Class B Note Underwriting Agreement Caterpillar Financial Asset Trust 2007-A Class B 6.18% Asset Backed Notes
Exhibit
1.2
Class
B Note Underwriting Agreement
Caterpillar
Financial Asset Trust 2007-A
Class
B 6.18% Asset Backed Notes
September 17, 2007
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0
Xxxxx Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Ladies
and Gentlemen:
1. Introductory.
Caterpillar Financial Funding Corporation, a Nevada corporation (the
"Depositor"), proposes to cause Caterpillar Financial Asset Trust 2007-A
(the "Issuing Entity") to issue $19,798,000 aggregate principal amount of
Class B 6.18% Asset Backed Notes (the "Class B Notes") and to sell the
Class B Notes to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the
"Underwriter"). The assets of the Issuing Entity 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 transferred
to the Issuing Entity by the Depositor. The Receivables will be serviced for
the
Issuing Entity 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 September 1, 2007 (as amended and
supplemented from time to time, the "Indenture"), between the Issuing
Entity and U.S. Bank National Association, a national banking association (the
"Indenture Trustee").
Simultaneously
with the issuance and sale of the Class B Notes as contemplated herein, the
Issuing Entity will issue $150,000,000 aggregate principal amount of Class
A-1
5.67225% Asset Backed Notes (the "Class A-1 Notes"), $75,000,000
aggregate principal amount of Class A-2a 5.40% Asset Backed Notes (the "Class
A-2a Notes"), $126,000,000 aggregate principal amount of Class A-2b Floating
Rate Asset Backed Notes (the "Class A-2b Notes," and together with the
Class A-2a Notes, the “Class A-2 Notes”), $134,050,000 aggregate
principal amount of Class A-3a 5.34% Asset Backed Notes (the "Class A-3a
Notes") and $155,000,000 aggregate principal amount of Class A-3b Floating
Rate Asset Backed Notes (the "Class A-3b Notes," and together with the
Class A-3a Notes, the “Class A-3 Notes," together with the Class A-1
Notes and the Class A-2 Notes, the "Class A Notes," and together with the
Class B Notes, the "Notes") and Asset Backed Certificates (the
"Certificates") each such certificate representing a fractional undivided
interest in the Issuing Entity. The Class A Notes will be sold pursuant to
an
underwriting agreement (the "Class A Note Underwriting Agreement,"
together with this Agreement, the "Underwriting Agreements") among the
Depositor and the underwriters named in Schedule I thereto.
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 September 1, 2007
(as
amended and supplemented from time to time, the "Sale and Servicing Agreement"),
among the Issuing Entity, the Depositor and the Servicer or, if not defined
therein, in the Indenture or the Trust Agreement to be dated as of September
27,
2007 (as amended and supplemented from time to time, the "Trust Agreement"),
between the Depositor and The Bank of New York (Delaware), a Delaware banking
corporation, and an affiliate of The Bank of New York, a New York banking
corporation, as owner trustee under the Trust Agreement (the "Owner
Trustee").
2. Representations
and Warranties of the Depositor and CFSC. Each of the Depositor and CFSC,
with respect to itself only (except that any representation or warranty relating
to the Issuing Entity is made by the Depositor on its behalf), and not with
respect to the other, represents and warrants to and agrees with the Underwriter
that:
(a) The
Depositor 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. 333-145491) 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. Such registration statement has been declared effective
by the Commission. Such registration statement, as amended as of the
time it became effective (including without limitation each deemed effective
date and time in accordance with Rule 430B(f) under the Act (the “Effective
Time”)), including all material incorporated by reference therein and all
information deemed to be part thereof pursuant to Rule 430B under the Act is
hereinafter referred to as the “Registration Statement.” The
Depositor has filed with the Commission pursuant to Rule 424(b) under the Act
a
preliminary prospectus supplement dated September 17, 2007 relating to the
sale
of the Notes (including the static pool information required to be disclosed
pursuant to Item 1105 of Regulation AB under the Act, without regard to whether
such information is deemed to be a part of the prospectus under Item 1105(d)
of
Regulation AB under the Act, the “Preliminary Prospectus Supplement”)
accompanied by the base prospectus dated September 17, 2007 (the “Basic
Prospectus”; together with the Preliminary Prospectus Supplement, the
“Preliminary Prospectus”). The Depositor proposes to file with
the Commission pursuant to Rule 424(b) under the Act a final prospectus
supplement relating to the sale of the Notes (including the static pool
information required to be disclosed pursuant to Item 1105 of Regulation AB
under the Act, without regard to whether such information is deemed to be a
part
of the prospectus under Item 1105(d) of Regulation AB under the Act, the
“Prospectus Supplement”) to the Basic Prospectus (together with the
Prospectus Supplement, the “Prospectus”).
For
purposes of this Agreement, "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. The term "Contract
of Sale" shall have the meaning given such term in Rule 159 of the Act and
all Commission guidance relating to Rule 159 of the Act. "Rule 424"
refers to such rule under the Act. Any reference herein to the
Registration Statement, the Prospectus, the Preliminary 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, the Preliminary 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, the Preliminary 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, the Preliminary Prospectus
Supplement or any Prospectus Supplement, as the case may be, and on or prior
to
the Closing Date (as defined below) deemed to be incorporated therein by
reference. The Depositor has included in the Registration Statement,
as amended at the Effective Time, all information required by the Act and the
rules thereunder to be included in the Prospectus with respect to the Notes
and
the offering thereof.
