EXECUTION COPY
Class B Note Underwriting Agreement
Caterpillar Financial Asset Trust 2004-A
Class B 3.71% Asset Backed Notes
May 18, 2004
▇. ▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. Introductory. Caterpillar Financial Funding Corporation, a Nevada
corporation (the "Seller"), proposes to cause Caterpillar Financial Asset
Trust 2004-A (the "Trust") to issue $18,161,000, aggregate principal amount
of 3.71% Class B Asset Backed Notes (the "Class B Notes") and to sell the
Class B Notes to ▇. ▇. ▇▇▇▇▇▇ Securities Inc. (the "Underwriter"). The
assets of the Trust will include, among other things, a pool of fixed-rate
retail installment sale contracts and finance leases (the "Receivables")
secured by new and used machinery manufactured primarily by Caterpillar Inc.
("Caterpillar"), including rights to receive certain payments with respect to
such Receivables, and security interests in the machinery financed by the
Receivables (the "Financed Equipment"), and the proceeds thereof. The
Receivables will be sold to the Trust by the Seller. The Receivables will be
serviced for the Trust by Caterpillar Financial Services Corporation, a
Delaware corporation (the "Servicer" or "CFSC"). The Notes will be issued
pursuant to the Indenture to be dated as of May 1, 2004 (as amended and
supplemented from time to time, the "Indenture"), between the Trust 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 Trust will issue $183,400,000 aggregate principal
amount of Class A-1 1.37040% Asset Backed Notes (the "Class A-1 Notes"),
$164,000,000 aggregate principal amount of Class A-2 2.18% Asset Backed Notes
(the "Class A-2 Notes") and $283,300,000 aggregate principal amount of Class
A-3 3.13% Asset Backed Notes (the "Class A-3 Notes," together with the Class
A-1 Notes and the Class A-2 Notes, the "Class A Notes," and together with the
Class B Notes, the "Notes") and $9,881,297 aggregate principal amount of
Asset Backed Certificates (the "Certificates," together with the Notes
sometimes referred to collectively herein as the "Securities"), each such
certificate representing a fractional undivided interest in the Trust. The
Class 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 Seller, CFSC 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 May 1, 2004 (as amended and supplemented from time to time, the
"Sale and Servicing Agreement"), among the Trust, the Seller and the Servicer
or, if not defined therein, in the Indenture or the Trust Agreement to be
dated as of May 1, 2004 (as amended and supplemented from time to time, the
"Trust Agreement"), between the Seller and Chase Manhattan Bank USA, National
Association, a national banking association as owner trustee under the Trust
Agreement (the "Owner Trustee").
2. Representations and Warranties of the Seller and CFSC. Each of the
Seller and CFSC, with respect to itself only (except that any representation
or warranty relating to the Trust is made by the Seller on its behalf), and
not with respect to the other, represents and warrants to and agrees with the
Underwriter that:
(a) The Seller meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (Registration No. 333-103949) on such Form S-3, including a
prospectus and a form of prospectus supplement, for registration under the
Act of the offering and sale of the Notes. The Seller may have filed one or
more amendments thereto, each of which amendments has previously been
furnished to the Underwriter. The Seller will also file with the Commission
a prospectus supplement in accordance with Rule 424(b) under the Act. The
Seller has included in the Registration Statement, as amended at the
Effective Date (as hereinafter defined), all information required by the Act
and the rules thereunder to be included in the Prospectus (as hereinafter
defined) with respect to the Notes and the offering thereof. As filed, the
registration statement as amended, the form of prospectus supplement, and any
prospectuses or prospectus supplements filed pursuant to Rule 424(b) under
the Act relating to the Notes shall, except to the extent that the
Underwriter shall agree in writing to a modification, be in all substantive
respects in the form furnished to the Underwriter prior to the Execution Time
(as hereinafter defined) or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes (beyond that contained in the latest preliminary prospectus
supplement which has previously been furnished to the Underwriter) as the
Seller has advised the Underwriter, prior to the Execution Time, will be
included or made therein.
For purposes of this Agreement, "Effective Time" means the date
and time as of which each such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, and "Effective Date" means the date of the Effective Time.
