seller will
use its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible the lifting of any issued stop order.
(d) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs 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 to make the
statements therein, in the light of the circumstances under
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which they were made, not misleading, or if it is necessary at any time to amend
the Registration Statement or supplement the Prospectus to comply with the Act
or the Exchange Act or the respective Rules and Regulations thereunder, the
Seller promptly will notify the Representative and will prepare and file, or
cause to be prepared and filed, with the Commission, subject to the first
sentence of paragraph (b) of this Section 5, an amendment or supplement that
will correct such statement or omission, or effect such compliance. Any such
filing shall not operate as a waiver or limitation on any right of any
Underwriter hereunder.
(e) As soon as practicable, but not later than fourteen months after
the original effective date of the Registration Statement, the Seller will cause
the Trust to make generally available to Noteholders an earnings statement of
the Trust covering a period of at least twelve months beginning after the
Effective Date of the Registration Statement that will satisfy the provisions of
Section 11(a) of the Act.
(f) The Seller will furnish to the Underwriters copies of the
Registration Statement (one of which will be signed and will include all
exhibits), each related preliminary prospectus or prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in each case as
soon as available and in such quantities as the Underwriters request.
(g) The Seller will assist the Representative in arranging for the
qualification of the Notes for sale and determination of their eligibility for
investment under the laws of such jurisdictions in the United States, or as
necessary to qualify for Euroclear Bank S.A./N.V. or Clearstream Banking,
societe anonyme, as the Representative designates and will continue to assist
the Representative in maintaining such qualifications in effect so long as
required for the distribution; provided, however, that neither the Seller nor
CFSC shall be required to qualify to do business in any jurisdiction where it is
now not qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction in which it is now not subject
to service of process.
(h) For a period from the date of this Agreement until the retirement
of the Notes, or until such time as the Underwriters shall cease to maintain a
secondary market in the Notes, whichever occurs first, the Seller will deliver
to the Representative the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the Owner Trustee
or the Indenture Trustee pursuant to the Sale and Servicing Agreement, as soon
as such statements and reports are furnished to the Owner Trustee or the
Indenture Trustee.
(i) So long as any of the Notes are outstanding, the Seller will
furnish to the Representative (i) as soon as practicable after the end of the
fiscal year all documents required to be distributed to Noteholders or filed
with the Commission pursuant to the Exchange Act or any order of the Commission
thereunder and (ii) from time to time, any other information concerning the
Seller filed with any government or regulatory authority which is otherwise
publicly available, as the Representative may reasonably request.
(j) On or before the Closing Date, the Seller shall cause the
computer records of the Seller and the Servicer relating to the Receivables to
be marked to show the Trust's
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absolute ownership of the Receivables, and from and after the Closing Date
neither the Seller nor the Servicer shall take any action inconsistent with the
Trust's ownership of such Receivables, other than as permitted by the Sale and
Servicing Agreement.
(k) To the extent, if any, that the rating provided with respect to
the Notes by the rating agency or agencies that initially rate the Notes is
conditional upon the furnishing of documents or the taking of any other actions
by the Seller, the Seller shall furnish such documents and take any such other
actions.
(l) For the period beginning on the date of this Agreement and ending
seven days after the Closing Date, unless waived by the Underwriters, none of
the Seller, CFSC or any trust originated, directly or indirectly, by the Seller
or CFSC will offer to sell or sell notes (other than the Notes) collateralized
by, or certificates (other than the Certificates) evidencing an ownership
interest in, receivables generated pursuant to fixed-rate retail installment
sale contracts or finance leases and secured by equipment similar to the
Financed Equipment.
(m) The Seller and CFSC each will deliver to the Representative, all
opinions, certificates and other documents or information delivered to the Owner
Trustee and the Indenture Trustee at the time such opinions, certificates and
other documents or information are delivered to the Owner Trustee or the
Indenture Trustee pursuant to the Sale and Servicing Agreement and the Purchase
Agreement with respect to perfection and priority of CFSC's interest in the
Receivables.
6. Payment of Expenses. The Seller will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the printing
and filing of the Registration Statement as originally filed and of each
amendment thereto, (ii) the preparation, issuance and delivery of the Notes to
the Underwriters, (iii) the fees and disbursements of the Seller's counsel and
accountants, (iv) the qualification of the Notes under securities laws in
accordance with the provisions of Section 5(g) of this Agreement, including
filing fees and the fees and disbursements of counsel in connection therewith
and in connection with the preparation of any blue sky or legal investment
survey, (v) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, of the
Preliminary Prospectus and of each amendment or supplement thereto, (vi) the
printing and delivery to the Underwriters of copies of any blue sky or legal
investment survey prepared in connection with the Notes, (vii) any fees charged
by rating agencies for the rating of the Notes, (viii) the fees and expenses, if
any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc. and (ix) the fees and expenses of Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP in its role as counsel to the Trust incurred as a result of
providing the opinions required by Section 7(f) hereof.