(b) The
Registration Statement, at the Effective Time, and the Preliminary Prospectus,
when filed with the Commission, complied 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"). The Prospectus when first filed with
the Commission will comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act, the
Rules
and Regulations and the rules and regulations of ERISA. The
Registration Statement, at the Effective Time, did 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; the Preliminary Prospectus, together with the “free writing
prospectus” in the form attached as Annex A (the “Bond Size Free Writing
Prospectus”), at 3:15 p.m., New York time, on September 17, 2007, which is the
time when Contracts of Sale with respect to the Notes were first made (the
“Time of Sale”) did not include any untrue statement of a material fact
or omit (except pricing information to be included in the Prospectus Supplement)
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;
and
the Prospectus as of its date, as of the date of any amendment or supplement
thereto and as of the Closing Date 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 Depositor makes
no representation or warranty as to the information contained in or omitted
from
the Registration Statement, the Preliminary Prospectus or the Prospectus in
reliance upon and in conformity with information furnished in writing to the
Depositor by any Underwriter through the Representatives specifically for use
in
connection with preparation of the Registration Statement, the Preliminary
Prospectus or the Prospectus.
(c) Since
the respective dates as of which information is given in the Registration
Statement, the Preliminary Prospectus 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 Depositor or CFSC, and (ii) neither the
Depositor 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 Preliminary
Prospectus and the Prospectus.
(d) The
computer tape of the Receivables created as of September 1, 2007, and made
available to the Underwriter 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.
(e) Each
of the Depositor 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
Depositor and CFSC.
(g) On
the date of this Agreement and on the Closing Date, the representations and
warranties of CFSC and the Depositor in each of the Basic Documents to which
they are a party will be true and correct, except for representations and
warranties which relate to a specific time, which shall be true and correct
as
of such time.
(h) CFSC's
sale, transfer, assignment, set over and conveyance of the Receivables to the
Depositor as of the Closing Date will vest in the Depositor 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
Depositor's sale, transfer, assignment, set over and conveyance of the
Receivables to the Issuing Entity as of the Closing Date will vest in the
Issuing Entity all of the Depositor's right, title and interest therein or
a
first priority perfected security interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
(j) The
Issuing Entity'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.
(k) When
the Class B Notes have been duly executed and delivered by the Owner Trustee
on
behalf of the Issuing Entity, authenticated by the Indenture Trustee in
accordance with the Indenture and delivered and paid for pursuant to this
Agreement, the Class B Notes will be duly issued, will constitute legal, valid
and binding obligations of the Issuing Entity enforceable against the Issuing
Entity 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, conservatorship, 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.
(l) Each
of CFSC and the Depositor has the power and authority to execute and deliver
this Agreement and to carry out the terms of this Agreement.
(m) The
execution, delivery and performance of this Agreement and the consummation
by
each of CFSC and the Depositor of the transactions contemplated hereby shall
not
conflict with, result in any breach of any of the terms and provisions of or
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of such party, or any indenture,
agreement or other instrument to which such party is a party or by which it
is
bound, or violate any law, order, rule or regulation applicable to such party
of
any court or of any federal or state regulatory body, administrative agency
or
other governmental instrumentality having jurisdiction over such party or any
of
its properties; and, except for the registration of the Class B Notes under
the
Act, the qualification of the Indenture under the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be
required under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Class B Notes by the
Underwriter, no permit, consent, approval of, or declaration to or filing with,
any governmental authority is required to be obtained by such party in
connection with its execution, delivery and performance of this Agreement or
its
consummation of the transactions contemplated hereby.
(n) There
are no proceedings or investigations pending or, to CFSC's or the Depositor's
knowledge, no proceeding or investigations threatened, against such party before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over such party or its
properties (i) asserting the invalidity of this Agreement or any of the Notes,
(ii) seeking to prevent the issuance of any of the Notes or the consummation
of
any of the transactions contemplated by this Agreement, (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by such party of its obligations under, or the validity or
enforceability of, the Notes or this Agreement, or (iv) that may adversely
affect the federal or state income, excise, franchise or similar tax attributes
of the Notes.
(o) There
are no contracts or other documents which are required to be described in the
Preliminary Prospectus or the Prospectus or filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations and which
have
not been so described or filed.
(p) The
Depositor (i) is not in violation of its certificate of incorporation or
by-laws, (ii) is not in default, in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such
a
default, in the Depositor's due performance or observance of any term, covenant
or condition contained in any indenture, agreement, mortgage, deed of trust
or
other instrument to which the Depositor is a party or by which the Depositor
is
bound or to which any of the Depositor's property or assets is subject or (iii)
is not in violation in any respect of any law, order, rule or regulation
applicable to the Depositor or any of the Depositor's property of any court
or
of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over it or any of its property,
except any violation or default that would not have a material adverse effect
on
the condition (financial or otherwise), results of operations, business or
prospects of the Depositor.
(q) The
Basic Documents conform in all material respects with the descriptions thereof
contained in the Registration Statement, the Preliminary Prospectus and the
Prospectus.
(r) Neither
the Issuing Entity nor the Depositor is an "investment company" or under the
"control" of an "investment company" within the meaning thereof as defined
in
the Investment Company Act of 1940, as amended.
