Underwriting Agreement Caterpillar Financial Asset Trust 2008-A Class A-1 3.005% Asset Backed Notes Class A-2a 4.09% Asset Backed Notes Class A-2b Floating Rate Asset Backed Notes Class A-3 4.94% Asset Backed Notes
EXHIBIT
1.1
Caterpillar
Financial Asset Trust 2008-A
Class
A-1 3.005% Asset Backed Notes
Class
A-2a 4.09% Asset Backed Notes
Class
A-2b Floating Rate Asset Backed Notes
Class
A-3 4.94% Asset Backed Notes
April
22, 2008
Barclays
Capital Inc.
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated,
as
Representatives of the several Underwriters
named
in Schedule I hereto
c/o Barclays
Capital Inc.
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
Ladies
and Gentlemen:
1. Introductory.
Caterpillar Financial Funding Corporation, a Nevada corporation (the "Depositor"), proposes
to cause Caterpillar Financial Asset Trust 2008-A (the "Issuing Entity") to
issue $182,000,000 aggregate principal amount of Class A-1 3.005% Asset Backed
Notes (the "Class A-1
Notes"), $105,000,000 aggregate principal amount of Class A-2a 4.09%
Asset Backed Notes (the "Class A-2a Notes"),
$122,000,000 aggregate principal amount of Class A-2b Floating Rate Asset Backed
Notes (the “Class A-2b
Notes”) and $199,671,000 aggregate principal amount of Class A-3 4.94%
Asset Backed Notes (the "Class A-3 Notes," and
together with the Class A-1 Notes, the Class A-2a Notes and the Class A-2b
Notes, the "Notes") and to sell
the Notes to the several underwriters named in Schedule I hereto (the "Underwriters"), for
whom you are acting as representatives (the "Representatives").
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 April 1, 2008
(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").
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Simultaneously
with the issuance and sale of the Notes as contemplated herein, the Issuing
Entity will issue $33,387,349 aggregate principal amount of Asset Backed
Certificates (the "Certificates"), each
such Certificate representing a fractional undivided interest in the Issuing
Entity.
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 April 1, 2008 (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 April 29, 2008 (as amended and supplemented from time to time, the "Trust Agreement"),
between the Depositor and BNYM (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 each
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
April 22, 2008 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 April 22, 2008 (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.
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(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 4:00 p.m., New York time, on April 22, 2008, 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.
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(d) The
computer tape of the Receivables created as of April 1, 2008, and made available
to the Representatives 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 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 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.
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(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 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 Notes by the Underwriters, 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.
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(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 Underwriters in their 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 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 each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Depositor,
(a) at a purchase price of 99.860000% 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 99.814316%
of the principal amount thereof, the respective principal amount of the Class
A-2a Notes set forth opposite the name of such Underwriter in Schedule I hereto,
(c) at a purchase price of 99.820000% of the principal amount thereof, the
respective principal amount of the Class A-2b Notes set forth opposite the name
of such Underwriter in Schedule I hereto and (d) at a purchase price of
99.778113% 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 Notes shall be made at the
office of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on April 29, 2008 (the "Closing
Date"). Delivery of the Notes shall be made against payment of
the purchase price in immediately available funds drawn to the order of the
Depositor. The Notes to be so delivered will be initially represented by one or
more Notes registered in the name of "Cede & Co.," the nominee of The
Depository Trust Company ("DTC"). The interests
of beneficial owners of the Notes will be represented by book entries on the
records of DTC and participating members thereof. Definitive Notes will be
available only under limited circumstances set forth in the
Indenture.
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4. Offering by
Underwriters. It is understood that the Underwriters propose
to offer the 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 each of the
Underwriters 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 Underwriters, 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
Representatives 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
Representatives 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 Representatives with a copy for its review prior
to filing and will not file any such proposed amendment or supplement to which
the Representatives reasonably object. 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 Representatives of such timely filing.
(c) The
Depositor will advise the Representatives promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus, and will not effect
such amendment or supplement without the Representatives' consent, which consent
will not unreasonably be withheld. The Depositor will also advise the
Representatives 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 Representatives
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
Representatives 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.
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(e) The
Depositor will furnish to the Underwriters 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 Underwriters
request.