7. Conditions of the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Class A Notes will be subject to
the accuracy of the representations and warranties on the part of the Seller
herein, to the accuracy of the statements of officers of the Seller made
pursuant to the provisions hereof, to the performance by the Seller of its
obligations hereunder and to the following additional conditions precedent:
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(a) The Registration Statement shall have become effective prior to
the Execution Time, and prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Seller or the Representative, shall be contemplated by the Commission or by
any authority administering any state securities or blue sky law.
(b) The Prospectus and any supplements thereto shall have been filed
(if required) with the Commission in accordance with the Rules and Regulations
and Section 5(a) hereof.
(c) On or prior to the date of this Agreement and on or prior to the
Closing Date, the Representative shall have received a letter or letters, dated
as of the date of this Agreement and as of the Closing Date, respectively, of
PricewaterhouseCoopers LLP, independent public accountants, substantially in the
form of the drafts to which the Representative has previously agreed and
otherwise in form and substance satisfactory to the Representative and its
counsel.
(d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Trust, the Seller or the Servicer which, in the judgment of the
Underwriters, materially impairs the investment quality of the Notes or makes it
impractical or inadvisable to market the Notes; (ii) any suspension or
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange; (iii) any suspension
of trading of any securities of Caterpillar or CFSC on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by Federal,
Delaware or New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress, or any other substantial national or international calamity or
emergency if, in the judgment of the Underwriters, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the Notes.
(e) The Representative shall have received opinions of Xxxx X. Xxxxx,
General Counsel of CFSC, Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP and Xxxxxx Xxxxxxx
Xxxxxx & Xxxxx, PLLC, counsel to CFSC, the Seller and the Trust and such other
counsel acceptable to the Underwriters addressed to the Representative, the
Owner Trustee and the Indenture Trustee, dated the Closing Date and satisfactory
in form and substance to the Representative and its counsel, substantially to
the effect that:
(i) CFSC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware
with full corporate power and authority to own its properties and
conduct its business, as presently owned and conducted by it, and to
enter into and perform its obligations under the Underwriting
Agreements, the Administration Agreement, the Purchase Agreement, the
Sale and Servicing Agreement and the Custodial Agreement and had at all
times, and now has, the power, authority and legal right to acquire, own
and sell the Receivables.
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(ii) The Seller has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Nevada
with full corporate power and authority to own its properties and
conduct its business, as presently owned and conducted by it, and to
enter into and perform its obligations under the Underwriting
Agreements, the Purchase Agreement, the Trust Agreement, the Sale and
Servicing Agreement, the Administration Agreement and the Custodial
Agreement and had at all times, and now has, the power, authority and
legal right to acquire, own and sell the Receivables.
(iii) CFSC is duly qualified to do business and is in good
standing, and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to qualify or to obtain such license or
approval would render any Receivable unenforceable by the Seller, the
Owner Trustee or the Indenture Trustee.
(iv) The Seller is duly qualified to do business and is in good
standing, and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to qualify or to obtain such license or
approval would have a material adverse effect on the Receivables as a
whole.
(v)The direction by the Seller to the Owner Trustee to
authenticate the Certificates has been duly authorized by the Seller
and, when the Certificates have been duly executed, authenticated and
delivered by the Owner Trustee in accordance with the Trust Agreement
and delivered to and paid for by the Seller, will be legally issued,
fully paid and nonassessable obligations of the Trust and will be
entitled to the benefits of the Trust Agreement.
(vi) The direction by CFSC to the Indenture Trustee to
authenticate the Notes has been duly authorized by CFSC, and, when the
Notes have been duly executed and delivered by the Owner Trustee on
behalf of the Trust, authenticated by the Indenture Trustee in
accordance with the Indenture and delivered and paid for pursuant to the
Underwriting Agreements, the Notes will be duly issued, will constitute
legal, valid and binding obligations of the Trust enforceable against
the Trust in accordance with their terms and will be entitled to the
benefits and security afforded by the Indenture, except (x) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and (y) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(vii) Each of the Purchase Agreement, the Trust Agreement, the
Sale and Servicing Agreement, the Administration Agreement and the
Custodial Agreement has been duly authorized, executed and delivered by
the Seller, and is a legal, valid and binding obligation of the Seller
enforceable against the Seller in accordance with its terms, except (x)
the enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or
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other similar laws now or hereafter in effect relating to creditors'
rights and (y) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and
to the discretion of the court before which any proceeding therefor may
be brought.
(viii) The Underwriting Agreements have been duly authorized,
executed and delivered by each of the Seller and CFSC.