(s) Other
than the Preliminary Prospectus and the Prospectus, neither the Depositor nor
the Servicer (including their respective agents and representatives other than
the Underwriter in its capacity as such) has made, used, prepared, authorized,
approved or referred to and will not prepare, make, use, authorize, approve
or
refer to any "written communication" (as defined in Rule 405 under the Act)
that
constitutes an offer to sell or solicitation of an offer to buy the
Notes.
(t) On
the date on which the first bona fide offer of the Notes was made, the Depositor
was not an “ineligible issuer,” as defined in Rule 405 of the Rules and
Regulations.
3. Purchase,
Sale, and Delivery of the Class B Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to
the
terms and conditions herein set forth, the Depositor agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Depositor, at
a
purchase price of 99.558598% of the principal amount thereof, $19,798,000 in
principal amount of the Class B Notes. Delivery of and payment for
the Class B Notes shall be made at the office of Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 on September 27, 2007
(the
"Closing Date"). Delivery of the Class B Notes shall be made against
payment of the purchase price in immediately available funds drawn to the order
of the Depositor. The Class B Notes to be so delivered will be initially
represented by one or more Class B Notes registered in the name of "Cede &
Co.," the nominee of The Depository Trust Company ("DTC"). The interests
of beneficial owners of the Class B Notes will be represented by book entries
on
the records of DTC and participating members thereof. Definitive Class B Notes
will be available only under limited circumstances set forth in the
Indenture.
4. Offering
by Underwriter. It is understood that the Underwriter proposes to
offer the Class B Notes for sale to the public (which may include selected
dealers) as set forth in the Preliminary Prospectus and the
Prospectus.
5. Covenants
of the Depositor. The Depositor covenants and agrees with the
Underwriter that:
(a) The
Depositor will prepare a Prospectus Supplement setting forth the terms of the
Notes not specified in the Preliminary Prospectus Supplement, including the
price at which the Notes are to be purchased by the Underwriter, the initial
public offering price, the selling concessions and allowances, and such other
information as the Depositor deems appropriate and shall furnish a copy to
the
Underwriter in accordance with Section 5(b) of this Agreement. The Depositor
will transmit the Prospectus 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 Depositor will advise the
Underwriter promptly of any such filing pursuant to Rule 424(b). The
Depositor will transmit the Bond Size Free Writing Prospectus and the “free
writing prospectus” in the form attached as Annex B hereto (the “Pricing Free
Writing Prospectus”) to the Commission pursuant to Rule 433(d) by a means
reasonably calculated to result in filing that complies with all applicable
provisions of Rule 433(d).
(b) Prior
to the termination of the offering of the Notes, the Depositor will not file
any
amendment of the Registration Statement or supplement to the Prospectus unless
the Depositor has furnished the Underwriter with a copy for its review prior
to
filing and will not file any such proposed amendment or supplement to which
the
Underwriter reasonably objects. Subject to the foregoing sentence, if filing
of
a supplement to the Prospectus is otherwise required under Rule 424(b), the
Depositor will file the supplement to the Prospectus, properly completed, 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 Underwriter of such timely filing.
(c) The
Depositor will advise the Underwriter promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus, and will not effect
such amendment or supplement without the Underwriter's consent, which consent
will not unreasonably be withheld. The Depositor will also advise the
Underwriter 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 Depositor will also advise the Underwriter 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 Depositor 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 (including delivery as contemplated by Rule 172 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 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 Depositor promptly will notify the Underwriter
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 the Underwriter hereunder.
(e) The
Depositor will furnish to the Underwriter copies of the Registration Statement
(one of which will be signed and will include all exhibits), the Preliminary
Prospectus, the Prospectus and all amendments and supplements to such documents,
in each case as soon as available and in such quantities as the Underwriter
requests.
(f) The
Depositor will assist the Underwriter 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, société anonyme, as the
Underwriter designates and will continue to assist the Underwriter in
maintaining such qualifications in effect so long as required for the
distribution; provided, however, that neither the Depositor 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.
(g) For
a period from the date of this Agreement until the retirement of the Notes,
or
until such time as the Underwriter shall cease to maintain a secondary market
in
the Notes, whichever occurs first, the Depositor will deliver to the Underwriter
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.
(h) So
long as any of the Notes are outstanding, the Depositor will furnish to the
Underwriter (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 Depositor filed with
any
government or regulatory authority which is otherwise publicly available, as
the
Underwriter may reasonably request.
(i) On
or before the Closing Date, the Depositor shall cause the computer records
of
the Depositor and the Servicer relating to the Receivables to be marked to
show
the Issuing Entity's absolute ownership of the Receivables, and from and after
the Closing Date neither the Depositor nor the Servicer shall take any action
inconsistent with the Issuing Entity's ownership of such Receivables, other
than
as permitted by the Sale and Servicing Agreement.
(j) 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 Depositor,
the
Depositor shall furnish such documents and take any such other
actions.
(k) For
the period beginning on the date of this Agreement and ending seven days after
the Closing Date, unless waived by the Underwriter, none of the Depositor,
CFSC
or any trust originated, directly or indirectly, by the Depositor 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.