"Execution Time" shall mean the date and time that this Agreement is executed
and delivered by the parties hereto. Each such registration statement, as
amended at the Effective Time, and including the exhibits thereto and any
material incorporated by reference therein, is hereinafter referred to as the
"Registration Statement," and any prospectus supplement (the "Prospectus
Supplement") relating to the Notes, as filed with the Commission pursuant to
and in accordance with Rule 424(b) under the Act is, together with the
prospectus filed as part of the Registration Statement (such prospectus, in
the form it appears in the Registration Statement or in the form most
recently revised and filed with the Commission pursuant to Rule 424(b) being
hereinafter referred to as the "Basic Prospectus"), hereinafter referred to
as the "Prospectus". "Preliminary Prospectus" means any preliminary
prospectus to the Prospectus which describes the Notes and the offering
thereof and which is used prior to the filing of the Prospectus. "Rule 424"
refers to such rule under the Act. Any reference herein to the Registration
Statement, the Prospectus or any Prospectus Supplement shall be deemed to
refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on or before the Effective Date of the
Registration Statement or the issue date of the Prospectus or any Prospectus
Supplement, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Prospectus or any Prospectus Supplement shall be deemed to
refer to and include the filing of any document under the Exchange Act after
the Effective Date of the Registration Statement, or the issue date of the
Prospectus or any Prospectus Supplement, as the case may be, deemed to be
incorporated therein by reference.
(b) On the Effective Date and on the date of this Agreement, the
Registration Statement did or does, and, when the Prospectus was first filed
and on the Closing Date (as defined below), the Prospectus and any Prospectus
Supplement did or will comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the respective rules and
regulations of the Commission thereunder (the "Rules and Regulations") and of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
On the Effective Date, the Registration Statement did not and will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and on
the date of any filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectus, together with any Prospectus Supplement, did not or will not
include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Seller makes no representation or warranty as to the information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished in writing to the
Seller by the Underwriter specifically for use in connection with preparation
of the Registration Statement or the Prospectus.
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) there has not been any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, management,
financial condition, stockholders' equity, results of operations, regulatory
status or business prospects of the Seller or CFSC, and (ii) neither the
Seller nor CFSC has entered into any transaction or agreement (whether or not
in the ordinary course of business) material to it that, in either case,
would reasonably be expected to materially adversely affect the interests of
the holders of the Notes, other than as set forth or contemplated in the
Prospectus.
(d) The computer tape of the Receivables created as of May 1, 2004, 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 Seller and CFSC is duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction
of incorporation and is qualified to transact business in and is in good
standing under the laws of each state in which its activities require such
qualification, and has full power, authority and legal right to own its
properties and conduct its business as such properties are presently owned
and such business is presently conducted.
(f) This Agreement has been duly authorized, executed and delivered by each
of the Seller and CFSC.
(g) On the date of this Agreement and on the Closing Date, the
representations and warranties of CFSC and the Seller in each of the Basic
Documents to which they are a party will be true and correct.
(h) CFSC's sale, transfer, assignment, set over and conveyance of the
Receivables to the Seller as of the Closing Date will vest in the Seller all
of CFSC's right, title and interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
(i) The Seller's sale, transfer, assignment, set over and conveyance of the
Receivables to the Trust as of the Closing Date will vest in the Trust all of
the Seller's right, title and interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
(j) The Trust's grant of a security interest in the Receivables to the
Indenture Trustee pursuant to the Indenture will vest in the Indenture
Trustee, for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other encumbrance.
(k) When the Class B Notes have been duly executed and delivered by the
Owner Trustee on behalf of the Trust, authenticated by the Indenture Trustee
in accordance with the Indenture and delivered and paid for pursuant to this
Agreement, the Class B Notes will be duly issued, will constitute legal,
valid and binding obligations of the Trust enforceable against the Trust in
accordance with their terms and will be entitled to the benefits and security
afforded by the Indenture, except (x) the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, 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) Neither the Trust nor the Seller 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.
(m) Each of CFSC and the Seller has the power and authority to execute and
deliver this Agreement and to carry out the terms of this Agreement.
(n) The execution, delivery and performance of this Agreement and the
consummation by each of CFSC and the Seller 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 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.
(o) There are no proceedings or investigations pending or, to CFSC's or the
Seller'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.
(p) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration
Statement by the Act or by the Rules and Regulations and which have not been
so described or filed.