(f) The
Depositor will assist the Representatives 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
Representatives designates and will continue to assist the Representatives 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 Underwriters shall cease to maintain a secondary market
in the Notes, whichever occurs first, the Depositor will deliver to the
Representatives 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
Representatives (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
Representatives 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.
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(k) 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 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 Representatives, 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 Underwriters, (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 Underwriters 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 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 Financial
Industry Regulatory Authority and (ix) the fees and expenses of ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 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 Underwriters. The obligations of the
Underwriters to purchase and pay for the 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 Representatives,
shall be contemplated by the Commission or by any authority administering any
state securities or blue sky law.
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(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
Representatives 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 Representatives have previously agreed and
otherwise in form and substance satisfactory to the Representatives and their
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 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 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 Underwriters,
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.
10
(e) The
Representatives shall have received opinions of ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Senior
Corporate Attorney of CFSC, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ PLC, counsel to CFSC, the Depositor and the
Issuing Entity and such other counsel acceptable to the Underwriters addressed
to the Representatives, dated the Closing Date and satisfactory in form and
substance to the Representatives and their 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 this
Agreement, 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 this
Agreement, 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 this Agreement, 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.
11
(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) This
Agreement has 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 this Agreement, the Purchase
Agreement, the Trust Agreement, the Sale and Servicing Agreement or the
Administration Agreement by the Depositor, nor the execution of this Agreement,
the Administration Agreement, the Purchase Agreement or the Sale and Servicing
Agreement by CFSC, nor the consummation of any transactions contemplated in this
Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the
Interest Rate Swap Agreement, the Administration Agreement or the Sale and
Servicing Agreement (such agreements, excluding this Agreement, 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.
12
(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, this Agreement, 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, this Agreement,
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.
13
(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, 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.
14
(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 this Agreement
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 and the information under the caption
“Description of the Notes—The Swap Counterparty,” 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 and the information under the caption “Description of the
Notes—The Swap Counterparty,” 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.
15
(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, the
Administration Agreement, the Notes and the Certificates.
(xxxi) The
Indenture, the Interest Rate Swap Agreement, 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 this Agreement 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.
16
(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 Underwriters may
reasonably request. The opinions set forth in clauses (xiv), (xv) and (xix) of
this Section 7(e) shall be given by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP or
such other outside counsel to CFSC, the Depositor and the Issuing Entity as may
be acceptable to the Underwriters.
(f) The
Representatives shall have received an opinion addressed to them of ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇.
(g) The
Representatives shall have received an opinion addressed to them of Boult,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ PLC, LLP 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
Representatives shall have received an opinion addressed to them of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
17
(i) The
Representatives shall have received an opinion addressed to them of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP in its capacity as Special Counsel to the
Underwriters, dated the Closing Date, with respect to the validity of the Notes
and such other related matters as the Representatives 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
Representatives shall have received an opinion addressed to them, the Depositor
and the Servicer of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP in its capacity as counsel to the
Indenture Trustee, dated the Closing Date, in form and substance satisfactory to
the Representatives.
(k) The
Representatives shall have received an opinion addressed to them, the Depositor
and the Servicer of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the Owner Trustee,
and such other counsel acceptable to the Representatives and their counsel,
dated the Closing Date and satisfactory in form and substance to the
Representatives and their 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 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, 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, 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, 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.
18
(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 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
Representatives shall have received an opinion addressed to them, the Depositor
and the Servicer of counsel to the Swap Counterparty acceptable to the
Representatives, dated the Closing Date, in form and substance satisfactory to
the Representatives.
(m) The
Representatives 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
Representatives 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 A-1 Notes shall have been rated "A-1+" by Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P") and "P-1" by
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), the Class A-2a Notes shall have
been rated "AAA" by S&P and "Aaa" by Moody's, the Class A-2b 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, and in each case
shall not have been placed on any creditwatch or review with a negative
implication for downgrade.
19
(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, $33,387,349 aggregate principal amount of the Certificates
shall have been issued and purchased by the Depositor.
(r) The
Depositor will provide or cause to be provided to the Representatives such
conformed copies of such opinions, certificates, letters and documents as they
reasonably request.
