Exhibit 1.1
CATERPILLAR FINANCIAL ASSET TRUST 1998-A
CLASS A-1 5.6375% ASSET BACKED NOTES
CLASS A-2 5.75% ASSET BACKED NOTES
CLASS A-3 5.85% ASSET BACKED NOTES
CATERPILLAR FINANCIAL FUNDING CORPORATION
CLASS A NOTE UNDERWRITING AGREEMENT
July 27, 1998
Xxxxxxx, Xxxxx & Co.
As Representative of the
Several Underwriters
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1 Introductory. Caterpillar Financial Funding Corporation, a
Nevada corporation (the "Seller"), proposes to cause Caterpillar Financial Asset
Trust 1998-A (the "Trust") to issue and sell $164,000,000 aggregate principal
amount of Class A-1 5.6375% Asset Backed Notes (the "Class A-1 Notes"),
$218,000,000 aggregate principal amount of Class A-2 5.75% Asset Backed Notes
(the "Class A-2 Notes") and $183,114,000 aggregate principal amount of Class A-3
5.85% Asset Backed Notes (the "Class A-3 Notes", together with the Class A-1
Notes and the Class A-2 Notes, the "Class A Notes") to the several underwriters
named in Schedule I hereto (the "Underwriters"), for whom you are acting as
representative (the "Representative"). The assets of the Trust will include,
among other things, a pool of fixed rate retail installment sale contracts and
finance leases (the "Receivables") secured by new and used machinery
manufactured primarily by Caterpillar Inc. ("Caterpillar"), including rights to
receive certain payments with respect to such Receivables, and security
interests in the machinery financed by the Receivables (the "Financed
Equipment"), and the proceeds thereof. The
Receivables will be sold to the Trust by the Seller. The Receivables will be
serviced for the Trust by Caterpillar Financial Services Corporation, a Delaware
corporation (the "Servicer" or "CFSC"). The Notes will be issued pursuant to the
Indenture to be dated as of July 1, 1998 (as amended and supplemented from time
to time, the "Indenture"), between the Trust and The First National Bank of
Chicago, a national banking association (the "Indenture Trustee").
Simultaneously with the issuance and sale of the Class A Notes
as contemplated herein, the Trust will issue $24,176,000 aggregate principal
amount of 5.85% Class B Asset Backed Notes (the "Class B Notes", together with
the Class A Notes, the "Notes") and $16,388,534 aggregate principal amount of
Asset Backed Certificates, which may include fixed rate certificates, interest
only certificates and residual certificates (the "Certificates", together with
the Notes sometimes referred to collectively herein as the "Securities"), each
such certificate representing a fractional undivided interest in the Trust. The
Class B Notes will be sold pursuant to an underwriting agreement (the "Class B
Note Underwriting Agreement", together with this Agreement, the "Underwriting
Agreements") among the Seller, CFSC and the underwriters or underwriter 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 July 1, 1998 (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 July 1, 1998 (as amended and supplemented from time to time, the "Trust
Agreement"), between the Seller and Chase Manhattan Bank Delaware, a Delaware
banking corporation as owner trustee under the Trust Agreement (the "Owner
Trustee").
2 Representations and Warranties of the Seller and CFSC. Each
of the Seller and CFSC, with respect to itself only, and not with respect to the
other, represents and warrants to and agrees with each Underwriter that:
(a) The Seller meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the
"Commission") a registration statement (Registration No. 333-53721) on such Form
S-3, including a prospectus and a form of prospectus supplement, for
registration under the Act of the offering and sale of the Notes. The Seller may
have filed one or more amendments thereto, each of which amendments has
previously been furnished to the Representative. The Seller will also file with
the Commission a prospectus supplement in accordance with Rule 424(b) under the
Act. The Seller has included in the Registration Statement, as amended at the
Effective Date (as hereinafter defined), all information required by the Act and
the rules thereunder to be included in the Prospectus (as hereinafter defined)
with respect to the Notes and the offering thereof. As filed, the registration
statement as amended, the form of prospectus supplement, and any prospectuses or
prospectus supplements filed pursuant to Rule 424(b) under the Act relating to
the Notes shall, except to the extent that the Representative shall agree in
writing to a modification, be in all substantive respects in the form furnished
to the Representative prior to the Execution Time (as hereinafter defined) or,
to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
latest preliminary prospectus supplement which has previously been furnished to
the Representative) as the Seller has advised the Representative, prior to the
Execution Time, will be included or made therein.
For purposes of this Agreement, "Effective Time" means the
date and time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, and "Effective Date" means the date of the Effective Time.
"Execution Time" shall mean the date and time that this Agreement is executed
and delivered by the parties hereto. Such registration statement, as amended at
the Effective Time, and including the exhibits thereto and any material
incorporated by reference therein (including any Computational Materials, ABS
Term Sheets, Structural Term Sheets and Collateral Term Sheets (as defined in
Section 13 of this Agreement) filed on Form 8-K), is hereinafter referred to as
the "Registration Statement," and any prospectus supplement (the "Prospectus
Supplement") relating to the Notes, as filed with the Commission pursuant to and
in accordance with Rule 424(b) under the Act is, together with the prospectus
filed as part of the Registration Statement (such prospectus, in the form it
appears
in the Registration Statement or in the form most recently revised and filed
with the Commission pursuant to Rule 424(b) being hereinafter referred to as the
"Basic Prospectus"), hereinafter referred to as the "Prospectus". "Preliminary
Prospectus" means any preliminary prospectus to the Prospectus which describes
the Notes and the offering thereof and which is used prior to the filing of the
Prospectus. "Rule 424" refers to such rule under the Act. Any reference herein
to the Registration Statement, the Prospectus or any Prospectus Supplement shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on or before the
Effective Date of the Registration Statement or the issue date of the Prospectus
or any Prospectus Supplement, as the case may be; and any reference herein to
the terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Prospectus or any Prospectus Supplement shall be deemed to refer
to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement, or the issue date of the
Prospectus or any Prospectus Supplement, as the case may be, deemed to be
incorporated therein by reference.