(q) The Seller (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 Seller'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 Seller is a party or by which the Seller is
bound or to which any of the Seller'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 Seller or any of the Seller'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 Seller.
(r) The Basic Documents conform in all material respects with the
descriptions thereof contained in the Registration Statement and the
Prospectus.
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 Seller agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Seller, at a
purchase price of 99.576544% of the principal amount thereof, $18,161,000 in
principal amount of the Class B Notes. Delivery of and payment for the Class
B Notes shall be made at the office of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on May
25, 2004 (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 Seller. 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 Prospectus.
5. Covenants of the Seller. The Seller covenants and agrees with the
Underwriter that:
(a) Immediately following the execution of this Agreement, the Seller will
prepare a Prospectus Supplement setting forth the amount of Notes covered
thereby and the terms thereof not otherwise specified in the Basic
Prospectus, the price at which such Notes are to be purchased by the
Underwriter, the initial public offering price, the selling concessions and
allowances, and such other information as the Seller deems appropriate and
shall furnish a copy to the Underwriter in accordance with Section 5(b) of
this Agreement. The Seller will transmit the Prospectus including such
Prospectus Supplement to the Commission pursuant to Rule 424(b) by a means
reasonably calculated to result in filing that complies with all applicable
provisions of Rule 424(b). The Seller will advise the Underwriter promptly
of any such filing pursuant to Rule 424(b).
(b) Prior to the termination of the offering of the Notes, the Seller will
not file any amendment of the Registration Statement or supplement to the
Prospectus unless the Seller has furnished the 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 the Prospectus is otherwise required under
Rule 424(b), the Seller will file the Prospectus, properly completed, and any
supplement thereto, with the Commission pursuant to and in accordance with
the applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Underwriter of such timely filing.
(c) The Seller will advise the Underwriter promptly of any proposal to
amend or supplement the Registration Statement as filed or the Prospectus,
and will not effect such amendment or supplement without the Underwriter's
consent, which consent will not unreasonably be withheld. The Seller 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 Seller 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 Seller will
use its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible the lifting of any issued stop order.
(d) If, at any time when a prospectus relating to the Notes is required to
be delivered under the Act, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Registration Statement or supplement the Prospectus to comply with the Act or
the Exchange Act or the respective Rules and Regulations thereunder, the
Seller promptly will notify the 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 Seller will furnish to the Underwriter copies of the Registration
Statement (one of which will be signed and will include all exhibits), each
related preliminary prospectus or prospectus supplement, the Prospectus and
all amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Underwriter requests.
(f) The Seller 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 Seller nor
CFSC shall be required to qualify to do business in any jurisdiction where it
is now not qualified or to take any action which would subject it to general
or unlimited service of process in any jurisdiction in which it is now not
subject to service of process.
(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 Seller 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 Seller 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
Seller 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 Seller shall cause the computer
records of the Seller and the Servicer relating to the Receivables to be
marked to show the Trust's absolute ownership of the Receivables, and from
and after the Closing Date neither the Seller nor the Servicer shall take any
action inconsistent with the Trust's ownership of such Receivables, other
than as permitted by the Sale and Servicing Agreement.
(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 Seller, the Seller 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
Seller, CFSC or any trust originated, directly or indirectly, by the Seller
or CFSC will offer to sell or sell notes (other than the Notes)
collateralized by, or certificates (other than the Certificates) evidencing
an ownership interest in, receivables generated pursuant to fixed-rate retail
installment sale contracts and finance leases and secured by equipment
similar to the Financed Equipment.
(l) The Seller and CFSC each will deliver to the Underwriter, all opinions,
certificates and other documents or information delivered to the Owner
Trustee and the Indenture Trustee at the time such opinions, certificates and
other documents or information are delivered to the Owner Trustee or the
Indenture Trustee pursuant to the Sale and Servicing Agreement and the
Purchase Agreement with respect to perfection and priority of CFSC's interest
in the Receivables.
6. Payment of Expenses. The Seller will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the preparation, issuance and delivery of the
Notes to the Underwriter, (iii) the fees and disbursements of the Seller's
counsel and accountants, (iv) the qualification of the Notes under securities
laws in accordance with the provisions of Section 5(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 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
National Association of Securities Dealers, Inc. and (ix) the fees and
expenses of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP in its role as counsel to the
Trust 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 Seller
and CFSC herein, to the accuracy of the statements of officers of the Seller
and CFSC made pursuant to the provisions hereof, to the performance by the
Seller 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 Seller or the
Underwriter, shall be contemplated by the Commission or by any authority
administering any state securities or blue sky law.