(ix) Each of the Administration Agreement, the Purchase Agreement,
the Sale and Servicing Agreement and the Custodial Agreement has been
duly authorized, executed and delivered by CFSC and is a legal, valid
and binding obligation of CFSC enforceable against CFSC in accordance
with its terms, except (x) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights and (y) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(x) Neither the sale, transfer, assignment, set over and
conveyance of the Receivables from CFSC to the Seller, nor the sale,
transfer, assignment, set over and conveyance of the Receivables from
the Seller to the Trust, nor the grant of a security interest in the
Trust Estate by the Trust to the Indenture Trustee, nor the assignment
by the Seller of its right, title and interest in the Purchase Agreement
to the Trust, nor the grant of the security interest in the Collateral
to the Indenture Trustee pursuant to the Indenture, nor the execution
and delivery of the Underwriting Agreements, the Purchase Agreement, the
Trust Agreement, the Sale and Servicing Agreement, the Administration
Agreement or the Custodial Agreement by the Seller, nor the execution of
the Underwriting Agreements, the Administration Agreement, the Purchase
Agreement, the Sale and Servicing Agreement or the Custodial Agreement
by CFSC, nor the consummation of any transactions contemplated in the
Underwriting Agreements, the Purchase Agreement, the Trust Agreement,
the Indenture, the Administration Agreement, the Sale and Servicing
Agreement or the Custodial Agreement (such agreements, excluding the
Underwriting Agreements, being for purposes of this clause (e) and
elsewhere herein, as applicable, collectively, the "Basic Documents"),
nor the fulfillment of the terms thereof by CFSC, the Seller or the
Trust, as the case may be, will (x) conflict with, or result in a
breach, violation or acceleration of, or constitute a default under, any
term or provision of the certificate of incorporation or bylaws of CFSC
or the Seller or, to the best of such counsel's knowledge after due
inquiry, of any indenture or other agreement or instrument to which CFSC
or the Seller is a party or by which either of them is bound, or (y)
result in a violation of or contravene the terms of any statute, order
or regulation applicable to CFSC or the Seller of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over either of them.
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(xi) There are no actions, proceedings or investigations pending
or, to the best of such counsel's knowledge, threatened before any
court, administrative agency, or other tribunal (1) asserting the
invalidity of the Trust or any of the Basic Documents, (2) seeking to
prevent the consummation of any of the transactions contemplated by any
of the Basic Documents or the execution and delivery thereof, or (3)
that could reasonably be expected to materially and adversely affect the
performance (A) by CFSC of its obligations under, or the validity or
enforceability of, the Underwriting Agreements, the Administration
Agreement, the Purchase Agreement, the Sale and Servicing Agreement or
the Custodial Agreement, (B) by the Seller of its obligations under, or
the validity or enforceability of, the Underwriting Agreements, the
Purchase Agreement, the Trust Agreement, the Sale and Servicing
Agreement or the Custodial Agreement, or (C) by the Servicer of its
obligations under, or the validity or enforceability of, the Sale and
Servicing Agreement.
(xii) To the best knowledge of such counsel, no default exists and
no event has occurred which, with notice, lapse of time or both, would
constitute a default in the due performance and observance of any term,
covenant or condition of any agreement to which CFSC or the Seller is a
party or by which either of them is bound, which default is or would
have a material adverse effect on the financial condition, earnings,
business or properties of CFSC and its subsidiaries, taken as a whole.
(xiii) The Assignment (as defined in the Purchase Agreement) dated
as of the Closing Date from CFSC to the Seller has been duly authorized,
executed and delivered by CFSC.
(xiv) Should CFSC become the debtor in a case under the Bankruptcy
Code, if the matter were properly briefed and presented to a court, the
court should hold that (1) the transfer of the Receivables by CFSC to
the Seller in the manner set forth in the Purchase Agreement would
constitute an absolute sale of the Receivables, rather than a borrowing
by CFSC secured by the Receivables, and thus (2) the Seller's rights to
the Receivables would not be impaired by the operation of Section 362(a)
of the Bankruptcy Code.
(xv) Should CFSC become the debtor in a case under the Bankruptcy
Code, and the Seller would not otherwise properly be a debtor in a case
under the Bankruptcy Code, and if the matter were properly briefed and
presented to a court exercising bankruptcy jurisdiction, the court,
exercising reasonable judgment after full consideration of all relevant
factors, should not order, over the objection of the Certificateholders
or the Noteholders, the substantive consolidation of the assets and
liabilities of the Seller with those of CFSC based on any legal theories
currently subscribed to by federal courts exercising bankruptcy
jurisdiction.
(xvi) Such counsel is familiar with the Servicer's standard
operating procedures relating to the Servicer's acquisition of a
perfected first
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priority security interest in the equipment financed by the Servicer
pursuant to equipment installment sale contracts in the ordinary course
of the Servicer's business. Assuming that the Servicer's standard
procedures have been followed with respect to the perfection of security
interests in the Financed Equipment (and such counsel has no reason to
believe that such procedures have not been followed), the Servicer has
acquired or will acquire a perfected first priority security interest in
the Financed Equipment.
(xvii) The Purchase Agreement grants to the Seller a valid
security interest in CFSC's rights in the Receivables and the proceeds
thereof. The Sale and Servicing Agreement grants to the Trust a valid
security interest in the Seller's rights in the Receivables and the
proceeds thereof. The Indenture grants to the Indenture Trustee a valid
security interest in the Trust's rights in the Receivables and the
proceeds thereof.
(xviii) The Receivables are chattel paper as defined in the UCC.