(b) On the Effective Date and on the date of this Agreement,
the Registration Statement did or will, and, when the Prospectus was first filed
and on the Closing Date (as defined below), the Prospectus and any Prospectus
Supplement did or will comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the respective rules and regulations
of the Commission thereunder (the "Rules and Regulations") and of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). On the Effective
Date, the Registration Statement did not and will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Prospectus, together with any Prospectus
Supplement, did not or will not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light
of the circumstances under which they were made, not misleading; provided,
however, that the Seller makes no representation or warranty as to the
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with information furnished in
writing to the Seller by any Underwriter through the Representative specifically
for use in connection with preparation of the Registration Statement or the
Prospectus.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there has not been
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, management,
financial condition, stockholders' equity, results of operations, regulatory
status or business prospects of the Seller or CFSC, and (ii) neither the Seller
nor CFSC has entered into any transaction or agreement (whether or not in the
ordinary course of business) material to it that, in either case, would
reasonably be expected to materially adversely affect the interests of the
holders of the Notes, other than as set forth or contemplated in the Prospectus.
(d) The computer tape of the Receivables created as of July 1,
1998, and made available to the Representative by the Servicer, was complete and
accurate as of the date thereof and includes a description of the Receivables
that are described in Schedule A to the Sale and Servicing Agreement.
(e) Each of the Seller and CFSC is duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and is qualified to transact business in and is in
good standing under the laws of each state in which its activities require such
qualification, and has full power, authority and legal right to own its
properties and conduct its business as such properties are presently owned and
such business is presently conducted.
(f) This Agreement has been duly authorized, executed and
delivered by each of the Seller and CFSC.
(g) On the date of this Agreement and on the Closing Date, the
representations and warranties of CFSC and the Seller
in each of the Basic Documents to which they are a party will be true and
correct.
(h) CFSC's sale, transfer, assignment, set over and conveyance
of the Receivables to the Seller as of the Closing Date will vest in the Seller
all of CFSC's right, title and interest therein, subject to no prior lien,
mortgage, security interest, pledge, adverse claim, charge or other encumbrance.
(i) The Seller's sale, transfer, assignment, set over and
conveyance of the Receivables to the Trust as of the Closing Date will vest in
the Trust all of the Seller's right, title and interest therein, subject to no
prior lien, mortgage, security interest, pledge, adverse claim, charge or other
encumbrance.
(j) The Trust's grant of a security interest in the
Receivables to the Indenture Trustee pursuant to the Indenture will vest in the
Indenture Trustee, for the benefit of the Noteholders, a first priority
perfected security interest therein, subject to no prior lien, mortgage,
security interest, pledge, adverse claim, charge or other encumbrance.
3 Purchase, Sale, and Delivery of the Class A Notes. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Seller agrees to cause
the Trust to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Trust, (a) at a purchase price of
99.890000% 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 99.805241% of the principal amount thereof,
the respective principal amount of the Class A-2 Notes set forth opposite the
name of such Underwriter in Schedule I hereto and (c) at a purchase price of
99.711777% of the principal amount thereof, the respective principal amount of
the Class A-3 Notes set forth opposite the name of such Underwriter in Schedule
I hereto. Delivery of and payment for the Class A Notes shall be made at the
office of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 on July 31, 1998 (the "Closing Date"). Delivery of the Class A Notes
shall be made against payment of the purchase price in immediately available
funds drawn to the order of the Seller. The Class A Notes to be
so delivered will be initially represented by one or more Class A Notes
registered in the name of Cede & Co., the nominee of The Depository Trust
Company ("DTC"). The interests of beneficial owners of the Class A Notes will be
represented by book entries on the records of DTC and participating members
thereof. Definitive Class A Notes will be available only under limited
circumstances set forth in the Indenture.
4 Offering by Underwriters. It is understood that the
Underwriters propose to offer the Class A Notes for sale to the public (which
may include selected dealers) as set forth in the Prospectus.
5 Covenants of the Seller. The Seller covenants and agrees
with each of the Underwriters that:
(a) Immediately following the execution of this Agreement, the
Seller will prepare a Prospectus Supplement setting forth the amount of Notes
covered thereby and the terms thereof not otherwise specified in the Basic
Prospectus, the price at which such Notes are to be purchased by the
Underwriters, the initial public offering price, the selling concessions and
allowances, and such other information as the Seller deems appropriate and shall
furnish a copy to the Representative in accordance with Section 5(b) of this
Agreement. The Seller will transmit the Prospectus including such Prospectus
Supplement to the Commission pursuant to Rule 424(b) by a means reasonably
calculated to result in filing that complies with all applicable provisions of
Rule 424(b). The Seller will advise the Representative promptly of any such
filing pursuant to Rule 424(b).
(b) Prior to the termination of the offering of the Notes, the
Seller will not file any amendment of the Registration Statement or supplement
to the Prospectus unless the Seller has furnished the Representative with a copy
for its review prior to filing and will not file any such proposed amendment or
supplement to which the Representative reasonably objects. Subject to the
foregoing sentence, if filing of the Prospectus is otherwise required under Rule
424(b), the Seller will file the Prospectus, properly completed, and any
supplement thereto, with the Commission pursuant to and in accordance with the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representative of such timely filing.
(c) The Seller will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement as filed or the
Prospectus, and will not effect such amendment or supplement without the
Representative's consent, which consent will not unreasonably be withheld. The
Seller will also advise the Representative promptly of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for any additional information and the Seller will also advise
the Representative promptly of any amendment or supplement to the Registration
Statement or the Prospectus and of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threat of any proceeding for that purpose, and the Seller will
use its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible the lifting of any issued stop order.
(d) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Registration Statement or supplement the Prospectus to comply with the Act or
the Exchange Act or the respective Rules and Regulations thereunder, the Seller
promptly will notify the Representative and will prepare and file, or cause to
be prepared and filed, with the Commission, subject to the first sentence of
paragraph (b) of this Section 5, an amendment or supplement that will correct
such statement or omission, or effect such compliance. Any such filing shall not
operate as a waiver or limitation on any right of any Underwriter hereunder.