(l) The
Depositor and CFSC each will deliver to the Underwriter, all opinions,
certificates and other documents or information delivered by it 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 Depositor 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 Underwriter, (iii) the fees and disbursements of the Depositor's counsel
and
accountants, (iv) the qualification of the Notes under securities laws in
accordance with the provisions of Section 5(f) 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 Underwriter of copies of the
Registration Statement as originally filed and of each amendment thereto, of
the
Preliminary Prospectus, of the Prospectus and of each amendment or supplement
thereto, (vi) the printing and delivery to the Underwriter 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 Financial
Industry Regulatory Authority and (ix) the fees and expenses of Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP in its role as counsel to the Issuing Entity
incurred as a result of providing the opinions required by Sections 7(e) and
(f)
hereof.
7. Conditions
of the Obligations of the Underwriter. The obligations of the
Underwriter to purchase and pay for the Class B Notes will be subject to the
accuracy of the representations and warranties on the part of the Depositor
and
CFSC herein, to the accuracy of the statements of officers of the Depositor
and
CFSC made pursuant to the provisions hereof, to the performance by the Depositor
of its obligations hereunder and to the following additional conditions
precedent:
(a) The
Registration Statement shall be effective at 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 Depositor or the Underwriter, shall
be contemplated by the Commission or by any authority administering any state
securities or blue sky law.
(b) Each
of the Preliminary Prospectus and 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. The Bond Size Free
Writing Prospectus and the Pricing Free Writing Prospectus shall have been
filed
with the Commission in accordance with Rule 433(d) of the Rules and
Regulations.
(c) On
or prior to the date of this Agreement and on or prior to the Closing Date,
the
Underwriter 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 Underwriter has previously agreed and otherwise
in form and substance satisfactory to the Underwriter 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 Issuing Entity, the
Depositor or the Servicer which, in the judgment of the Underwriter, 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 the over-the-counter
market, or any setting of minimum prices for trading on such exchange, or a
material disruption in commercial banking or securities settlement or clearance
services in the United States or with respect to Clearstream or Euroclear
systems in Europe; (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 Underwriter,
the effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with the offering, sale of and
payment for the Notes.
(e) The
Underwriter shall have received opinions of Xxxxx X. Xxxxx, Esq., Senior
Corporate Attorney of CFSC, Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP and Boult,
Cummings, Xxxxxxx & Xxxxx PLC, counsel to CFSC, the Depositor and the
Issuing Entity and such other counsel acceptable to the Underwriter addressed
to
the Underwriter, dated the Closing Date and satisfactory in form and substance
to the Underwriter 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
and the Sale and Servicing Agreement and had at all times, and now has, the
power, authority and legal right to acquire, own and sell the
Receivables.
(ii) The
Depositor 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 and the Administration 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 Depositor, the Owner Trustee or the Indenture
Trustee.
(iv) The
Depositor 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) When
the Certificates have been duly executed, authenticated and delivered by the
Owner Trustee in accordance with the Trust Agreement and delivered to the
Depositor pursuant to the Sale and Servicing Agreement, the Certificates will
be
legally issued, fully paid and nonassessable obligations of the Issuing Entity
and will be entitled to the benefits of the Trust Agreement.
(vi) When
the Notes have been duly executed and delivered by the Owner Trustee on behalf
of the Issuing Entity, 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 Issuing Entity enforceable against the Issuing Entity
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, conservatorship, 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
and the Administration Agreement has been duly authorized, executed and
delivered by the Depositor, and is a legal, valid and binding obligation of
the
Depositor enforceable against the Depositor 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.
(viii) The
Underwriting Agreements have been duly authorized, executed and delivered by
each of the Depositor and CFSC.
(ix) Each
of the Administration Agreement, the Purchase Agreement and the Sale and
Servicing 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, conservatorship, 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 Depositor, nor the sale, transfer, assignment, set over and
conveyance of the Receivables from the Depositor to the Issuing Entity, nor
the
grant of a security interest in the Trust Estate by the Issuing Entity to the
Indenture Trustee, nor the assignment by the Depositor of its right, title
and
interest in the Purchase Agreement to the Issuing Entity, 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 or
the
Administration Agreement by the Depositor, nor the execution of the Underwriting
Agreements, the Administration Agreement, the Purchase Agreement or the Sale
and
Servicing Agreement by CFSC, nor the consummation of any transactions
contemplated in the Underwriting Agreements, the Purchase Agreement, the Trust
Agreement, the Indenture, the Interest Rate Swap Agreement(s), the
Administration Agreement or the Sale and Servicing Agreement (such agreements,
excluding the Underwriting Agreements, being for purposes of this clause (x)
and
elsewhere herein, as applicable, collectively, the "Basic Documents"),
nor the fulfillment of the terms thereof by CFSC, the Depositor or the Issuing
Entity, as the case may be, will (1) 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 Depositor
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 Depositor is a party
or by
which either of them is bound, or (2) result in a violation of or contravene
the
terms of any statute, order or regulation applicable to CFSC or the Depositor
of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over either of them.
(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 Issuing Entity 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 or the Sale and Servicing
Agreement, (B) by the Depositor of its obligations under, or the validity or
enforceability of, the Underwriting Agreements, the Purchase Agreement, the
Trust Agreement or the Sale and Servicing 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 Depositor 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 Depositor 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 Depositor 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
Depositor'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 Depositor
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, would not order, over the objection
of
the Certificateholders or the Noteholders, the substantive consolidation of
the
assets and liabilities of the Depositor 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 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 Depositor a valid security interest in CFSC's
rights in the Receivables and the proceeds thereof. The Sale and Servicing
Agreement grants to the Issuing Entity a valid security interest in the
Depositor's rights in the Receivables and the proceeds thereof. The Indenture
grants to the Indenture Trustee a valid security interest in the Issuing
Entity's rights in the Receivables and the proceeds thereof.