(xix) Immediately prior to the sale of the Receivables and the
proceeds thereof to the Seller, CFSC had a first priority perfected
security interest in the Receivables and the proceeds thereof.
Immediately prior to the transfer of the Receivables and the proceeds
thereof to the Trust, the Seller had a first priority perfected security
interest in the Receivables and the proceeds thereof. Immediately prior
to the transfer of the Receivables and the proceeds thereof to the
Indenture Trustee, the Trust had a first priority perfected security
interest in the Receivables and the proceeds thereof. The Indenture
Trustee has a first priority perfected security interest in the
Receivables and the proceeds thereof. The opinion covered by this
paragraph (xix) shall be subject to customary UCC exceptions and
qualifications.
(xx) The Sale and Servicing Agreement, the Trust Agreement, the
Indenture, the Administration Agreement and the Purchase Agreement
conform in all material respects with the description thereof contained
in the Prospectus and any supplement thereto.
(xxi) The statements in the Prospectus under the headings "Risk
Factors -- The notes may suffer losses if the interests of other persons
in the receivables are superior to the trust's interest" and "Certain
Legal Aspects of the Receivables" to the extent they constitute matters
of law or legal conclusions with respect thereto, are correct in all
material respects.
(xxii) The statements contained in the Prospectus and any
supplement thereto under the headings "Description of the Notes,"
"Description of the Certificates" and "Description of the Transfer and
Servicing Agreements," insofar as such statements constitute a summary
of the Notes, the Certificates, the Indenture, the Administration
Agreement, the Sale and Servicing Agreement, the
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Purchase Agreement and the Trust Agreement, are a fair and accurate
summary of the matters referred to therein.
(xxiii) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the
consummation of the transactions contemplated in the Basic Documents,
except for such filings with respect to the transfer of the Receivables
to the Seller pursuant to the Purchase Agreement and the transfer of the
Receivables to the Trust pursuant to the Sale and Servicing Agreement
and as may be required under state securities or Blue Sky laws of
various jurisdictions.
(xxiv) All actions required to be taken and all filings required
to be made under the Act prior to the sale of the Notes have been duly
taken or made.
(xxv) The Trust Agreement is not required to be qualified under
the Trust Indenture Act and the Trust is not required to be registered
under the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(xxvi) The Indenture has been duly qualified under the Trust
Indenture Act.
(xxvii) The Seller is not, and will not as a result of the offer
and sale of the Notes as contemplated in the Prospectus and the
Underwriting Agreements become, an "investment company" as defined in
the Investment Company Act or a company "controlled by" an "investment
company" within the meaning of the Investment Company Act.
(xxviii) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statement, other than those
disclosed therein.
(xxix) The Registration Statement has become effective under the
Act, any required filing of any Preliminary Prospectus and the
Prospectus and any supplements thereto pursuant to Rule 424(b) has been
or will be made in the manner and within the time period required by
Rule 424(b), and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the Registration Statement
and the Prospectus, and each amendment or supplement thereto, as of
their respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act, the Exchange Act,
the Trust Indenture Act and the Rules and Regulations.
(xxx) Nothing has come to such counsel's attention that would lead
such counsel to believe that the Registration Statement or the
Prospectus or any amendment or supplement thereto as of the respective
dates
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thereof and as of the Closing Date (other than the financial statements
and other financial and statistical information contained therein, as to
which such counsel need not express any view) contains an untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements therein not misleading.
(xxxi) The Trust has been duly formed and is validly existing as a
statutory business trust and is in good standing under the laws of the
State of Delaware, with full power and authority to execute, deliver and
perform its obligations under the Sale and Servicing Agreement, the
Indenture, the Custodial Agreement, the Administration Agreement, the
Notes and the Certificates.
(xxxii) The Indenture, the Sale and Servicing Agreement, the
Custodial Agreement and the Administration Agreement have been duly
authorized and, when duly executed and delivered by the Owner Trustee on
behalf of the Trust, will constitute the legal, valid and binding
obligations of the Trust, enforceable against the Trust in accordance
with their terms, except (x) the enforceability thereof may be subject
to bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights and (y)
the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(xxxiii) The Servicer has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with full corporate power and authority to own its
properties and conduct its business, as presently conducted by it, and
to enter into and perform its obligations under the Sale and Servicing
Agreement, and had at all relevant times, and now has, the power,
authority and legal right to acquire, own, sell and service the
Receivables.
(xxxiv) The Servicer is duly qualified to do business and is in
good standing, and has obtained all necessary licenses and approvals in
each jurisdiction in which failure to qualify or to obtain such license
or approval would render any Receivable unenforceable by the Seller, the
Owner Trustee or the Indenture Trustee.
(xxxv) The Sale and Servicing Agreement has been duly authorized,
executed and delivered by the Servicer, and is the legal, valid and
binding obligation of the Servicer enforceable against the Servicer in
accordance with its terms, except (x) the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
and (y) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be
brought.