(b) The Prospectus and any supplements thereto shall have been filed (if
required) with the Commission in accordance with the Rules and Regulations
and Section 5(a) hereof.
(c) On or prior to the date of this Agreement and on or prior to the
Closing Date, the 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 Trust,
the Seller 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; (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.
(e) The Underwriter shall have received opinions of ▇▇▇▇▇ ▇▇▇▇▇, Senior
Corporate Attorney of CFSC, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, PLLC, counsel to CFSC, the Seller and the Trust 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, the
Sale and Servicing Agreement and the Custodial Agreement and had at all
times, and now has, the power, authority and legal right to acquire,
own and sell the Receivables.
(ii) The Seller has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Nevada with
full corporate power and authority to own its properties and conduct
its business, as presently owned and conducted by it, and to enter into
and perform its obligations under the Underwriting Agreements, the
Purchase Agreement, the Trust Agreement, the Sale and Servicing
Agreement, the Administration Agreement and the Custodial Agreement and
had at all times, and now has, the power, authority and legal right to
acquire, own and sell the Receivables.
(iii) CFSC is duly qualified to do business and is in good standing, and has
obtained all necessary licenses and approvals in each jurisdiction in
which failure to qualify or to obtain such license or approval would
render any Receivable unenforceable by the Seller, the Owner Trustee or
the Indenture Trustee.
(iv) The Seller is duly qualified to do business and is in good standing,
and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to qualify or to obtain such license or
approval would have a material adverse effect on the Receivables as a
whole.
(v) When the Certificates have been duly executed, authenticated and
delivered by the Owner Trustee in accordance with the Trust Agreement
and delivered to the Seller pursuant to the Sale and Servicing
Agreement, the Certificates will be legally issued, fully paid and
nonassessable obligations of the Trust 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 Trust, authenticated by the Indenture Trustee
in accordance with the Indenture and delivered and paid for pursuant to
the Underwriting Agreements, the Notes will be duly issued, will
constitute legal, valid and binding obligations of the Trust
enforceable against the Trust in accordance with their terms and will
be entitled to the benefits and security afforded by the Indenture,
except (x) the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, 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, the Administration Agreement and the Custodial
Agreement has been duly authorized, executed and delivered by the
Seller, and is a legal, valid and binding obligation of the Seller
enforceable against the Seller in accordance with its terms, except (x)
the enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights and (y) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(viii) The Underwriting Agreements have been duly authorized, executed
and delivered by each of the Seller and CFSC.
(ix) Each of the Administration Agreement, the Purchase Agreement, the Sale
and Servicing Agreement and the Custodial Agreement has been duly
authorized, executed and delivered by CFSC and is a legal, valid and
binding obligation of CFSC enforceable against CFSC in accordance with
its terms, except (x) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, 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 Seller, nor the sale, transfer,
assignment, set over and conveyance of the Receivables from the Seller
to the Trust, nor the grant of a security interest in the Trust Estate
by the Trust to the Indenture Trustee, nor the assignment by the Seller
of its right, title and interest in the Purchase Agreement to the
Trust, nor the grant of the security interest in the Collateral to the
Indenture Trustee pursuant to the Indenture, nor the execution and
delivery of the Underwriting Agreements, the Purchase Agreement, the
Trust Agreement, the Sale and Servicing Agreement, the Administration
Agreement or the Custodial Agreement by the Seller, nor the execution
of the Underwriting Agreements, the Administration Agreement, the
Purchase Agreement, the Sale and Servicing Agreement or the Custodial
Agreement by CFSC, nor the consummation of any transactions
contemplated in the Underwriting Agreements, the Purchase Agreement,
the Trust Agreement, the Indenture, the Administration Agreement, the
Sale and Servicing Agreement or the Custodial Agreement (such
agreements, excluding the Underwriting Agreements, being for purposes
of this clause (e) and elsewhere herein, as applicable, collectively,
the "Basic Documents"), nor the fulfillment of the terms thereof by
CFSC, the Seller or the Trust, as the case may be, will (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 Seller or, to the best of such
counsel's knowledge after due inquiry, of any indenture or other
agreement or instrument to which CFSC or the Seller is a party or by
which either of them is bound, or (2) result in a violation of or
contravene the terms of any statute, order or regulation applicable to
CFSC or the Seller of any court, regulatory body, administrative agency
or governmental body having jurisdiction over either of them.