(xviii) The
Receivables are tangible chattel paper as defined in the Uniform Commercial
Code
(the "UCC").
(xix) Immediately
prior to the transfer of the Receivables and the proceeds thereof to the Issuing
Entity, the Depositor 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 Issuing
Entity 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
statements in each of the Preliminary Prospectus and the Prospectus under the
headings "Risk Factors––The notes may suffer losses if other liens have priority
over the lien of the indenture,” “Risk Factors––Bankruptcy of Cat Financial or a
dealer could result in delays in payment or losses on the notes” 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.
(xxi) The
statements contained in each of the Preliminary Prospectus and 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 Interest Rate Swap Agreement(s), the
Administration Agreement, the Sale and Servicing Agreement, the Purchase
Agreement and the Trust Agreement, are a fair and accurate summary of the
matters referred to therein.
(xxii) 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 Depositor pursuant to the Purchase Agreement
and the transfer of the Receivables to the Issuing Entity pursuant to the Sale
and Servicing Agreement and as may be required under state securities or Blue
Sky laws of various jurisdictions.
(xxiii) 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.
(xxiv) The
Trust Agreement is not required to be qualified under the Trust Indenture Act
and the Issuing Entity is not required to be registered under the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(xxv) The
Indenture has been duly qualified under the Trust Indenture Act.
(xxvi) The
Depositor is not, and will not as a result of the offer and sale of the Notes
as
contemplated in the Preliminary Prospectus, 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.
(xxvii) The
Registration Statement is effective under the Act, any required filing of the
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.
(xxviii) Nothing
has come to such counsel's attention that would lead such counsel to believe
that the Preliminary Prospectus, together with the Bond Sizing Free Writing
Prospectus, as of the Time of Sale contained any untrue statement of a material
fact or omitted (except pricing information to be included in the Prospectus
Supplement) 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 (other than the financial statements and other financial and
statistical information contained therein, as to which such counsel need not
express any view).
(xxix) 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 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.
(xxx) The
Issuing Entity has been duly formed and is validly existing as a statutory
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 Interest Rate Swap Agreement(s), the
Administration Agreement, the Notes and the Certificates.
(xxxi) The
Indenture, the Interest Rate Swap Agreement(s), the Sale and Servicing Agreement
and the Administration Agreement have been duly authorized and, when duly
executed and delivered by the Owner Trustee on behalf of the Issuing Entity,
will constitute the legal, valid and binding obligations of the Issuing Entity,
enforceable against the Issuing Entity 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.
(xxxii) 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.
(xxxiii) 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 Depositor, the Owner Trustee or the Indenture
Trustee.
(xxxiv) 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.
(xxxv) 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.
(xxxvi) 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 Underwriter 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 Depositor and the Issuing Entity as
may
be acceptable to the Underwriter.
(f) The
Underwriter shall have received an opinion addressed to it of Xxxxxx, Xxxxxxxxxx
& Xxxxxxxxx LLP in its capacity as Special Tax Counsel for the Issuing
Entity, dated the Closing Date, substantially to the effect that the statements
in each of the Preliminary Prospectus and the Prospectus under the headings
"Summary of the Notes and the Transaction Structure––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, the statements in each of the Preliminary Prospectus
and the Prospectus under the heading "Legal Investment," 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 Class A-1 Notes under the Investment
Company Act, and the statements in each of the Preliminary Prospectus and 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.
(g) The
Underwriter shall have received an opinion addressed to it of Boult, Cummings,
Xxxxxxx & Xxxxx PLC in its capacity as Special Tennessee Tax
Counsel for the Issuing Entity, dated the Closing Date, substantially to the
effect that the statements in each of the Preliminary Prospectus and the
Prospectus under the heading "Summary of the Notes and the Transaction
Structure––Tax Status" (to the extent relating to Tennessee income tax
consequences) and in each of the Preliminary Prospectus and the Prospectus
under
the heading "Certain State Tax Considerations" accurately describe the material
income tax consequences in the State of Tennessee to holders of the
Notes.
(h) The
Underwriter shall have received an opinion addressed to it of Xxxxxx Xxxxxx
& Xxxxxxx in its capacity as Special Nevada Tax Counsel for the Issuing
Entity, dated the Closing Date, substantially to the effect that the Issuing
Entity would not be subject to taxation in Nevada.
(i) The
Underwriter shall have received an opinion addressed to it of Xxxxxxx Xxxxxxx
& Xxxxxxxx LLP in its capacity as Special Counsel to the Underwriter, dated
the Closing Date, with respect to the validity of the Notes and such other
related matters as the Underwriter shall require and the Depositor 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
Underwriter shall have received an opinion addressed to it, the Depositor and
the Servicer of Xxxxxx & Whitney LLP in its capacity as counsel to the
Indenture Trustee, dated the Closing Date, in form and substance satisfactory
to
the Underwriter.
(k) The
Underwriter shall have received an opinion addressed to it, the Depositor and
the Servicer of Xxxxxxxx, Xxxxxx & Finger, counsel to the Owner Trustee, and
such other counsel acceptable to the Underwriter and its counsel, dated the
Closing Date and satisfactory in form and substance to the Underwriter 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 Issuing
Entity, under the Indenture, the Sale and Servicing Agreement, the Interest
Rate
Swap Agreement(s) and the Administration Agreement.