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(xxxvi) Neither the execution and delivery of the Sale and
Servicing Agreement by the Servicer, nor the consummation of any
transactions contemplated in the Underwriting Agreements or the Basic
Documents, nor the fulfillment of the terms thereof by the Servicer will
conflict with, or result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the certificate of
incorporation or bylaws of the Servicer or of any indenture or other
agreement or instrument to which the Servicer is a party or by which it
is bound, or result in a violation of or contravene the terms of any
statute, order or regulation applicable to the Servicer of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it.
(xxxvii) To the best knowledge of such counsel, no default exists
and no event has occurred which, with notice, lapse of time or both,
would constitute a default in the due performance and observance of any
term, covenant or condition of any agreement to which the Servicer is a
party or by which it is bound, which default is or would have a material
adverse effect on the financial condition, earnings, business or
properties of the Servicer and its subsidiaries, taken as a whole.
Such counsel shall also opine as to such other matters as the
Underwriters may reasonably request. The opinions set forth in clauses (xiv),
(xv) and (xix) of this Section 7(e) shall be given by Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP or such other outside counsel to CFSC, the Seller and the Trust as
may be acceptable to the Underwriters.
(f) The Representative shall have received an opinion addressed to it
of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP in its capacity as Special Tax Counsel for
the Trust, dated the Closing Date, substantially to the effect that the
statements in the Prospectus under the headings "Summary of Terms of the Notes
-- Tax Status" (to the extent relating to Federal income tax consequences) and
"Federal Income Tax Consequences" accurately describe the material Federal
income tax consequences to holders of the Notes, and the statements in the
Prospectus under the heading "ERISA Considerations," to the extent that they
constitute statements of matters of law or legal conclusions with respect
thereto, have been prepared or reviewed by such counsel and accurately describe
the material consequences to holders of the Notes under ERISA. Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP, in its capacity as Special Counsel to the Trust,
shall have delivered an opinion with respect to the characterization of the
transfer of the Receivables.
(g) The Representative shall have received an opinion addressed to it
of Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, PLLC in its capacity as Special Tennessee Tax
Counsel for the Trust, dated the Closing Date, substantially to the effect that
the statements in the Prospectus under the heading "Summary of Terms of the
Notes -- Tax Status" (to the extent relating to Tennessee income tax
consequences) and in the Prospectus under the heading "Certain State Income Tax
Considerations" accurately describe the material income tax consequences in the
State of Tennessee to holders of the Notes.
(h) The Representative shall have received an opinion addressed to it
of Xxxxxx Xxxxxx & Xxxxxxx in its capacity as Special Nevada Tax Counsel for the
Trust, dated the
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Closing Date, substantially to the effect that the Trust would not be subject to
taxation in Nevada.
(i) The Representative shall have received an opinion addressed to it
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP in its capacity as Special Counsel
to the Underwriters, dated the Closing Date, with respect to the validity of the
Securities and such other related matters as the Representative shall require
and the Seller shall have furnished or caused to be furnished to such counsel
such documents as they may reasonably request for the purpose of enabling them
to pass upon such matters.
(j) The Representative shall have received an opinion addressed to
it, the Seller and the Servicer of The Law Department of the Indenture Trustee,
and such other counsel acceptable to the Representative and its counsel, dated
the Closing Date and satisfactory in form and substance to the Representative
and its counsel, substantially to the effect that:
(i) The Indenture Trustee is a national banking association duly
organized and validly existing under the Federal law of the United
States of America.
(ii) The Indenture Trustee has the full corporate trust power to
accept the office of trustee under the Indenture and to enter into and
perform its obligations under the Indenture, the Sale and Servicing
Agreement, the Custodial Agreement and the Administration Agreement.
(iii) The execution and delivery of the Indenture, the Custodial
Agreement and the Administration Agreement and the acknowledgment and
acceptance of the Sale and Servicing Agreement and the performance by
the Indenture Trustee of its obligations under the Indenture, the
Custodial Agreement, the Sale and Servicing Agreement and the
Administration Agreement have been duly authorized by all necessary
corporate action of the Indenture Trustee and each has been duly
executed and delivered by the Indenture Trustee.
(iv) The Indenture, the Sale and Servicing Agreement, the
Custodial Agreement and the Administration Agreement constitute valid
and binding obligations of the Indenture Trustee enforceable against the
Indenture Trustee in accordance with their terms under the laws of the
State of New York and the Federal law of the United States of America.
(v) The execution and delivery by the Indenture Trustee of the
Indenture, the Custodial Agreement and the Administration Agreement and
the acknowledgment and acceptance of the Sale and Servicing Agreement do
not require any consent, approval or authorization of, or any
registration or filing with, any New York or United States Federal
governmental authority, other than the filing of Form T-1 under the
Trust Indenture Act.
(vi) Each of the Notes has been duly authenticated by the
Indenture Trustee.