(xi) There are no actions, proceedings or investigations pending or, to the
best of such counsel's knowledge, threatened before any court,
administrative agency, or other tribunal (1) asserting the invalidity
of the Trust or any of the Basic Documents, (2) seeking to prevent the
consummation of any of the transactions contemplated by any of the
Basic Documents or the execution and delivery thereof, or (3) that
could reasonably be expected to materially and adversely affect the
performance (A) by CFSC of its obligations under, or the validity or
enforceability of, the Underwriting Agreements, the Administration
Agreement, the Purchase Agreement, the Sale and Servicing Agreement or
the Custodial Agreement, (B) by the Seller of its obligations under, or
the validity or enforceability of, the Underwriting Agreements, the
Purchase Agreement, the Trust Agreement, the Sale and Servicing
Agreement or the Custodial Agreement, or (C) by the Servicer of its
obligations under, or the validity or enforceability of, the Sale and
Servicing Agreement.
(xii) To the best knowledge of such counsel, no default exists and no event
has occurred which, with notice, lapse of time or both, would
constitute a default in the due performance and observance of any term,
covenant or condition of any agreement to which CFSC or the Seller is a
party or by which either of them is bound, which default is or would
have a material adverse effect on the financial condition, earnings,
business or properties of CFSC and its subsidiaries, taken as a whole.
(xiii) The Assignment (as defined in the Purchase Agreement) dated as of
the Closing Date from CFSC to the Seller has been duly authorized,
executed and delivered by CFSC.
(xiv) Should CFSC become the debtor in a case under the Bankruptcy Code, if
the matter were properly briefed and presented to a court, the court
should hold that (1) the transfer of the Receivables by CFSC to the
Seller in the manner set forth in the Purchase Agreement would
constitute an absolute sale of the Receivables, rather than a borrowing
by CFSC secured by the Receivables, and thus (2) the Seller's rights to
the Receivables would not be impaired by the operation of Section
362(a) of the Bankruptcy Code.
(xv) Should CFSC become the debtor in a case under the Bankruptcy Code, and
the Seller would not otherwise properly be a debtor in a case under the
Bankruptcy Code, and if the matter were properly briefed and presented
to a court exercising bankruptcy jurisdiction, the court, exercising
reasonable judgment after full consideration of all relevant factors,
would not order, over the objection of the Certificateholders or the
Noteholders, the substantive consolidation of the assets and
liabilities of the Seller with those of CFSC based on any legal
theories currently subscribed to by federal courts exercising
bankruptcy jurisdiction.
(xvi) Such counsel is familiar with the Servicer's standard operating
procedures relating to the Servicer's acquisition of a perfected first
priority security interest in the equipment financed by the Servicer
pursuant to equipment installment sale contracts in the ordinary course
of the Servicer's business. Assuming that the Servicer's standard
procedures have been followed with respect to the perfection of
security interests in the Financed Equipment (and such counsel has no
reason to believe that such procedures have not been followed), the
Servicer has acquired or will acquire a perfected first priority
security interest in the Financed Equipment.
(xvii) The Purchase Agreement grants to the Seller a valid security
interest in CFSC's rights in the Receivables and the proceeds thereof.
The Sale and Servicing Agreement grants to the Trust a valid security
interest in the Seller's rights in the Receivables and the proceeds
thereof. The Indenture grants to the Indenture Trustee a valid
security interest in the Trust's rights in the Receivables and the
proceeds thereof.
(xviii) The Receivables are chattel paper as defined in the Uniform
Commercial Code (the "UCC").
(xix) Immediately prior to the transfer of the Receivables and the proceeds
thereof to the Trust, the Seller had a first priority perfected
security interest in the Receivables and the proceeds thereof.