(e) As soon as practicable, but not later than fourteen months
after the original effective date of the Registration Statement, the Seller will
cause the Trust to make generally available to Noteholders an earnings statement
of the Trust covering a period of at least twelve months beginning after the
Effective Date of the Registration Statement that will
satisfy the provisions of Section 11(a) of the Act.
(f) The Seller will furnish to the Underwriters copies of the
Registration Statement (one of which will be signed and will include all
exhibits), each related preliminary prospectus or prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in each case as
soon as available and in such quantities as the Underwriters request.
(g) The Seller will assist the Representative in arranging for
the qualification of the Notes for sale and determination of their eligibility
for investment under the laws of such jurisdictions in the United States, or as
necessary to qualify for the Euroclear System or Cedel Bank, societe anonyme, as
the Representative designates and will continue to assist the Representative in
maintaining such qualifications in effect so long as required for the
distribution; provided, however, that neither the Seller nor CFSC shall be
required to qualify to do business in any jurisdiction where it is now not
qualified or to take any action which would subject it to general or unlimited
service of process in any jurisdiction in which it is now not subject to service
of process.
(h) For a period from the date of this Agreement until the
retirement of the Notes, or until such time as the Underwriters shall cease to
maintain a secondary market in the Notes, whichever occurs first, the Seller
will deliver to the Representative the annual statements of compliance and the
annual independent certified public accountants' reports furnished to the Owner
Trustee or the Indenture Trustee pursuant to the Sale and Servicing Agreement,
as soon as such statements and reports are furnished to the Owner Trustee or the
Indenture Trustee.
(i) So long as any of the Notes are outstanding, the Seller
will furnish to the Representative (i) as soon as practicable after the end of
the fiscal year all documents required to be distributed to Noteholders or filed
with the Commission pursuant to the Exchange Act or any order of the Commission
thereunder and (ii) from time to time, any other information concerning the
Seller filed with any government or regulatory authority which is otherwise
publicly available, as the Representative may reasonably request.
(j) On or before the Closing Date, the Seller shall cause the
computer records of the Seller and the Servicer relating to the Receivables to
be marked to show the Trust's absolute ownership of the Receivables, and from
and after the Closing Date neither the Seller nor the Servicer shall take any
action inconsistent with the Trust's ownership of such Receivables, other than
as permitted by the Sale and Servicing Agreement.
(k) To the extent, if any, that the rating provided with
respect to the Notes by the rating agency or agencies that initially rate the
Notes is conditional upon the furnishing of documents or the taking of any other
actions by the Seller, the Seller shall furnish such documents and take any such
other actions.
(l) For the period beginning on the date of this Agreement and
ending seven days after the Closing Date, unless waived by the Underwriters,
none of the Seller, CFSC or any trust originated, directly or indirectly, by the
Seller or CFSC will offer to sell or sell notes (other than the Notes)
collateralized by, or certificates (other than the Certificates) evidencing an
ownership interest in, receivables generated pursuant to fixed rate retail
installment sale contracts or finance leases and secured by equipment similar to
the Financed Equipment.
(m) The Seller and CFSC each will deliver to the
Representative, all opinions, certificates and other documents or information
delivered to the Owner Trustee and the Indenture Trustee at the time such
opinions, certificates and other documents or information are delivered to the
Owner Trustee or the Indenture Trustee pursuant to the Sale and Servicing
Agreement and the Purchase Agreement with respect to perfection and priority of
CFSC's interest in the Receivables.
6 Payment of Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the preparation, issuance and delivery of
the Notes to the Underwriters, (iii) the fees and disbursements of the Seller's
counsel and accountants, (iv) the qualification of the Notes under securities
laws in accordance with the provisions of
Section 5(g), including filing fees and the fees and disbursements of counsel in
connection therewith and in connection with the preparation of any blue sky or
legal investment survey, (v) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of the Preliminary Prospectus and of each amendment or supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of any
blue sky or legal investment survey prepared in connection with the Notes, (vii)
any fees charged by rating agencies for the rating of the Notes, (viii) the fees
and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. and (ix) the fees and expenses of
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP in its role as counsel to the Trust incurred
as a result of providing the opinions required by Section 7(f) hereof.
7 Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Class A Notes will
be subject to the accuracy of the representations and warranties on the part of
the Seller herein, to the accuracy of the statements of officers of the Seller
made pursuant to the provisions hereof, to the performance by the Seller of its
obligations hereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective
prior to the Execution Time, and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Seller or the Representative, shall be contemplated by the
Commission or by any authority administering any state securities or blue sky
law.
(b) The Prospectus and any supplements thereto shall have been
filed (if required) with the Commission in accordance with the Rules and
Regulations and Section 5(a) hereof.
(c) On or prior to the date of this Agreement and on or prior
to the Closing Date, the Representative shall have received a letter or letters,
dated as of the date of this Agreement and as of the Closing Date, respectively,
of Price
Waterhouse, independent public accountants, substantially in the form
of the drafts to which the Representative has previously agreed and otherwise in
form and substance satisfactory to the Representative and its counsel.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Trust, the Seller or the Servicer which, in the judgment of
the Underwriters, materially impairs the investment quality of the Notes or
makes it impractical or inadvisable to market the Notes; (ii) any suspension or
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange; (iii) any suspension
of trading of any securities of Caterpillar or CFSC on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by Federal,
Delaware or New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress, or any other substantial national or international calamity or
emergency if, in the judgment of the Underwriters, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the Notes.
(e) The Representative shall have received opinions of Xxxx X.
Xxxxx, General Counsel of CFSC, Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP and Tuke,
Xxxx & Xxxxxxx, counsel to CFSC, the Seller and the Trust and such other counsel
acceptable to the Underwriters addressed to the Representative, the Owner
Trustee and the Indenture Trustee, dated the Closing Date and satisfactory in
form and substance to the Representative and its counsel, substantially to the
effect that:
(i) CFSC has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware
with full corporate power and authority to own its properties and
conduct its business, as presently owned and conducted by it, and to
enter into and perform its obligations under the Underwriting
Agreements, the Administration Agreement, the Purchase Agreement, the
Sale and Servicing Agreement and the Custodial Agreement and
had at all times, and now has, the power, authority and legal right
to acquire, own and sell the Receivables.