(iii) The
execution and delivery of the Trust Agreement and, on behalf of the Issuing
Entity, of the Indenture, the Interest Rate Swap Agreement(s), 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 Interest Rate Swap Agreement(s), the Sale
and Servicing Agreement and the Administration Agreement have been duly
authorized by all necessary corporate action of the Owner Trustee and each
has
been duly executed and delivered by the Owner Trustee.
(iv) The
Trust Agreement, the Sale and Servicing Agreement, the Indenture 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 Issuing Entity, of the Indenture, the Interest Rate Swap
Agreement(s), the Sale and Servicing 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 Issuing Entity.
(vii) The
execution and delivery by the Owner Trustee of the Trust Agreement and, on
behalf of the Issuing Entity, the Sale and Servicing Agreement, the Indenture,
the Interest Rate Swap Agreement(s) 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
Underwriter shall have received an opinion addressed to it, the Depositor and
the Servicer of counsel to the Swap Counterparty acceptable to the Underwriter,
dated the Closing Date, in form and substance satisfactory to the
Underwriter.
(m) The
Underwriter 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 Secretary, the
principal financial officer or the principal accounting officer of each of
the
Depositor 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 Depositor, 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 Depositor, 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
Issuing Entity, the Depositor, CFSC and/or the Servicer, as the case may be,
has
occurred.
(n) The
Underwriter shall have received evidence satisfactory to it of the filing of
all
UCC financing statements necessary to perfect the transfer of the interest
of
CFSC in the Receivables and the proceeds thereof to the Depositor, the transfer
of the interest of the Depositor in the Receivables and the proceeds thereof
to
the Issuing Entity and the grant of the security interest by the Issuing Entity
in the Receivables and the proceeds thereof to the Indenture
Trustee.
(o) The
Class B Notes shall have been rated at least "A" by Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. and at xxxxx
"X0" by Xxxxx'x Investors Service, Inc., and in each case shall not have been
placed on any creditwatch or review with a negative implication for
downgrade.
(p) 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 Depositor or any of its affiliates or
by
any trust established by the Depositor or any of its affiliates.
(q) On
the Closing Date, the Class A Notes shall have been issued and sold pursuant
to
the Class A Note Underwriting Agreement and the Certificates shall have been
issued and purchased by the Depositor.
(r) The
Depositor will provide or cause to be provided to the Underwriter such conformed
copies of such opinions, certificates, letters and documents as it reasonably
requests.
8. Indemnification
and Contribution.
(a) The
Depositor and CFSC will jointly and severally, indemnify and hold harmless
the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Act against any losses, claims, damages, expenses
or liabilities, joint or several, to which the 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) (i) arise out of or
are
based upon any untrue statement or alleged untrue statement of any material
fact
contained in the Registration Statement, the Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, 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,
or (ii) arise out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in any Issuer Information (as defined
herein) contained in any Permitted Underwriter Communication (as defined
herein); and, in each case, will reimburse the Underwriter for any legal or
other expenses reasonably incurred by the Underwriter in connection with
investigating or defending any such loss, claim, damage, expense liability
or
action; provided, however, that the Depositor 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
Depositor or CFSC by the Underwriter specifically for use therein.
The
indemnity agreement in this subsection (a) shall be in addition to any liability
which the Depositor or CFSC may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls the Underwriter
within the meaning of the Act.
(b) The
Underwriter will indemnify and hold harmless the Depositor and CFSC against
any
losses, claims, damages, expenses or liabilities to which the Depositor and
CFSC
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages, expenses or liabilities (or actions in respect thereof) (i) arise
out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, 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 Depositor or CFSC by the Underwriter specifically for use
therein or (ii) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Permitted Underwriter
Communication, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, except to the extent any such losses, claims, damages,
expenses or liabilities arise out of any Issuer Information, and, in each case,
will reimburse any legal or other expenses reasonably incurred by the Depositor
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 the Underwriter may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls the Depositor 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 11 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 (who shall not, except with the consent of the indemnified party,
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,
the
indemnifying party will not be liable to such indemnified party under such
subsection for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party if indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability of any claims that are the subject matter
of such action and (ii) does not include a statement as to or an admission
of
fault, culpability or a failure to act by or on behalf of any indemnified
party.
(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 Depositor and CFSC on the one hand and the Underwriter
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
Depositor and CFSC on the one hand and the Underwriter 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 Depositor and CFSC on the one hand and the Underwriter 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 Depositor and CFSC bear
to
the total underwriting discounts and commissions received by the Underwriter,
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 Depositor and CFSC on
the
one hand or by the Underwriter on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Depositor and CFSC and Underwriter 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, expenses 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), the Underwriter shall not 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 the 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.
The
contribution agreement in this subsection (d) shall extend, upon the same terms
and conditions, to each person, if any, who controls the Underwriter within
the
meaning of the Act.
9. No
Bankruptcy Petition. The Underwriter and CFSC each 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 Depositor or by a trust for which the Depositor
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 Depositor or the Issuing Entity any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under any Federal or state bankruptcy or similar
law.