Immediately prior to the transfer of the Receivables and the proceeds
thereof to the Indenture Trustee, the Trust had a first priority
perfected security interest in the Receivables and the proceeds
thereof. The Indenture Trustee has a first priority perfected security
interest in the Receivables and the proceeds thereof. The opinion
covered by this paragraph (xix) shall be subject to customary UCC
exceptions and qualifications.
(xx) The statements in the Prospectus under the headings "Risk Factors--The
notes may suffer losses if the interests of other persons in the
receivables are superior to the trust's interest" and "Certain Legal
Aspects of the Receivables" to the extent they constitute matters of
law or legal conclusions with respect thereto, are correct in all
material respects.
(xxi) The statements contained in the Prospectus and any supplement thereto
under the headings "Description of the Notes," "Description of the
Certificates" and "Description of the Transfer and Servicing
Agreements," insofar as such statements constitute a summary of the
Notes, the Certificates, the Indenture, the Administration Agreement,
the Sale and Servicing Agreement, the 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 Seller pursuant to the Purchase Agreement and the transfer of
the Receivables to the Trust pursuant to the Sale and Servicing
Agreement and as may be required under state securities or Blue Sky
laws of various jurisdictions.
(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 Trust 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 Seller is not, and will not as a result of the offer and sale
of the Notes as contemplated in the Prospectus and the Underwriting
Agreements become, an "investment company" as defined in the Investment
Company Act or a company "controlled by" an "investment company" within
the meaning of the Investment Company Act.
(xxvii) The Registration Statement is effective under the Act, any
required filing of any Preliminary Prospectus and the Prospectus and
any supplements thereto pursuant to Rule 424(b) has been or will be
made in the manner and within the time period required by Rule 424(b),
and, to the best knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act, the Exchange Act,
the Trust Indenture Act and the Rules and Regulations.
(xxviii) 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.
(xxix) The Trust 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 Custodial Agreement, the Administration Agreement, the Notes and
the Certificates.
(xxx) The Indenture, the Sale and Servicing Agreement, the Custodial
Agreement and the Administration Agreement have been duly authorized
and, when duly executed and delivered by the Owner Trustee on behalf of
the Trust, will constitute the legal, valid and binding obligations of
the Trust, enforceable against the Trust in accordance with their
terms, except (x) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights and (y)
the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(xxxi) 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.
(xxxii) The Servicer is duly qualified to do business and is in good
standing, and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to qualify or to obtain such license or
approval would render any Receivable unenforceable by the Seller, the
Owner Trustee or the Indenture Trustee.
(xxxiii) 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.
(xxxiv) 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.
(xxxv) 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP or such other outside counsel to CFSC, the Seller and the Trust
as may be acceptable to the Underwriter.
(f) The Underwriter shall have received an opinion addressed to it of
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP in its capacity as Special Tax Counsel for
the Trust, dated the Closing Date, substantially to the effect that the
statements in the Prospectus under the headings "Summary of Terms of the
Notes--Tax Status" (to the extent relating to Federal income tax
consequences) and "Federal Income Tax Consequences" accurately describe the
material Federal income tax consequences to holders of the Notes, and the
statements in the Prospectus under the heading "ERISA Considerations," to the
extent that they constitute statements of matters of law or legal conclusions
with respect thereto, have been prepared or reviewed by such counsel and
accurately describe the material consequences to holders of the Notes under
ERISA.
(g) The Underwriter shall have received an opinion addressed to it of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, PLLC in its capacity as Special Tennessee Tax
Counsel for the Trust, dated the Closing Date, substantially to the effect
that the statements in the Prospectus under the heading "Summary of Terms of
the Notes--Tax Status" (to the extent relating to Tennessee income tax
consequences) and in the Prospectus under the heading "Certain State Income
Tax Considerations" accurately describe the material income tax consequences
in the State of Tennessee to holders of the Notes.
(h) The Underwriter shall have received an opinion addressed to it of
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ in its capacity as Special Nevada Tax Counsel for the
Trust, dated the Closing Date, substantially to the effect that the Trust
would not be subject to taxation in Nevada.
(i) The Underwriter shall have received an opinion addressed to it of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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
Seller shall have furnished or caused to be furnished to such counsel such
documents as they may reasonably request for the purpose of enabling them to
pass upon such matters.