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(vii) Neither the consummation by the Indenture Trustee of the
transactions contemplated in the Sale and Servicing Agreement, the
Indenture, the Custodial Agreement or the Administration Agreement, nor
the fulfillment of the terms thereof by the Indenture Trustee, will
conflict with, result in a breach or violation of, or constitute a
default under any law or the charter, bylaws or other organizational
documents of the Indenture Trustee or the terms of any indenture or
other agreement or instrument known to such counsel and to which the
Indenture Trustee is a party or is bound or any judgment, order or
decree known to such counsel to be applicable to the Indenture Trustee
of any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Indenture Trustee.
(viii) To the best of such counsel's knowledge and belief, there
is no action, suit or proceeding pending or threatened against the
Indenture Trustee (as trustee under the Indenture or in its individual
capacity) before or by any governmental authority that if adversely
decided, would materially adversely affect the ability of the Indenture
Trustee to perform its obligations under the Indenture, the Custodial
Agreement, the Sale and Servicing Agreement or the Administration
Agreement.
(ix) The execution, delivery and performance by the Indenture
Trustee of the Sale and Servicing Agreement, the Indenture, the
Custodial Agreement and the Administration Agreement will not subject
any of the property or assets of the Trust or any portion thereof, to
any liens that are unrelated to the transactions contemplated in such
agreements.
(k) The Representative shall have received an opinion addressed to
it, the Seller and the Servicer of Pryor, Cashman, Xxxxxxx & Xxxxx, counsel to
the Owner Trustee, and such other counsel acceptable to the Representative and
its counsel, dated the Closing Date and satisfactory in form and substance to
the Representative and its counsel, when taken together, substantially to the
effect that:
(i) The Owner Trustee has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of the
State of Delaware.
(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 Indenture, the
Custodial Agreement, the Sale and Servicing Agreement and the
Administration Agreement.
(iii) The execution and delivery of the Trust Agreement and, on
behalf of the Trust, of the Indenture, the Custodial Agreement, the Sale
and Servicing Agreement, the Administration Agreement, the Certificates
and the Notes and the performance by the Owner Trustee of its
obligations under the Trust Agreement, the Indenture, the Custodial
Agreement, the Sale and Servicing Agreement and the Administration
Agreement have been duly authorized by all
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necessary corporate action of the Owner Trustee and each has been duly
executed and delivered by the Owner Trustee.
(iv) The Trust Agreement, the Sale and Servicing Agreement, the
Indenture, the Custodial Agreement and the Administration Agreement
constitute valid and binding obligations of the Owner Trustee
enforceable against the Owner Trustee in accordance with their terms
under the laws of the State of New York and the State of Delaware and
the Federal law of the United States of America.
(v) The execution and delivery by the Owner Trustee of the Trust
Agreement and, on behalf of the Trust, of the Indenture, the Sale and
Servicing Agreement, the Custodial Agreement and the Administration
Agreement do not require any consent, approval or authorization of, or
any registration or filing with, any Delaware or United States Federal
governmental authority having jurisdiction over the trust power of the
Owner Trustee, other than those consents, approvals or authorizations as
have been obtained and the filing of the Certificate of Trust with the
Secretary of State of the State of Delaware.
(vi) The Owner Trustee has duly executed, authenticated and
delivered the Certificates, and has duly executed and delivered the
Notes, issued on the Closing Date on behalf of the Trust.
(vii) The execution and delivery by the Owner Trustee of the Trust
Agreement and, on behalf of the Trust, the Sale and Servicing Agreement,
the Indenture, the Custodial Agreement and the Administration Agreement
and the performance by the Owner Trustee of its obligations thereunder,
do not conflict with, result in a breach or violation of or constitute a
default under, the articles of association or bylaws of the Owner
Trustee.
(l) The Representative shall have received certificates dated the
Closing Date of any two of the Chairman of the Board, the President, the
Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer, the principal financial officer or the principal accounting officer
of each of the Seller and CFSC, in its individual capacity and as Servicer, in
which such officers shall state that, to the best of their knowledge after
reasonable investigation, (i) the representations and warranties of the Seller,
CFSC and/or the Servicer, as the case may be, contained in this Agreement, the
Trust Agreement, Purchase Agreement and the Sale and Servicing Agreement, as
applicable, are true and correct, that the Seller, CFSC and/or the Servicer, as
the case may be, has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied under such agreements at or prior to
the Closing Date, that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission and (ii) no material
adverse change in or affecting particularly the business or properties of the
Trust, the Seller, CFSC and/or the Servicer, as the case may be, has occurred.
(m) The Representative shall have received evidence satisfactory to
it that, on or before the Closing Date, the Custodian, on behalf of the Seller,
the Trust and the
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Indenture Trustee has taken possession of the applicable Receivables reflecting
the transfer of the interest of CFSC in such Receivables and the proceeds
thereof to the Seller, and the transfer of the interest of the Seller in such
Receivables and the proceeds thereof to the Trust and the grant of the security
interest by the Trust in such Receivables and the proceeds thereof to the
Indenture Trustee.
(n) The Class A-1 Notes shall have been rated "A-1+" by Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P")
and "P-1" by Xxxxx'x Investors Service, Inc. ("Moody's"), the Class A-2 Notes
shall have been rated "AAA" by S&P and "Aaa" by Moody's and the Class A-3 Notes
shall have been rated "AAA" by S&P and "Aaa" by Moody's.