(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 and the Custodial Agreement and had at all times,
and now has, the power, authority and legal right to acquire, own and
sell the Receivables.
(iii) CFSC is duly qualified to do business and is in good
standing, and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to qualify or to obtain such license or
approval would render any Receivable unenforceable by the Seller, the
Owner Trustee or the Indenture Trustee.
(iv) The Seller is duly qualified to do business and is in
good standing, and has obtained all necessary licenses and approvals in
each jurisdiction in which failure to qualify or to obtain such license
or approval would have a material adverse effect on the Receivables as
a whole.
(v) The direction by the Seller to the Owner Trustee to
authenticate the Certificates has been duly authorized by the Seller
and, when the Certificates have been duly executed, authenticated and
delivered by the Owner Trustee in accordance with the Trust Agreement
and delivered to and paid for by the Seller, will be legally issued,
fully paid and nonassessable obligations of the Trust.
(vi) The direction by CFSC to the Indenture Trustee to
authenticate the Notes has been duly authorized by CFSC, and, when the
Notes have been duly executed and delivered by the Owner Trustee,
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 and entitled to the benefits and security
afforded by the Indenture, except (x) the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
and (y) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be
brought.
(vii) Each of the Purchase Agreement, the Trust Agreement, the
Sale and Servicing Agreement 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, 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 or the Custodial Agreement by the Seller, nor the
execution of the Underwriting Agreements, the Administration Agreement, the
Purchase Agreement, the Sale and Servicing Agreement or the Custodial
Agreement by CFSC, nor the consummation of any transactions contemplated in
the Underwriting Agreements, the Purchase Agreement, the Trust Agreement, the
Indenture, the Administration Agreement, the Sale and Servicing Agreement or
the Custodial Agreement (such agreements, excluding the Underwriting
Agreements, being for purposes of this clause (e) and elsewhere herein, as
applicable, collectively, the "Basic Documents"), nor the fulfillment of the
terms thereof by CFSC, the Seller or the Trust, as the case may be, will (x)
conflict with, or result in a breach, violation or acceleration of, or
constitute a default under, any term or provision of the certificate of
incorporation or by-laws of CFSC or the Seller or, to the best of such
counsel's knowledge after due inquiry, of any indenture or other agreement or
instrument to which CFSC or the Seller is a party or by which either of them
is bound, or (y) result in a violation of or contravene the terms of any
statute, order or regulation applicable to CFSC or the Seller of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over either of them.
(xi) There are no actions, proceedings or investigations
pending or, to the best of such counsel's knowledge, threatened before
any court, administrative agency, or other tribunal (1) asserting the
invalidity of the Trust or any of the Basic Documents, (2) seeking to
prevent the consummation of any of the transactions contemplated by any
of the Basic Documents or the execution and delivery thereof, or (3)
that could reasonably be expected to materially and adversely affect
the performance (A) by CFSC of its obligations under, or the validity
or enforceability of, the Underwriting Agreements, the Administration
Agreement, the Purchase Agreement, the Sale and Servicing Agreement or
the Custodial Agreement, (B) by the Seller of its obligations under, or
the validity or enforceability of, the Underwriting Agreements, the
Purchase Agreement, the Trust Agreement, the Sale and Servicing
Agreement or the Custodial Agreement, or (C) by the Servicer of its
obligations under, or the validity or enforceability of, the Sale and
Servicing Agreement.
(xii) To the best knowledge of such counsel, no default exists
and no event has occurred which, with notice, lapse of time or both,
would constitute a default in the due performance and observance of any
term, covenant or condition of any agreement to which CFSC or the
Seller is a party or by which either of them is bound, which default is
or would have a material adverse effect on the financial condition,
earnings, business or properties of CFSC and its subsidiaries, taken as
a whole.
(xiii) The Assignment (as defined in the Purchase Agreement)
dated as of the Closing Date from CFSC to the Seller has been duly
authorized, executed and delivered by CFSC.
(xiv) Should CFSC become the debtor in a case under the
Bankruptcy Code, if the matter were properly briefed and presented to a
court, the court should hold that (1) the transfer of the Receivables
by CFSC to the Seller in the manner set forth in the Purchase Agreement
would constitute an absolute sale of the Receivables, rather than a
borrowing by CFSC secured by the Receivables, and thus (2) the Seller's
rights to the Receivables would not be impaired by the operation of
Section 362(a) of the Bankruptcy Code.
(xv) Should CFSC become the debtor in a case under the
Bankruptcy Code, and the Seller would not otherwise properly be a
debtor in a case under the Bankruptcy Code, and if the matter were
properly briefed and presented to a court exercising bankruptcy
jurisdiction, the court, exercising reasonable judgment after full
consideration of all relevant
factors, should not order, over the objection of the
Certificateholders or the Noteholders, the substantive consolidation
of the assets and liabilities of the Seller with those of CFSC based
on any legal theories currently subscribed to by federal courts
exercising bankruptcy jurisdiction.
(xvi) Such counsel is familiar with the Servicer's standard
operating procedures relating to the Servicer's acquisition of a
perfected first priority security interest in the equipment financed by
the Servicer pursuant to equipment installment sale contracts in the
ordinary course of the Servicer's business. Assuming that the
Servicer's standard procedures have been followed with respect to the
perfection of security interests in the Financed Equipment (and such
counsel has no reason to believe that such procedures have not been
followed), the Servicer has acquired or will acquire a perfected first
priority security interest in the Financed Equipment.
(xvii) The Purchase Agreement grants to the Seller a valid
security interest in CFSC's rights in the Receivables and the proceeds
thereof. The Sale and Servicing Agreement grants to the Trust a valid
security interest in the Seller's rights in the Receivables and the
proceeds thereof. The Indenture grants to the Indenture Trustee a valid
security interest in the Trust's rights in the Receivables and the
proceeds thereof.
