Underwriting
Agreement
Caterpillar Financial Asset Trust 2008-A
Class A-1 3.005% Asset Backed Notes
Class A-2a 4.09% Asset Backed Notes
Class A-2b Floating Rate Asset Backed Notes
Class A-3 4.94% Asset Backed Notes
April 22, 2008
Barclays Capital Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
as Representatives of the several Underwriters
named in Schedule I hereto
c/o Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Ladies and Gentlemen:
1.
Introductory .
Caterpillar Financial Funding Corporation, a Nevada corporation
(the " Depositor "),
proposes to cause Caterpillar Financial Asset Trust 2008-A (the "
Issuing
Entity ") to issue $182,000,000 aggregate principal amount
of Class A-1 3.005% Asset Backed Notes (the " Class A-1
Notes "), $105,000,000 aggregate principal amount of Class
A-2a 4.09% Asset Backed Notes (the " Class A-2a
Notes "), $122,000,000 aggregate principal amount of Class
A-2b Floating Rate Asset Backed Notes (the “ Class A-2b
Notes ”) and $199,671,000 aggregate principal amount
of Class A-3 4.94% Asset Backed Notes (the " Class A-3
Notes, " and together with the Class A-1 Notes, the Class
A-2a Notes and the Class A-2b Notes, the " Notes ") and
to sell the Notes to the several underwriters named in Schedule I
hereto (the " Underwriters
"), for whom you are acting as representatives (the " Representatives
"). The assets of the Issuing Entity will include, among other
things, a pool of fixed-rate retail installment sale contracts and
finance leases (the " Receivables ")
secured by new and used machinery manufactured primarily by
Caterpillar Inc. (" Caterpillar
"), including rights to receive certain payments with respect to
such Receivables, and security interests in the machinery financed
by the Receivables (the " Financed
Equipment "), and the proceeds thereof. The Receivables will
be transferred to the Issuing Entity by the Depositor. The
Receivables will be serviced for the Issuing Entity by Caterpillar
Financial Services Corporation, a Delaware corporation (the "
Servicer " or
" CFSC "). The
Notes will be issued pursuant to the Indenture to be dated as of
April 1, 2008 (as amended and supplemented from time to time, the "
Indenture "),
between the Issuing Entity and U.S. Bank National Association, a
national banking association (the " Indenture
Trustee ").
Simultaneously with the issuance and sale of the Notes as
contemplated herein, the Issuing Entity will issue $33,387,349
aggregate principal amount of Asset Backed Certificates (the "
Certificates
"), each such Certificate representing a fractional undivided
interest in the Issuing Entity.
Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Sale and Servicing Agreement
to be dated as of April 1, 2008 (as amended and supplemented from
time to time, the " Sale and Servicing
Agreement "), among the Issuing Entity, the Depositor and
the Servicer or, if not defined therein, in the Indenture or the
Trust Agreement to be dated as of April 29, 2008 (as amended and
supplemented from time to time, the " Trust
Agreement "), between the Depositor and BNYM (Delaware), a
Delaware banking corporation, and an affiliate of The Bank of New
York, a New York banking corporation, as owner trustee under the
Trust Agreement (the " Owner Trustee
").
2.
Representations and
Warranties of the Depositor and CFSC . Each of the Depositor
and CFSC, with respect to itself only (except that any
representation or warranty relating to the Issuing Entity is made
by the Depositor on its behalf), and not with respect to the other,
represents and warrants to and agrees with each Underwriter
that:
(a)
The Depositor meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the " Act "), and
has filed with the Securities and Exchange Commission (the "
Commission ")
a registration statement (Registration No. 333-145491) on such Form
S-3, including a prospectus and a form of prospectus supplement,
for registration under the Act of the offering and sale of the
Notes. Such registration statement has been declared effective by
the Commission. Such registration statement, as amended
as of the time it became effective (including without limitation
each deemed effective date and time in accordance with Rule 430B(f)
under the Act (the “ Effective Time
”)), including all material incorporated by reference therein
and all information deemed to be part thereof pursuant to Rule 430B
under the Act is hereinafter referred to as the “
Registration
Statement .” The Depositor has filed with
the Commission pursuant to Rule 424(b) under the Act a preliminary
prospectus supplement dated April 22, 2008 relating to the sale of
the Notes (including the static pool information required to be
disclosed pursuant to Item 1105 of Regulation AB under the Act,
without regard to whether such information is deemed to be a part
of the prospectus under Item 1105(d) of Regulation AB under the
Act, the “ Preliminary
Prospectus Supplement ”) accompanied by the base
prospectus dated April 22, 2008 (the “ Basic
Prospectus ”; together with the Preliminary Prospectus
Supplement, the “ Preliminary
Prospectus ”). The Depositor proposes to
file with the Commission pursuant to Rule 424(b) under the Act a
final prospectus supplement relating to the sale of the Notes
(including the static pool information required to be disclosed
pursuant to Item 1105 of Regulation AB under the Act, without
regard to whether such information is deemed to be a part of the
prospectus under Item 1105(d) of Regulation AB under the Act, the
“ Prospectus
Supplement ”) to the Basic Prospectus (together with
the Prospectus Supplement, the “ Prospectus
”).