(o) The issuance of the Notes and the Certificates shall not have
resulted in a reduction or withdrawal by any Rating Agency of the current rating
of any outstanding securities issued by the Seller or any of its affiliates or
by any trust established by the Seller or any of its affiliates.
(p) On the Closing Date, $15,527,000 aggregate principal amount of
Class B Notes shall have been issued and sold and $12,422,797 aggregate
principal amount of the Certificates shall have been issued and purchased by the
Seller.
(q) The Seller will provide or cause to be provided to the
Representative such conformed copies of such opinions, certificates, letters and
documents as it reasonably requests.
8. Indemnification and Contribution. (a) The Seller and CFSC will
jointly and severally, indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act against any losses, claims, damages, expenses or liabilities, joint or
several, to which such Underwriter or person may become subject, under the Act
or otherwise, insofar as such losses, claims, damages, expenses or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement (including any Computational Materials, ABS Term Sheets,
Structural Term Sheets and Collateral Term Sheets (as defined in Section 13 of
this Agreement) approved for use by the Seller and CFSC), the Prospectus, or any
amendment or supplement thereto, any related preliminary prospectus, 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 not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, expense liability or
action; provided, however, that the Seller and CFSC will not be liable in any
such case to the extent that any such loss, claim, damage, expense or liability
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the Seller by any
Underwriter through the Representative specifically for use therein; and
provided, further, that the Seller and CFSC shall not be liable to any
Underwriter or any person controlling any Underwriter under the indemnity
agreement in this subsection (a) with respect to any of such documents to the
extent that any such loss, claim, damage, expense or liability of the
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Underwriters or such controlling person results from the fact that such
Underwriter sold Notes to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the Prospectus or of
the Prospectus as then amended or supplemented (excluding documents incorporated
by reference), whichever is most recent, if the Seller has previously furnished
copies thereof to such Underwriter.
The indemnity agreement in this subsection (a) shall be in addition to
any liability which the Seller or CFSC may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act.
(b) Each Underwriter will indemnify and hold harmless the Seller and
CFSC against any losses, claims, damages, expenses or liabilities to which the
Seller and CFSC 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 or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein 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 reliance upon and in conformity with written information
furnished to the Seller or CFSC by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Seller or CFSC in connection with investigating or
defending any such action or claim.
The indemnity agreement in this subsection (b) shall be in addition to
any liability which each Underwriter may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls the Seller
or CFSC within the meaning of the Act.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) of written notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof, and in the event that such indemnified party shall not so
notify the indemnifying party within 30 days following receipt of any such
notice by such indemnified party, the indemnifying party shall have no further
liability under such subsection to such indemnified party unless the
indemnifying party shall have received other notice addressed and delivered in
the manner provided in Section 12 hereof of the commencement of such action; but
the omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party in its
reasonable judgment, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under such
subsection for any legal or other expenses
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subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages, expenses 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, expenses or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Seller and CFSC on the one hand and the Underwriters on
the other from the offering of the Notes. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law, 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 Seller and CFSC on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, expenses or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative benefits received by the Seller and CFSC
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 (before deducting
expenses) received by the Seller and CFSC bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus, as amended or
supplemented, with respect to the Notes. 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 Seller and CFSC on the one
hand or by the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission, including, with respect to any Underwriter, the
extent to which such losses, claims, damages, expenses or liabilities (or
actions in respect thereof) result from the fact that such Underwriter sold such
Notes to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or the Prospectus as
then supplemented or amended (excluding documents incorporated by reference),
whichever is more recent, if the Seller has previously furnished copies thereof
to such Underwriter. The Seller and CFSC and the Underwriters, severally and not
jointly, agree that it would not be just and equitable if contribution pursuant
to this subsection (d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid by an indemnified
party as a result of the losses, claims, damages, or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
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9. Defaults of Underwriters. If any Underwriter or Underwriters default
on their obligations to purchase the Class A Notes hereunder on the Closing Date
and the aggregate principal amount of the Class A Notes that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of the Class A Notes, the Representative may make
arrangements satisfactory to the Representative and the Seller for the purchase
of such Class A Notes by other persons, including any of the Underwriters, but
if no such arrangements are made by the Closing Date, the nondefaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Class A Notes that such defaulting
Underwriter or Underwriters agreed but failed to purchase. If an Underwriter or
Underwriters so default and the aggregate principal amount of the Class A Notes
with respect to such default or defaults exceeds 10% of the total principal
amount of the Class A Notes and arrangements satisfactory to the Representative
and the Seller for the purchase of such Class A Notes by other persons are not
made within 24 hours after such default, this Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Seller, except as
provided in Section 11 of this Agreement. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein will relieve a defaulting Underwriter from liability
for its default.