(xviii) The Receivables are chattel paper as defined in the
UCC.
(xix) Immediately prior to the sale of the Receivables and the
proceeds thereof to the Seller, CFSC had a first priority perfected
security interest in the Receivables and the proceeds thereof.
Immediately prior to the transfer of the Receivables and the proceeds
thereof to the Trust, the Seller had a first priority perfected
security interest in the Receivables and the proceeds thereof.
Immediately prior to the transfer of the Receivables and the proceeds
thereof to the Indenture Trustee, the Trust had a first priority
perfected security interest in the Receivables and the proceeds
thereof. The Indenture Trustee has a first priority perfected security
interest in the Receivables and the proceeds thereof. The opinion
covered by this paragraph (xix) shall be subject to customary UCC
exceptions and qualifications.
(xx) The Sale and Servicing Agreement, the Trust Agreement,
the Indenture, the Administration Agreement and the Purchase Agreement
conform in all material respects with the description thereof contained
in the
Prospectus and any supplement thereto.
(xxi) The statements in the Prospectus under the headings
"Risk Factors -- Perfection of Interests in Receivables and in Financed
Equipment" and "Certain Legal Aspects of the Receivables" to the extent
they constitute matters of law or legal conclusions with respect
thereto, are correct in all material respects.
(xxii) The statements contained in the Prospectus and any
supplement thereto under the headings "Description of the Notes",
"Description of the Certificates" and "Description of the Transfer and
Servicing Agreements", insofar as such statements constitute a summary
of the Notes, the Certificates, the Indenture, the Administration
Agreement, the Sale and Servicing Agreement, the Purchase Agreement and
the Trust Agreement, are a fair and accurate summary of the matters
referred to therein.
(xxiii) No consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required for
the consummation of the transactions contemplated in the Basic
Documents, except for such filings with respect to the transfer of the
Receivables to the Seller pursuant to the Purchase Agreement and the
transfer of the Receivables to the Trust pursuant to the Sale and
Servicing Agreement and as may be required under state securities or
Blue Sky laws of various jurisdictions.
(xxiv) All actions required to be taken and all filings
required to be made under the Act prior to the sale of the Notes have
been duly taken or made.
(xxv) The Trust Agreement is not required to be qualified
under the Trust Indenture Act and the Trust is not required to be
registered under the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xxvi) The Indenture has been duly qualified under the Trust
Indenture Act.
(xxvii) The Seller is not, and will not as a result of the
offer and sale of the Notes as contemplated in the Prospectus and the
Underwriting Agreements become, an "investment company" as defined in
the Investment Company Act or a company "controlled by" an "investment
company" within the meaning of the Investment Company Act.
(xxviii) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statement, other than
those disclosed therein.
(xxix) The Registration Statement has become effective under
the Act, any required filing of any Preliminary Prospectus and the
Prospectus and any supplements thereto pursuant to Rule 424(b) has been
or will be made in the manner and within the time period required by
Rule 424(b), and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the Registration Statement
and the Prospectus, and each amendment or supplement thereto, as of
their respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act, the Exchange Act,
the Trust Indenture Act and the Rules and Regulations.
(xxx) Nothing has come to such counsel's attention that would
lead such counsel to believe that the Registration Statement or the
Prospectus or any amendment or supplement thereto as of the respective
dates thereof (other than the financial statements and other financial
and statistical information contained therein, as to which such counsel
need not express any view) contains an untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements therein not misleading.
(xxxi) The Trust has been duly formed and is validly existing
as a statutory business trust and is in good standing under the laws of
the State of Delaware, with full power and authority to execute,
deliver and perform its obligations under the Sale and Servicing
Agreement, the Indenture, the Administration Agreement, the Notes and
the Certificates.
(xxxii) The Indenture, the Sale and Servicing Agreement, the
Custodial Agreement and the Administration Agreement have been duly
authorized and, when duly executed and delivered by the Owner Trustee
on behalf of the Trust, will constitute the legal, valid and binding
obligations of the Trust, enforceable against the Trust in accordance
with their terms, except (x) the enforceability thereof may be subject
to bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights and (y)
the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the
court before which any proceeding therefor may be brought.
(xxxiii) The Servicer has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware with full corporate power and authority to own
its properties and conduct its business, as presently conducted by it,
and to enter into and perform its obligations under the Sale and
Servicing Agreement, and had at all relevant times, and now has, the
power, authority and legal right to acquire, own, sell and service the
Receivables.
(xxxiv) The Servicer is duly qualified to do business and is
in good standing, and has obtained all necessary licenses and approvals
in each jurisdiction in which failure to qualify or to obtain such
license or approval would render any Receivable unenforceable by the
Seller, the Owner Trustee or the Indenture Trustee.
(xxxv) The Sale and Servicing Agreement has been duly
authorized, executed and delivered by the Servicer, and is the legal,
valid and binding obligation of the Servicer enforceable against the
Servicer in accordance with its terms, except (x) the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and (y) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(xxxvi) Neither the execution and delivery of the Sale and
Servicing Agreement by the Servicer, nor the consummation of any
transactions contemplated in the Underwriting Agreements or the Basic
Documents, nor the fulfillment of the terms thereof by the Servicer
will conflict with, or result in a breach, violation or acceleration
of, or constitute a default under, any term or provision of the
certificate of incorporation or by-laws of the Servicer or of any
indenture or other agreement or instrument to which the Servicer is a
party or by which it is bound, or result in a violation of or
contravene the terms of any statute, order or regulation applicable to
the Servicer of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it.
(xxxvii) To the best knowledge of such counsel, no default
exists and no event has occurred which, with notice, lapse of time or
both, would constitute a default in the due performance and observance
of any term, covenant or condition of any agreement to which the
Servicer is a party or
by which it is bound, which default is or would have a material
adverse effect on the financial condition, earnings, business or
properties of the Servicer and its subsidiaries, taken as a whole.