10. Survival
of Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Depositor
or
CFSC or any of their officers and the Underwriter set forth in or made pursuant
to this Agreement or contained in certificates of officers of the Depositor
or
CFSC 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
the
Underwriter or of the Depositor or CFSC or any of their respective
representatives, officers or directors or any controlling person, and (iii)
delivery of and payment for the Class B Notes. If for any reason the purchase
of
the Class B Notes by the Underwriter is not consummated, the Depositor shall
remain responsible for the expenses to be paid or reimbursed by the Depositor
pursuant to Section 6 of this Agreement and the respective obligations of the
Depositor and the Underwriter pursuant to Section 8 of this Agreement shall
remain in effect. If for any reason the purchase of the Class B Notes
by the Underwriter 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 Depositor will reimburse the 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
B Notes. Nothing contained in this Section 10 shall limit the recourse of the
Depositor against the Underwriter.
11. Notices.
All communications hereunder will be in writing and if sent to the Underwriter,
will be mailed, delivered or telegraphed and confirmed to Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, 4 World Financial Center, Xxxxx Xxxxx, 00xx Xxxxx, Xxx
Xxxx,
Xxx Xxxx, 00000, Attention: Global Asset Based Finance; if sent to the
Depositor, 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. Any such notice will take effect at the time of
receipt.
12. 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 B Notes from
the
Underwriter shall be deemed to be a successor of the Underwriter merely because
of such purchase.
13. 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.
14. Applicable
Law. This Agreement will be governed by, and construed in accordance with,
the laws of the State of New York.
15. Representations,
Warrants and Covenants of the Underwriter.
(a) The
Underwriter hereby represents and warrants to, and agrees with, the Depositor
and CFSC that the Underwriter (i) shall not take any order for any Class B
Notes
from or enter into any Contract of Sale with any Person until after the
Preliminary Prospectus (or if available at the time of sale, the Prospectus)
has
been conveyed to such Person and (ii) shall keep sufficient records to document
its conveyance of the Preliminary Prospectus (or if available at the time of
sale, the Prospectus) to each potential investor prior to the related Contract
of Sale and shall maintain such records as required by the Act.
(b) The
Underwriter covenants and agrees with the Depositor that other than the
Preliminary Prospectus and the Prospectus, without the Depositor's prior written
approval, the Underwriter has not made, used, prepared, authorized, approved
or
referred to and will not prepare, make, use, authorize, approve or refer to
any
"written communication" (as defined in Rule 405 under the Act) relating to
the
offer and sale of the Notes that would constitute a "prospectus" or a "free
writing prospectus," each as defined in the Act or the Rules and Regulations
thereunder, including, but not limited to any "ABS informational and
computational materials" as defined in Item 1101(a) of Regulation AB under
the
Act; provided, however, that (i) the Underwriter may prepare
and convey one or more "written communications" (as defined in Rule 405 under
the Act) that include any legends required by Rule 134 or Rule 433 under the
Act
(as applicable) (A) containing no more than the following: (1) information
contemplated by Rule 134 under the Act and included or to be included in the
Preliminary Prospectus or the Prospectus, including but not limited to,
information relating to the class, size, rating, legal maturity date and/or
the
final price of the Notes, (2) the following additional information with respect
to the Notes: weighted average life, expected final payment date and a column
or
other entry showing the status of the subscriptions for the Notes and/or
expected pricing parameters of the Notes or (3) information customarily included
in confirmations of sales of securities and notices of allocations; or (B)
in
the form of an Intex CDI file that does not contain any Issuer Information
other
than Issuer Information included in the Preliminary Prospectus (each such
written communication, a "Permitted Underwriter Communication"); and (ii)
unless otherwise consented to by the Depositor, no such Permitted Underwriter
Communication shall be conveyed in a manner reasonably designed to lead to
its
broad unrestricted dissemination such that, as a result of such conveyance,
the
Depositor or the CFSC shall be required to make any filing of such Permitted
Underwriter Communication pursuant to Rule 433(d) under the Act; if any such
Permitted Underwriter Communication is required to be filed under the Act,
the
Underwriter who prepared such Permitted Underwriter Communication will prepare
such filing and transmit it to the Depositor by a means reasonably calculated
to
allow the Depositor to make such filing in accordance with Rule 433(d).
“Issuer Information” has the meaning specified in Section 433(h)(2) of
the Rules and Regulations.
16. Arm’s
Length Transaction. The Depositor and CFSC acknowledge and agree
that the Underwriter is acting solely in the capacity of an arm’s length
contractual counterparty to the Depositor and CFSC with respect to the offering
of the Notes contemplated hereby (including in connection with determining
the
terms of the offering) and not as a financial advisor or a fiduciary to, or
an
agent of, the Depositor, CFSC or any other person. Additionally, the
Underwriter is not advising the Depositor, CFSC or any other person as to any
legal, tax, investment, accounting or regulatory matters in any jurisdiction.
The Depositor and CFSC shall consult with their own advisors concerning such
matters and shall be responsible for making their own independent investigation
and appraisal of the transactions contemplated hereby, and the Underwriter
shall
not have any responsibility or liability to the Depositor or CFSC with respect
thereto. Any review by the Underwriter of the Depositor, CFSC, the transactions
contemplated hereby or other matters relating to such transactions will be
performed solely for the benefit of the Underwriter and shall not be on behalf
of the Depositor or CFSC.
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 Depositor, CFSC and the Underwriter in accordance
with the terms of this Class B Note Underwriting Agreement.