8. Indemnification and
Contribution. (a) The Depositor 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) (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, except 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 any
Underwriter through the Representatives specifically for use therein, or (ii)
arise out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in any Permitted Underwriter
Communication (as defined herein) to the extent, but only to the extent, that
any such losses, claims, damages, expenses or liabilities arise out of any
untrue statement or alleged untrue statement of a material fact contained in any
Issuer Information (as defined herein); and, in each case, 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. 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 any Underwriter within the meaning of the
Act.
(b) Each
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 such Underwriter through the
Representatives 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
untrue statement or alleged untrue statement of a material fact contained in 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.
20
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 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 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 (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.
21
(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 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
Depositor 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 Depositor 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 Depositor 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 Depositor 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. The Depositor 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,
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), 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.
The
contribution agreement in this subsection (d) shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act.
22
9. Defaults of
Underwriters. If any Underwriter or Underwriters default on their
obligations to purchase the Notes hereunder on the Closing Date and the
aggregate principal amount of the Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of the Notes, the Representatives may make arrangements
satisfactory to the Representatives and the Depositor for the purchase of such
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 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 Notes with respect to such default or defaults
exceeds 10% of the total principal amount of the Notes and arrangements
satisfactory to the Representatives and the Depositor for the purchase of such
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 Depositor, 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 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.
11. 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 each of the Underwriters 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 any 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
Notes. If for any reason the purchase of the Notes by the Underwriters 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 Underwriters pursuant to Section
8 of this Agreement shall remain in effect. If for any reason the
purchase of the 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 Depositor 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 Notes. Nothing contained in this Section 11 shall limit the
recourse of the Depositor 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 Barclays Capital Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: Asset Securitization
Group, and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, 4 World
Financial Center, North Tower, 10th Floor,
New York, New York, 10080, 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, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secretary; if sent to CFSC, will be mailed,
delivered or telegraphed, and confirmed to it at Caterpillar Financial Services
Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Secretary. Any such notice will take effect at the time of
receipt.
23
13. 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 Notes from any
Underwriter shall be deemed to be a successor of such Underwriter merely because
of such purchase.
14. Representation. The
Representatives will act for the several Underwriters in connection with the
transactions contemplated by this Agreement, and any action under this Agreement
taken by the Representatives will be binding upon all of the
Underwriters.
15. 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.
16. Applicable Law. This
Agreement will be governed by, and construed in accordance with, the laws of the
State of New York.
17. Representations, Warrants
and Covenants of the Underwriters. (a) Each of the
Underwriters hereby represents and warrants to, and agrees with, the Depositor
and CFSC that such Underwriter (i) shall not take any order for any 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) Each
of the Underwriters severally, and not jointly, covenants and agrees with the
Depositor that other than the Preliminary Prospectus and the Prospectus, without
the Depositor's prior written approval, such 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) each
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 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.
24
18. Arm’s Length
Transaction. The Depositor and CFSC acknowledge and agree that
each 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, neither the
Representatives nor any other Underwriter is 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 no Underwriter shall have any responsibility or liability to the Depositor
or CFSC with respect thereto. Any review by the Underwriters of the Depositor,
CFSC, the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Underwriters and
shall not be on behalf of the Depositor or CFSC.
25
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 several Underwriters in
accordance with the terms of this Agreement.
Very
truly yours,
By:/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title: Treasure
CATERPILLAR
FINANCIAL SERVICES CORPORATION
By: /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Title: Treasure
The
foregoing Underwriting
Agreement
is hereby confirmed and
accepted
as of the date first written above.
BARCLAYS
CAPITAL INC.
By:_/s/ ▇▇▇
▇▇▇
Name:
▇▇▇ ▇▇▇
Title:
Managing Director
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
on
behalf of themselves and as Representatives
of
the Underwriters
26
SCHEDULE
I
|
Underwriters
|
Principal
Amount
of
Class A-1
Notes
|
Principal
Amount
of
Class A-2a
Notes
|
Principal
Amount
of
Class A-2b
Notes
|
Principal
Amount
of
Class A-3
Notes
|
||||||||||||
|
Barclays
Capital
Inc.
|
$ | 63,700,000 | $ | 36,750,000 | $ | 42,700,000 | $ | 69,884,000 | ||||||||
|
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
|
$ | 63,700,000 | $ | 36,750,000 | $ | 42,700,000 | $ | 69,883,000 | ||||||||
|
ABN
AMRO
Incorporated
|
$ | 13,650,000 | $ | 7,875,000 | $ | 9,150,000 | $ | 14,976,000 | ||||||||
|
Banc
of America Securities LLC
|
$ | 13,650,000 | $ | 7,875,000 | $ | 9,150,000 | $ | 14,976,000 | ||||||||
|
Citigroup
Global Markets
Inc.
|
$ | 13,650,000 | $ | 7,875,000 | $ | 9,150,000 | $ | 14,976,000 | ||||||||
|
▇.▇.