Such counsel shall also opine as to such other matters as the
Underwriters may reasonably request. The opinions set forth in clauses (xiv),
(xv) and (xix) of this Section 7(e) shall be given by Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP or such other outside counsel to CFSC, the Seller and the Trust as
may be acceptable to the Underwriters.
(f) The Representative shall have received an opinion
addressed to it of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP in its capacity as Special
Tax Counsel for the Trust, substantially to the effect that the statements in
the Prospectus under the headings "Summary of Terms--Tax Status" (to the extent
relating to Federal income tax consequences) and "Certain Federal Income Tax
Considerations" accurately describe the material Federal income tax consequences
to holders of the Securities, 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 Securities under XXXXX. Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, in
its capacity as Special Counsel to the Trust, shall have delivered an opinion
with respect to the characterization of the transfer of the Receivables.
(g) The Representative shall have received an opinion
addressed to it of Tuke, Xxxx & Xxxxxxx in its capacity as Special Tennessee Tax
Counsel for the Trust, substantially to the effect that the statements in the
Prospectus under the heading "Summary of Terms--Tax Status" (to the extent
relating to Tennessee income tax consequences) and in the Prospectus under the
heading "Certain State Income Tax Considerations" accurately describe the
material income tax consequences in the State of Tennessee to holders of the
Notes.
(h) The Representative shall have received an opinion
addressed to it of Xxxxxx Xxxxxx & Xxxxxxx in its capacity as Special Nevada Tax
Counsel for the Trust, substantially to the effect that the Trust would not be
subject to taxation in Nevada.
(i) The Representative shall have received an opinion
addressed to it of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP in its capacity as
Special Counsel to the Underwriters, dated the Closing Date, with respect to the
validity of the Securities and such other related matters as the Representative
shall require and the Seller shall have furnished or caused to be furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(j) The Representative shall have received an opinion
addressed to it, the Seller and the Servicer of The Law Department of the
Indenture Trustee, and such other counsel acceptable to the Representative and
its counsel, dated the Closing Date and satisfactory in form and substance to
the Representative and its counsel, substantially to the effect that:
(i) The Indenture Trustee is a national banking association
duly organized and validly existing under the Federal law of the United
States of America.
(ii) The Indenture Trustee has the full corporate trust power
to accept the office of trustee under the Indenture and to enter into
and perform its obligations under the Indenture, the Sale and Servicing
Agreement, the Custodial Agreement and the Administration Agreement.
(iii) The execution and delivery of the Indenture, the
Custodial Agreement and the Administration Agreement and the
acknowledgment and acceptance of the Sale and Servicing Agreement and
the performance by the Indenture Trustee of its obligations under the
Indenture, the Custodial Agreement, the Sale and Servicing Agreement
and the Administration Agreement have been duly authorized by all
necessary corporate action of the Indenture Trustee and each has been
duly executed and delivered by the Indenture Trustee.
(iv) The Indenture, the Sale and Servicing Agreement, the
Custodial Agreement and the Administration Agreement constitute valid
and binding obligations of the Indenture Trustee enforceable against
the Indenture Trustee in accordance with their terms under the laws of
the State of New York and the Federal law of the United States of
America.
(v) The execution and delivery by the Indenture Trustee of the
Indenture, the Custodial Agreement and the Administration Agreement and
the acknowledgment and acceptance of the Sale and Servicing Agreement
do not require any consent, approval or authorization of, or any
registration or filing with, any New York or United States Federal
governmental authority, other than the filing of Form T-1 under the
Trust Indenture Act.
(vi) Each of the Notes has been duly authenticated by the
Indenture Trustee.
(vii) Neither the consummation by the Indenture Trustee of the
transactions contemplated in the Sale and Servicing Agreement, the
Indenture, the Custodial Agreement or the Administration Agreement, nor
the fulfillment of the terms thereof by the Indenture Trustee, will
conflict with, result in a breach or violation of, or constitute a
default under any law or the charter, by-laws or other organizational
documents of the Indenture Trustee or the terms of any indenture or
other agreement or instrument known to such counsel and to which the
Indenture Trustee is a party or is bound or any judgment, order or
decree known to such counsel to be applicable to the Indenture Trustee
of any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Indenture Trustee.
(viii) To the best of such counsel's knowledge and belief,
there is no action, suit or proceeding pending or threatened against
the Indenture Trustee (as trustee under the Indenture or in its
individual capacity) before or by any governmental authority that if
adversely decided, would materially adversely affect the ability of the
Indenture Trustee to perform its obligations under the Indenture, the
Custodial Agreement, the Sale and Servicing Agreement or the
Administration Agreement.
(ix) The execution, delivery and performance by the Indenture
Trustee of the Sale and Servicing Agreement, the Indenture, the
Custodial Agreement and the Administration Agreement will not subject
any of the property or assets of the Trust or any portion thereof, to
any liens that are unrelated to the transactions contemplated in such
agreements.
(k The Representative shall have received an opinion addressed
to it, the Seller and the Servicer of Pryor, Xxxxxxx, Xxxxxxx & Xxxxx, counsel
to the Owner Trustee, and such other counsel acceptable to the Representative
and its counsel, dated the Closing Date and satisfactory in form and substance
to the Representative and its counsel, when taken together, substantially to the
effect that:
(i) The Owner Trustee has been duly incorporated and is
validly existing as a banking corporation in good standing under the
laws of the State of Delaware.
(ii) The Owner Trustee has full corporate trust power and
authority to enter into and perform its obligations under the Trust
Agreement and, on behalf of the Trust, under the Indenture, the
Custodial Agreement, the Sale and Servicing Agreement and the
Administration Agreement.
(iii) The execution and delivery of the Trust Agreement and,
on behalf of the Trust, of the Indenture, the Custodial Agreement, the
Sale and Servicing Agreement, the Administration Agreement, the
Certificates and the Notes and the performance by the Owner Trustee of
its obligations under the Trust Agreement, the Indenture, the Custodial
Agreement, the Sale and Servicing Agreement and the Administration
Agreement have been duly authorized by all necessary corporate action
of the Owner Trustee and each has been duly executed and delivered by
the Owner Trustee.