(j) The Underwriter shall have received an opinion addressed to it, the
Seller and the Servicer of ▇▇▇▇▇▇ & 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
Seller and the Servicer of Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, 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 Trust, under the Indenture, the Custodial Agreement, the
Sale and Servicing Agreement and the Administration Agreement.
(iii) The execution and delivery of the Trust Agreement and, on behalf of the
Trust, of the Indenture, the Custodial Agreement, the Sale and
Servicing Agreement, the Administration Agreement, the Certificates and
the Notes and the performance by the Owner Trustee of its obligations
under the Trust Agreement, the Indenture, the Custodial Agreement, the
Sale and Servicing Agreement and the Administration Agreement have been
duly authorized by all necessary corporate action of the Owner Trustee
and each has been duly executed and delivered by the Owner Trustee.
(iv) The Trust Agreement, the Sale and Servicing Agreement, the Indenture,
the Custodial Agreement and the Administration Agreement constitute
valid and binding obligations of the Owner Trustee enforceable against
the Owner Trustee in accordance with their terms under the laws of the
State of New York and the State of Delaware and the Federal law of the
United States of America.
(v) The execution and delivery by the Owner Trustee of the Trust Agreement
and, on behalf of the Trust, of the Indenture, the Sale and Servicing
Agreement, the Custodial Agreement and the Administration Agreement do
not require any consent, approval or authorization of, or any
registration or filing with, any Delaware or United States Federal
governmental authority having jurisdiction over the trust power of the
Owner Trustee, other than those consents, approvals or authorizations
as have been obtained and the filing of the Certificate of Trust with
the Secretary of State of the State of Delaware.
(vi) The Owner Trustee has duly executed, authenticated and delivered the
Certificates, and has duly executed and delivered the Notes, issued on
the Closing Date on behalf of the Trust.
(vii) The execution and delivery by the Owner Trustee of the Trust Agreement
and, on behalf of the Trust, the Sale and Servicing Agreement, the
Indenture, the Custodial Agreement and the Administration Agreement and
the performance by the Owner Trustee of its obligations thereunder, do
not conflict with, result in a breach or violation of or constitute a
default under, the articles of association or bylaws of the Owner
Trustee.
(l) The 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
principal financial officer or the principal accounting officer of each of
the Seller and CFSC, in its individual capacity and as Servicer, in which
such officers shall state that, to the best of their knowledge after
reasonable investigation, (1) the representations and warranties of the
Seller, CFSC and/or the Servicer, as the case may be, contained in this
Agreement, the Trust Agreement, Purchase Agreement and the Sale and Servicing
Agreement, as applicable, are true and correct, that the Seller, CFSC and/or
the Servicer, as the case may be, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied under such
agreements at or prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by the
Commission and (ii) no material adverse change in or affecting particularly
the business or properties of the Trust, the Seller, CFSC and/or the
Servicer, as the case may be, has occurred.
(m) The 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
Seller, the transfer of the interest of the Seller in the Receivables and the
proceeds thereof to the Trust and the grant of the security interest by the
Trust in the Receivables and the proceeds thereof to the Indenture Trustee.
(n) The Class B Notes shall have been rated at least "A" by Standard &
Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and at
▇▇▇▇▇ "▇▇" by ▇▇▇▇▇'▇ Investors Service, Inc., and in each case shall not
have been placed on any creditwatch or review with a negative implication for
downgrade.
(o) The issuance of the Notes and the Certificates shall not have resulted
in a reduction or withdrawal by any Rating Agency of the current rating of
any outstanding securities issued by the Seller or any of its affiliates or
by any trust established by the Seller or any of its affiliates.
(p) On the Closing Date, $183,400,000 aggregate principal amount of Class
A-1 1.37040% Asset Backed Notes, $164,000,000 aggregate principal amount of
Class A-2 2.18% Asset Backed Notes and $283,300,000 aggregate principal
amount of Class A-3 3.13% Asset Backed Notes shall have been issued and sold
and $9,881,297 aggregate principal amount of the Certificates shall have been
issued and purchased by the Seller.