For purposes of this Agreement, " Effective Date
" means the date of the Effective Time. " Execution Time
" shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. The term " Contract of
Sale " shall have the meaning given such term in Rule 159 of
the Act and all Commission guidance relating to Rule 159 of the
Act. " Rule 424 "
refers to such rule under the Act. Any reference herein
to the Registration Statement, the Prospectus, the Preliminary
Prospectus or any Prospectus Supplement shall be deemed to refer to
and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the " Exchange Act
"), on or before the Effective Date of the Registration Statement
or the issue date of the Prospectus, the Preliminary Prospectus or
any Prospectus Supplement, as the case may be; and any reference
herein to the terms " amend ," "
amendment " or
" supplement "
with respect to the Registration Statement, the Prospectus, the
Preliminary Prospectus or any Prospectus Supplement shall be deemed
to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration
Statement, or the issue date of the Prospectus, the Preliminary
Prospectus Supplement or any Prospectus Supplement, as the case may
be, and on or prior to the Closing Date (as defined below) deemed
to be incorporated therein by reference. The Depositor
has included in the Registration Statement, as amended at the
Effective Time, all information required by the Act and the rules
thereunder to be included in the Prospectus with respect to the
Notes and the offering thereof.
(b)
The Registration Statement, at the Effective Time, and the
Preliminary Prospectus, when filed with the Commission, complied in
all material respects with the applicable requirements of the Act,
the Exchange Act and the Trust Indenture Act of 1939, as amended
(the " Trust Indenture
Act "), and the respective rules and regulations of the
Commission thereunder (the " Rules and
Regulations ") and of the Employee Retirement Income
Security Act of 1974, as amended (" ERISA
"). The Prospectus when first filed with the
Commission will comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture
Act, the Rules and Regulations and the rules and regulations of
ERISA. The Registration Statement, at the
Effective Time, did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; the Preliminary Prospectus, together with the
“free writing prospectus” in the form attached as Annex
A (the “Bond Size Free Writing Prospectus”), at 4:00
p.m., New York time, on April 22, 2008, which is the time when
Contracts of Sale with respect to the Notes were first made (the
“ Time of Sale
”), did not include any untrue statement of a material fact
or omit (except pricing information to be included in the
Prospectus Supplement) to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Prospectus as
of its date, as of the date of any amendment or supplement thereto
and as of the Closing Date will not include any untrue statement of
a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that
the Depositor makes no representation or warranty as to the
information contained in or omitted from the Registration
Statement, the Preliminary Prospectus or the Prospectus in reliance
upon and in conformity with information furnished in writing to the
Depositor by any Underwriter through the Representatives
specifically for use in connection with preparation of the
Registration Statement, the Preliminary Prospectus or the
Prospectus.
(c)
Since the respective dates as of which information is given in the
Registration Statement, the Preliminary Prospectus and the
Prospectus, (i) there has not been any material adverse change, or
any development involving a prospective material adverse change, in
or affecting the general affairs, business, management, financial
condition, stockholders' equity, results of operations, regulatory
status or business prospects of the Depositor or CFSC, and (ii)
neither the Depositor nor CFSC has entered into any transaction or
agreement (whether or not in the ordinary course of business)
material to it that, in either case, would reasonably be expected
to materially adversely affect the interests of the holders of the
Notes, other than as set forth or contemplated in the Preliminary
Prospectus and the Prospectus.
(d)
The computer tape of the Receivables created as of April 1, 2008,
and made available to the Representatives by the Servicer, was
complete and accurate as of the date thereof and includes a
description of the Receivables that are described in Schedule A to
the Sale and Servicing Agreement.
(e)
Each of the Depositor and CFSC is duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and is qualified to transact business
in and is in good standing under the laws of each state in which
its activities require such qualification, and has full power,
authority and legal right to own its properties and conduct its
business as such properties are presently owned and such business
is presently conducted.
(f)
This Agreement has been duly authorized, executed and delivered by
each of the Depositor and CFSC.
(g)
On the date of this Agreement and on the Closing Date, the
representations and warranties of CFSC and the Depositor in each of
the Basic Documents to which they are a party will be true and
correct, except for representations and warranties which relate to
a specific time, which shall be true and correct as of such
time.
(h)
CFSC's sale, transfer, assignment, set over and conveyance of the
Receivables to the Depositor as of the Closing Date will vest in
the Depositor all of CFSC's right, title and interest therein,
subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance.
(i)
The Depositor's sale, transfer, assignment, set over and conveyance
of the Receivables to the Issuing Entity as of the Closing Date
will vest in the Issuing Entity all of the Depositor's right, title
and interest therein or a first priority perfected security
interest therein, subject to no prior lien, mortgage, security
interest, pledge, adverse claim, charge or other
encumbrance.