(iv) The Trust Agreement, the Sale and Servicing Agreement,
the Indenture, the Custodial Agreement and the Administration Agreement
constitute valid and binding obligations of the Owner Trustee
enforceable against the Owner Trustee in accordance with their terms
under the laws of the State of New York and the State of Delaware and
the Federal law of the United States of America.
(v) The execution and delivery by the Owner Trustee of the
Trust Agreement and, on behalf of the Trust, of the Indenture, the Sale
and Servicing Agreement, the Custodial Agreement and the Administration
Agreement do not require any consent, approval or authorization of, or
any registration or filing with, any Delaware or United States Federal
governmental authority having jurisdiction over the trust power of the
Owner Trustee, other than those consents, approvals or authorizations
as have been obtained and the filing of the Certificate of Trust with
the Secretary of State of the State of Delaware.
(vi) The Owner Trustee has duly executed, authenticated and
delivered the Certificates, and has duly executed and delivered the
Notes, issued on the Closing Date on behalf of the Trust.
(vii) The execution and delivery by the Owner Trustee of the
Trust Agreement and, on behalf of the Trust, the Sale and Servicing
Agreement, the Indenture, the Custodial Agreement and the
Administration Agreement and the performance by the Owner Trustee of
its obligations thereunder, do not conflict with, result in a breach or
violation of or constitute a default under, the articles of association
or bylaws of the Owner Trustee.
(l The Representative shall have received certificates dated
the Closing Date of any two of the Chairman of the Board, the President, the
Executive Vice President, any Vice President, the Treasurer, any Assistant
Treasurer, the principal financial officer or the principal accounting officer
of each of the Seller and CFSC, in its individual capacity and as Servicer, in
which such officers shall state that, to the best of their knowledge after
reasonable investigation, (i) the representations and warranties of the Seller,
CFSC and/or the Servicer, as the case may be, contained in the Trust Agreement,
Purchase Agreement and the Sale and Servicing Agreement, as applicable, are true
and correct, that the Seller, CFSC and/or the Servicer, as the case may be, has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under such agreements at or prior to the Closing Date,
that no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission and (ii) no material adverse change in or
affecting particularly the business or properties of the Trust, the Seller, CFSC
and/or the Servicer, as the case may be, has occurred.
(m The Representative shall have received evidence
satisfactory to it that, on or before the Closing Date, the Custodian, on behalf
of the Seller, the Trust and the Indenture Trustee has taken possession of the
applicable Receivables reflecting the transfer of the interest of CFSC in such
Receivables and the proceeds thereof to the Seller, and the transfer of the
interest of the Seller in such Receivables and the proceeds thereof to the Trust
and the grant of the security interest by the Trust in such Receivables and the
proceeds thereof to the Indenture Trustee.
(n The Class A-1 Notes shall have been rated "A-1+" by
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. and "P-1" by Xxxxx'x Investors Service, Inc., the Class A-2 Notes shall
have been rated "AAA" by Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and "Aaa" by Xxxxx'x Investors Service, Inc. and the
Class A-3 Notes shall have been rated "AAA" by Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc. and "Aaa" by Xxxxx'x
Investors Service, Inc.
(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, $24,176,000 aggregate principal amount
of Class B Notes shall have been issued and sold and $16,388,534 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
Representative such conformed copies of such opinions, certificates, letters and
documents as
it reasonably requests.
8. Indemnification and Contribution. (a) The Seller and CFSC
will jointly and severally, indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act against any losses, claims, damages, expenses or liabilities,
joint or several, to which such Underwriter or person may become subject, under
the Act or otherwise, insofar as such losses, claims, damages, expenses or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, expense liability or action; provided, however, that
the Seller and CFSC will not be liable in any such case to the extent that any
such loss, claim, damage, expense or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Seller by any Underwriter through the
Representatives specifically for use therein; and provided further, that the
Seller and CFSC shall not be liable to any Underwriter or any person controlling
any Underwriter under the indemnity agreement in this subsection (a) with
respect to any of such documents to the extent that any such loss, claim,
damage, expense or liability of the Underwriters or such controlling person
results from the fact that such Underwriter sold Notes to a person to whom there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference), whichever is most recent, if
the Seller has previously furnished copies thereof to such Underwriter.
The indemnity agreement in this subsection (a) shall be in
addition to any liability which the Seller or CFSC may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act.
(b Each Underwriter will indemnify and hold harmless
the Seller and CFSC against any losses, claims, damages, expenses or liabilities
to which the Seller and CFSC may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Seller or CFSC by such
Underwriter through the Representatives specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Seller or CFSC
in connection with investigating or defending any such action or claim.
The indemnity agreement in this subsection (b) shall be in
addition to any liability which each Underwriter may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
the Seller or CFSC within the meaning of the Act.
(c Promptly after receipt by an indemnified party
under subsection (a) or (b) of written notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against
the indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof, and in the event that such
indemnified party shall not so notify the indemnifying party within 30 days
following receipt of any such notice by such indemnified party, the indemnifying
party shall have no further liability under such subsection to such indemnified
party unless the indemnifying party shall have received other notice addressed
and delivered in the manner provided in Section 12 hereof of the commencement of
such action; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party in its reasonable judgment, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under such subsection for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation.