The Seller 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 Seller 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) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse 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 Seller and CFSC will not be liable in any
such case to the extent that any such loss, claim, damage, expense or
liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information
furnished to the Seller by the Underwriter specifically for use therein; and
provided, further, that the Seller and CFSC shall not be liable to the
Underwriter or any person controlling the Underwriter under the indemnity
agreement in this subsection (a) with respect to any of such documents to the
extent that any such loss, claim, damage, expense or liability of the
Underwriter or such controlling person results from the fact that the
Underwriter sold Notes to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the Prospectus or
of the Prospectus as then amended or supplemented (excluding documents
incorporated by reference), whichever is most recent, if the Seller has
previously furnished copies thereof to the Underwriter.
The indemnity agreement in this subsection (a) shall be in
addition to any liability which the Seller or CFSC may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls the Underwriter within the meaning of the Act.
(b) The Underwriter will indemnify and hold harmless the Seller and CFSC
against any losses, claims, damages, expenses or liabilities to which the
Seller and CFSC may become subject, under the Act or otherwise, insofar as
such losses, claims, damages, expenses or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Seller or CFSC by the Underwriter specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Seller or
CFSC in connection with investigating or defending any such action or claim.
The indemnity agreement in this subsection (b) shall be in
addition to any liability which the Underwriter may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Seller or CFSC within the meaning of the Act.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) of written notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the indemnifying
party of the commencement thereof, and in the event that such indemnified
party shall not so notify the indemnifying party within 30 days following
receipt of any such notice by such indemnified party, the indemnifying party
shall have no further liability under such subsection to such indemnified
party unless the indemnifying party shall have received other notice
addressed and delivered in the manner provided in Section 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 Seller 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 Seller 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 Seller 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 Seller 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 Seller 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, including, with respect to the Underwriter, the extent to which
such losses, claims, damages, expenses or liabilities (or actions in respect
thereof) result from the fact that the Underwriter sold such Notes to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus or the Prospectus as then
supplemented or amended (excluding documents incorporated by reference),
whichever is more recent, if the Seller has previously furnished copies
thereof to the Underwriter. The Seller, CFSC and the 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.
(e) 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 Seller or by a trust for
which the Seller was the depositor which securities were rated by any
nationally recognized statistical rating organization, it will not institute
against, or join any other person in instituting against, the Seller any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any Federal or state bankruptcy or
similar law.
10. Survival of Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Seller or CFSC or any of their officers and the Underwriter set forth in
or made pursuant to this Agreement or contained in certificates of officers
of the Seller 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 Seller 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
Seller shall remain responsible for the expenses to be paid or reimbursed by
the Seller pursuant to Section 6 of this Agreement and the respective
obligations of the Seller and the 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 Seller 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 Seller 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
the Underwriter at ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ABS Trading; if sent to the Seller, 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.
12. Computational Materials; Term Sheets. The Underwriter represents and
warrants to the Seller that (i) it has not and will not use any information
that constitutes "Computational Materials" as defined in the no-action
letter, dated May 20, 1994, issued by the Commission to ▇▇▇▇▇▇, Peabody
Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇
Structured Asset Corporation (as made generally applicable to other issuers
and underwriters by the Commission in the response to the request of the
Public Securities Association, dated May 24, 1994) (the "▇▇▇▇▇▇/PSA No-Action
Letter"), in connection with the offering of the Class B Notes and (ii) it
has not and will not use any information that constitutes "ABS Term Sheets,"
"Structural Term Sheets" or "Collateral Term Sheets," each as defined in the
no-action letter, dated February 13, 1995, addressed by the Commission to the
Public Securities Association (the "PSA No-Action Letter," and together with
the ▇▇▇▇▇▇/PSA NoAction Letter, the "No Action Letters"), in connection with
the offering of the Class B Notes.
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 Class B Notes from the Underwriter shall be deemed to be a
successor of the Underwriter merely because of such purchase.
14. 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.
15. Applicable Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement among the Seller, CFSC and the
Underwriter in accordance with the terms of this Class B Note Underwriting
Agreement.
Very truly yours,
CATERPILLAR FINANCIAL FUNDING CORPORATION
By:______________________
Name:
Title: Secretary
CATERPILLAR FINANCIAL SERVICES CORPORATION
By:______________________
Name:
Title: Secretary
The foregoing Class B Underwriting
Agreement is hereby confirmed and
accepted as of the date first written above.
▇. ▇. ▇▇▇▇▇▇ SECURITIES INC.
By:_____________________
Name: ▇▇▇▇ ▇▇▇
Title: Vice President