Very
truly yours,
By:_____/s/
Xxxxx X. Xxxxxxxx ______________
Name: Xxxxx
X. Xxxxxxxx
Title: Treasurer
CATERPILLAR
FINANCIAL SERVICES CORPORATION
By:_____/s/
Xxxxx X. Xxxxxxxx ______________
Name: Xxxxx
X. Xxxxxxxx
Title: Treasurer
The
foregoing Class B Underwriting
Agreement
is hereby confirmed and
accepted
as of the date first written above.
XXXXXXX
LYNCH, PIERCE, XXXXXX &
XXXXX
INCORPORATED
By:_____/s/
Xxxx Petrie___________________
Name:
Xxxx Xxxxxx
Title: Director
ANNEX
A
Bond
Size Free Writing Prospectus
Bond-size
terms, dated September 17, 2007 as filed pursuant to Rule 433 under the
Securities Act:
CATERPILLAR
FINANCIAL ASSET TRUST 2007-A
$659.848MM
JOINT-LEADS:
JPMS/ML CO-MGRS:
ABN/BOFA/BARCAP/CITI*100%
POT*
|
Cls
|
Amt
($mm)
|
Rtgs
(M/S)
|
WAL
|
E.F.
|
L.F.
|
Bmrk/Level
|
|
A-1
|
150.000
|
A-1+/P-1
|
0.30
|
04/08
|
09/08
|
IntL
+ 11
|
|
A-2A
|
75.000
|
Aaa/AAA
|
1.00
|
07/09
|
04/10
|
EDSF
+ 50
|
|
A-2B
|
126.000
|
Aaa/AAA
|
1.00
|
07/09
|
04/10
|
1m
L + 42
|
|
A-3A
|
134.050
|
Aaa/AAA
|
2.31
|
09/11
|
06/12
|
SWPS
+ 65
|
|
A-3B
|
155.000
|
Aaa/AAA
|
2.31
|
09/11
|
06/12
|
1m
L + 47
|
|
B
|
19.798
|
A3/A
|
3.08
|
09/12
|
09/13
|
SWPS
+ 150
|
TARGET
PRICING AT 3:15PM TODAY
PRICED
TO 14% CPR AND 10% CLEAN UP CALL
EXPECTED
SETTLEMENT: THURSDAY, SEPTEMBER 27th
The
issuer has filed a registration statement (including a prospectus) with the
SEC
for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting XXXXX on
the
SEC Web site at xxx.xxx.xxx.
Alternatively, the issuer, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you request it by calling
the toll-free number at 0-000-000-0000.
A
written prospectus may also be obtained from your Xxxxxxx Xxxxx sales
representative, from Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 4
World Financial Center, FL 07, New York NY or, in Canada, from Xxxxxxx Xxxxx
Canada Inc., 000 Xxx Xxxxxx-Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0.
This
communication is intended for the sole use of the person or entity to whom
it is
provided by us.
Any
legends, disclaimers or notices that appear below were automatically generated,
are not applicable to this message, and should be disregarded.
ANNEX
B
Pricing
Free Writing Prospectus
Pricing
terms, dated September 17, 2007 as filed pursuant to Rule 433 under the
Securities Act:
CATERPILLAR
FINANCIAL ASSET TRUST 2007-A
$659.848MM CFAT
2007-A
JOINT-LEADS:
JPMS/ML CO-MGRS:
ABN/BOFA/BARCAP/CITI*100%
POT*
|
Cls
|
Amt
($mm)
|
Rtgs
(M/S)
|
WAL
|
E.F.
|
L.F.
|
Bmrk/Level
|
YLD
|
Price
|
CPN
|
|
A-1
|
150.000
|
A-1+/P-1
|
0.30
|
04/08
|
09/08
|
IntL
+ 11
|
|
100.000000
|
5.67225
|
|
A-2A
|
75.000
|
Aaa/AAA
|
1.00
|
07/09
|
04/10
|
EDSF
+ 50
|
5.463
|
99.998275
|
5.40
|
|
X-0X
|
000.000
|
Xxx/XXX
|
1.00
|
07/09
|
04/10
|
1m
L + 42
|
|
100.000000
|
|
|
A-3A
|
134.050
|
Aaa/AAA
|
2.31
|
09/11
|
06/12
|
SWPS
+ 65
|
5.410
|
99.978427
|
5.34
|
|
X-0X
|
000.000
|
Xxx/XXX
|
2.31
|
09/11
|
06/12
|
1m
L + 47
|
|
100.000000
|
|
|
B
|
19.798
|
A3/A
|
3.08
|
09/12
|
09/13
|
SWPS
+ 150
|
6.268
|
99.978598
|
6.18
|
PRICED
TO 14% CPR AND 10% CLEAN UP CALL
XXXXXXX
XXXXX XXXXX AND DELIVERS SETTLEMENT: THURSDAY, SEPTEMBER 27th FLAT
The
issuer has filed a registration statement (including a prospectus) with the
SEC
for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting XXXXX on
the
SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter
or any dealer participating in the offering will arrange to send you the
prospectus if you request it by calling the toll-free number at
0-000-000-0000.
A
written prospectus may also be obtained from your Xxxxxxx Xxxxx sales
representative, from Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 4
World Financial Center, FL 07, New York NY or, in Canada, from Xxxxxxx Xxxxx
Canada Inc., 000 Xxx Xxxxxx-Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0.
This
communication is intended for the sole use of the person or entity to whom
it is
provided by us.
Any
legends, disclaimers or notices that appear below were automatically generated,
are not applicable to this message, and should be disregarded.