(d If the indemnification provided for in this
Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages, expenses
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, expenses or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Seller and CFSC on the one hand
and the Underwriters on the other from the offering of the Notes. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Seller and CFSC on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages,
expenses or liabilities (or actions in respect thereof) as well as any other
relevant equitable considerations. The relative benefits received by the Seller
and CFSC on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Seller and CFSC bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus, as amended
or supplemented, with respect to the Notes. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Seller and CFSC on the
one hand or by the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission, including, with respect to any Underwriter, the
extent to which such losses, claims, damages, expenses or liabilities (or
actions in respect thereof) result from the fact that such Underwriter sold such
Notes to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or the Prospectus as
then supplemented or amended (excluding documents incorporated by reference),
whichever is more recent, if the Seller has previously furnished copies thereof
to such Underwriter. The Seller and CFSC and the Underwriters, severally and not
jointly, agree that it would not be just and equitable if contribution pursuant
to this subsection (d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid by an indemnified
party as a result of the losses, claims, damages, or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection
with investigating or defending any action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
9. Defaults of Underwriters. If any Underwriter or
Underwriters default on their obligations to purchase the Class A Notes
hereunder on the Closing Date and the aggregate principal amount of the Class A
Notes that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total principal amount of the Class A Notes,
the Representative may make arrangements satisfactory to the Representative and
the Seller for the purchase of such Class A Notes by other persons, including
any of the Underwriters, but if no such arrangements are made by the Closing
Date, the nondefaulting Underwriters shall be obligated severally, in proportion
to their respective commitments hereunder, to purchase the Class A Notes that
such defaulting Underwriter or Underwriters agreed but failed to purchase. If an
Underwriter or Underwriters so default and the aggregate principal amount of the
Class A Notes with respect to such default or defaults exceeds 10% of the total
principal amount of the Class A Notes and arrangements satisfactory to the
Representative and the Seller for the purchase of such Class A Notes by other
persons are not made within 24 hours after such default, this Agreement will
terminate without liability on the part of any nondefaulting Underwriter or the
Seller, except as provided in Section 11. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
10. No Bankruptcy Petition. Each Underwriter and CFSC
covenants and agrees that, prior to the date which is one year and one day after
the payment in full of all securities issued by the Seller or by a trust for
which the Seller was the depositor which securities were rated by any nationally
recognized statistical rating organization, it will not institute against, or
join any other person in instituting against, the Seller any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any Federal or state bankruptcy or similar law.
11. Survival of Representations and Obligations. The
respective
indemnities, agreements, representations, warranties and other statements of the
Seller or CFSC or any of their officers and each of the Underwriters set forth
in or made pursuant to this Agreement or contained in certificates of officers
of the Seller submitted pursuant hereto shall remain operative and in full force
and effect, regardless of (i) any termination of this Agreement, (ii) any
investigation or statement as to the results thereof made by or on behalf of any
Underwriter or of the Seller or any of their respective representatives,
officers or directors or any controlling person, and (iii) delivery of and
payment for the Class A Notes. If for any reason the purchase of the Class A
Notes by the Underwriters is not consummated, the Seller shall remain
responsible for the expenses to be paid or reimbursed by the Seller pursuant to
Section 6 and the respective obligations of the Seller and the Underwriters
pursuant to Section 8 shall remain in effect. If for any reason the purchase of
the Class A Notes by the Underwriters is not consummated (other than because of
a failure to satisfy the conditions set forth in items (ii), (iv) or (v) of
Section 7(d)), the Seller will reimburse any Underwriter, upon demand, for all
reasonable out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by it in connection with the offering of the Class A Notes.
Nothing contained in this Section 11 shall limit the recourse of the Seller
against the Underwriters.
12. Notices. All communications hereunder will be in writing
and if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representative at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxx Xxxxxxxxx; if sent to the Seller, will be mailed, delivered or
telegraphed, and confirmed to it at Caterpillar Financial Funding Corporation,
Greenview Plaza, 0000 Xxxx Xxxxxxxx Xxxx, Xxxxx X-0X, Xxx Xxxxx, Xxxxxx 00000,
Attention: Secretary; if sent to CFSC, will be mailed, delivered or telegraphed,
and confirmed to it at Caterpillar Financial Services Corporation, 0000 Xxxx Xxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8 will be mailed,
delivered or telegraphed and confirmed to such Underwriter. Any such notice will
take effect at the time of receipt.
13. Computational Materials; Term Sheets. Each Underwriter
represents and warrants to the Seller that (a) it has not and will not use any
information that constitutes "Computational Materials" as defined in the
no-action letter, dated May 20, 1994, issued by the Commission to Xxxxxx,
Xxxxxxx Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx
Structured Asset Corporation (as made generally applicable to other issuers and
underwriters by the Commission in the response to the request of the Public
Securities Association, dated May 24, 1994), in connection with the offering of
the Class A Notes and (b) 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, in connection
with the offering of the Class A Notes, in each case without the prior written
consent of the Seller and CFSC to such usage.
14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8, and no
other person will have any right or obligations hereunder. No purchaser of Class
A Notes from any Underwriter shall be deemed to be a successor of such
Underwriter merely because of such purchase.
15. Representation. The Representative will act for the
several Underwriters in connection with the transactions contemplated by this
Agreement, and any action under this Agreement taken by the Representative will
be binding upon all of the Underwriters.
16. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
17. Applicable Law. This Agreement will be governed
by, and construed in accordance with, the laws of the State of New York.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement among the Seller, CFSC and the
several Underwriters in accordance with its terms.
Very truly yours,
CATERPILLAR FINANCIAL
FUNDING CORPORATION
By: /S/ Xxxx X. Xxxxx
-----------------------------
Name: Xxxx X. Xxxxx
Title: Secretary
CATERPILLAR FINANCIAL
SERVICES CORPORATION
By: /S/ Xxxx X. Xxxxx
-----------------------------
Name: Xxxx X. Xxxxx
Title: Secretary
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the
date first written above.
XXXXXXX, XXXXX & CO.,
on behalf of itself and as
Representative of the Several
Underwriters
By: /s/ Xxxxxxx, Xxxxx & Co.
-----------------------------
(Xxxxxxx, Xxxxx & Co.)
SCHEDULE I
Principal Principal Principal
Amount of Amount of Amount of
Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes
----------- --------------- --------------- ---------------
Xxxxxxx, Xxxxx & Co. . . $54,668,000 $72,668,000 $61,038,000
Chase Securities Inc. . . $54,666,000 $72,666,000 $61,038,000
Xxxxxxx Xxxxx, Xxxxxx,
Xxxxxx & Xxxxx
Incorporated . . . . . . $54,666,000 $72,666,000 $61,038,000
----------- ---------- ----------
Total $164,000,000 $218,000,000 $183,114,000
----------- ---------- ----------
----------- ---------- ----------