10. No Bankruptcy Petition. Each Underwriter and CFSC covenants and
agrees that, prior to the date which is one year and one day after the payment
in full of all securities issued by the Seller or by a trust for which the
Seller was the depositor which securities were rated by any nationally
recognized statistical rating organization, it will not institute against, or
join any other person in instituting against, the Seller any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
11. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Seller or CFSC or any of their officers and each of the Underwriters set forth
in or made pursuant to this Agreement or contained in certificates of officers
of the Seller submitted pursuant hereto shall remain operative and in full force
and effect, regardless of (i) any termination of this Agreement, (ii) any
investigation or statement as to the results thereof made by or on behalf of any
Underwriter or of the Seller or any of their respective representatives,
officers or directors or any controlling person, and (iii) delivery of and
payment for the Class A Notes. If for any reason the purchase of the Class A
Notes by the Underwriters is not consummated, the Seller shall remain
responsible for the expenses to be paid or reimbursed by the Seller pursuant to
Section 6 of this Agreement and the respective obligations of the Seller and the
Underwriters pursuant to Section 8 of this Agreement shall remain in effect. If
for any reason the purchase of the Class A Notes by the Underwriters is not
consummated (other than because of a failure to satisfy the conditions set forth
in items (ii), (iv) or (v) of Section 7(d) of this Agreement), the Seller will
reimburse any Underwriter, upon demand, for all reasonable out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by it
in connection with the offering of the Class A Notes. Nothing contained in this
Section 11 shall limit the recourse of the Seller against the Underwriters.
12. Notices. All communications hereunder will be in writing and if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representative at 85
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Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx Xxxxxxxx; if sent to
the Seller, will be mailed, delivered or telegraphed, and confirmed to it at
Caterpillar Financial Funding Corporation, 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000,
Xxx Xxxxx, Xxxxxx 00000, Attention: Secretary; if sent to CFSC, will be mailed,
delivered or telegraphed, and confirmed to it at Caterpillar Financial Services
Corporation, 0000 Xxxx Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8 of this Agreement will be mailed, delivered or telegraphed and
confirmed to such Underwriter. Any such notice will take effect at the time of
receipt.
13. Computational Materials; Term Sheets. (a) Each Underwriter
represents and warrants to the Seller that (i) it has not and will not use any
information that constitutes "Computational Materials" as defined in the
no-action letter, dated May 20, 1994, issued by the Commission to Xxxxxx,
Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx
Structured Asset Corporation (as made generally applicable to other issuers and
underwriters by the Commission in the response to the request of the Public
Securities Association, dated May 24, 1994) (the "Xxxxxx/PSA No-Action Letter"),
in connection with the offering of the Class A Notes and (ii) it has not and
will not use any information that constitutes "ABS Term Sheets," "Structural
Term Sheets" or "Collateral Term Sheets," each as defined in the no-action
letter, dated February 13, 1995, addressed by the Commission to the Public
Securities Association (the "PSA No-Action Letter," and together with the
Xxxxxx/PSA No-Action Letter, the "No Action Letters"), in connection with the
offering of the Class A Notes, in each case without the prior written approval
of the Seller and CFSC.
(a) The Seller represents and warrants that it has filed with the
Commission any Computational Materials, ABS Term Sheets, Structural Term Sheets
and Collateral Term Sheets approved by the Seller and CFSC on one or more
current reports on Form 8-K on or before the date indicated for filing pursuant
to the No-Action Letters.
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 of this
Agreement, and no other person will have any right or obligations hereunder. No
purchaser of Class A Notes from any Underwriter shall be deemed to be a
successor of such Underwriter merely because of such purchase.
15. Representation. The Representative will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representative will be binding
upon all of the Underwriters.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
17. Applicable Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the Seller, CFSC and the several
Underwriters in accordance with the terms of this Class A Note Underwriting
Agreement.
Very truly yours,
CATERPILLAR FINANCIAL FUNDING
CORPORATION
By: /s/ XXXX X. XXXXX
---------------------------------
Name: Xxxx X. Xxxxx
Title: Secretary
CATERPILLAR FINANCIAL SERVICES
CORPORATION
By: /s/ XXXX X. XXXXX
---------------------------------
Name: Xxxx X. Xxxxx
Title: Secretary
The foregoing Class A Underwriting
Agreement is hereby confirmed and
accepted as of the date first written above.
XXXXXXX, XXXXX & CO.,
on behalf of itself and as Representative
of the Several Underwriters
By: /s/ XXXXXXX, SACHS & CO.
-------------------------------
(Xxxxxxx, Xxxxx & Co.)
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SCHEDULE I
Principal Amount of Principal Amount of Principal Amount of
Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes
----------- ------------------- ------------------- -------------------
Xxxxxxx, Sachs & Co. $ 46,448,000 $ 35,000,000 $ 70,687,000
Banc One Capital Markets, Inc. $ 45,000,000 $ 33,000,000 $ 69,000,000
X.X. Xxxxxx Securities Inc. $ 45,000,000 $ 33,000,000 $ 69,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx $ 45,000,000 $ 33,000,000 $ 69,000,000
Incorporated
Total $181,448,000 $134,000,000 $277,687,000
============ ============ ============
S-1