▇▇▇▇▇▇ Securities
Inc.
|
$ | 13,650,000 | $ | 7,875,000 | $ | 9,150,000 | $ | 14,976,000 | ||||||||
|
Total
|
$ | 182,000,000 | $ | 105,000,000 | $ | 122,000,000 | $ | 199,671,000 | ||||||||
27
ANNEX
A
Bond Size Free Writing
Prospectus
At:
4/22 14:07:40
*NEW
ISSUE* $608+MM CATERPILLAR FINANCIAL ASSET TRUST 2008-A
BOOKS/LEADS:
BARCLAYS / ML
CO-MANAGERS:
ABN, ▇▇▇, CITI, JPM
TIMING:
PRICING THIS AFTERNOON/ALLOCATIONS IN 30 Mins (ish)
|
Cls
|
$Amt-mm
|
WAL
|
M/S&P
|
WINDOW
|
▇.▇▇▇▇▇
|
▇.▇▇▇▇▇
|
BENCH+TALK
|
STATUS
|
|
A-1
|
182.000
|
0.35
|
P-1/A-1+
|
8
|
12/26/08
|
04/27/09
|
IntL+4
|
SUBJ
|
|
A-2A
|
105.000
|
1.20
|
Aaa/AAA
|
14
|
01/25/10
|
12/27/10
|
EDSF+115
|
SUBJ
|
|
A-2B
|
122.000
|
1.20
|
Aaa/AAA
|
14
|
01/25/10
|
12/27/10
|
1mL+115
|
SUBJ
|
|
A-3
|
199.671
|
2.45
|
Aaa/AAA
|
17
|
05/25/11
|
04/25/14
|
IntS+175
|
SUBJ
|
DISTRIBUTION
DATES: 25th of each
month
FIRST
PAYMENT DATE: May 27, 2008
EXPECTED
SETTLE: April 29, 2008
All
Classes ERISA Eligible
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 ▇▇▇▇▇ on the
SEC Web site at ▇▇▇.▇▇▇.▇▇▇.
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 ▇-▇▇▇-▇▇▇-▇▇▇▇, requesting to be connected to Ext.
2663.
28
ANNEX
B
Pricing Free Writing
Prospectus
*NEW
ISSUE* $608+MM CATERPILLAR FINANCIAL ASSET TRUST 2008-A
BOOKS/LEADS:
BARCLAYS / ML
CO-MANAGERS: ABN, ▇▇▇,
CITI, JPM|
Cls
|
$Amt-mm
|
WAL
|
M/S&P
|
WINDOW
|
SPREAD
|
Yield
|
Coupon
|
Dollar
|
|
A-1
|
182.000
|
0.35
|
P-1/A-1+
|
8
|
IntL+4
|
3.0050
|
3.005
|
100
|
|
A-2A
|
105.000
|
1.20
|
Aaa/AAA
|
14
|
EDSF+115
|
4.130
|
4.09
|
99.994316
|
|
A-2B
|
122.000
|
1.20
|
Aaa/AAA
|
14
|
1mL+115
|
100
|
||
|
A-3
|
199.671
|
2.45
|
Aaa/AAA
|
17
|
IntS+175
|
4.9920
|
4.94
|
99.998113
|
DISTRIBUTION
DATES: 25th of each
month
FIRST
PAYMENT DATE: May 27, 2008
SETTLE:
April 29, 2008
All
Classes ERISA Eligible
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 ▇▇▇▇▇ on the
SEC Web site at ▇▇▇.▇▇▇.▇▇▇.
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 ▇-▇▇▇-▇▇▇-▇▇▇▇, requesting to be connected to Ext.
2663.
29