(j)
The Issuing Entity's grant of a security interest in the
Receivables to the Indenture Trustee pursuant to the Indenture will
vest in the Indenture Trustee, for the benefit of the Noteholders,
a first priority perfected security interest therein, subject to no
prior lien, mortgage, security interest, pledge, adverse claim,
charge or other encumbrance.
(k)
When the Notes have been duly executed and delivered by the Owner
Trustee on behalf of the Issuing Entity, authenticated by the
Indenture Trustee in accordance with the Indenture and delivered
and paid for pursuant to this Agreement, the Notes will be duly
issued, will constitute legal, valid and binding obligations of the
Issuing Entity enforceable against the Issuing Entity in accordance
with their terms and will be entitled to the benefits and security
afforded by the Indenture, except (x) the enforceability thereof
may be subject to bankruptcy, insolvency, reorganization,
conservatorship, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights and (y) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be
brought.
(l)
Each of CFSC and the Depositor has the power and authority to
execute and deliver this Agreement and to carry out the terms of
this Agreement.
(m)
The execution, delivery and performance of this Agreement and the
consummation by each of CFSC and the Depositor of the transactions
contemplated hereby shall not conflict with, result in any breach
of any of the terms and provisions of or constitute (with or
without notice or lapse of time) a default under, the certificate
of incorporation or by-laws of such party, or any indenture,
agreement or other instrument to which such party is a party or by
which it is bound, or violate any law, order, rule or regulation
applicable to such party of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over such party or any of its
properties; and, except for the registration of the Notes under the
Act, the qualification of the Indenture under the Trust Indenture
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase
and distribution of the Notes by the Underwriters, no permit,
consent, approval of, or declaration to or filing with, any
governmental authority is required to be obtained by such party in
connection with its execution, delivery and performance of this
Agreement or its consummation of the transactions contemplated
hereby.
(n)
There are no proceedings or investigations pending or, to CFSC's or
the Depositor's knowledge, no proceeding or investigations
threatened, against such party before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality having jurisdiction over such party or its
properties (i) asserting the invalidity of this Agreement or any of
the Notes, (ii) seeking to prevent the issuance of any of the Notes
or the consummation of any of the transactions contemplated by this
Agreement, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by such party of
its obligations under, or the validity or enforceability of, the
Notes or this Agreement, or (iv) that may adversely affect the
federal or state income, excise, franchise or similar tax
attributes of the Notes.
(o)
There are no contracts or other documents which are required to be
described in the Preliminary Prospectus or the Prospectus or filed
as exhibits to the Registration Statement by the Act or by the
Rules and Regulations and which have not been so described or
filed.
(p)
The Depositor (i) is not in violation of its certificate of
incorporation or by-laws, (ii) is not in default, in any material
respect, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the Depositor's
due performance or observance of any term, covenant or condition
contained in any indenture, agreement, mortgage, deed of trust or
other instrument to which the Depositor is a party or by which the
Depositor is bound or to which any of the Depositor's property or
assets is subject or (iii) is not in violation in any respect of
any law, order, rule or regulation applicable to the Depositor or
any of the Depositor's property of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over it or any of its property,
except any violation or default that would not have a material
adverse effect on the condition (financial or otherwise), results
of operations, business or prospects of the Depositor.
(q)
The Basic Documents conform in all material respects with the
descriptions thereof contained in the Registration Statement, the
Preliminary Prospectus and the Prospectus.
(r)
Neither the Issuing Entity nor the Depositor is an "investment
company" or under the "control" of an "investment company" within
the meaning thereof as defined in the Investment Company Act of
1940, as amended.
(s)
Other than the Preliminary Prospectus and the Prospectus, neither
the Depositor nor the Servicer (including their respective agents
and representatives other than the Underwriters in their capacity
as such) has made, used, prepared, authorized, approved or referred
to and will not prepare, make, use, authorize, approve or refer to
any “written communication” (as defined in Rule 405
under the Act) that constitutes an offer to sell or solicitation of
an offer to buy the Notes.
(t)
On the date on which the first bona fide offer of the Notes was
made, the Depositor was not an “ineligible issuer,” as
defined in Rule 405 of the Rules and Regulations.
3.
Purchase,
Sale, and Delivery of the Notes . On the basis of
the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the
Depositor agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Depositor,
(a) at a purchase price of 99.860000% of the principal amount
thereof, the respective principal amount of the Class A-1 Notes set
forth opposite the name of such Underwriter in Schedule I hereto,
(b) at a purchase price of 99.814316% of the principal amount
thereof, the respective principal amount of the Class A-2a Notes
set forth opposite the name of such Underwriter in Schedule I
hereto, (c) at a purchase price of 99.820000% of the principal
amount thereof, the respective principal amount of the Class A-2b
Notes set forth opposite the name of such Underwriter in Schedule I
hereto and (d) at a purchase price of 99.778113% of the principal
amount thereof, the respective principal amount of the Class A-3
Notes set forth opposite the name of such Underwriter in Schedule I
hereto. Delivery of and payment for the Notes shall be
made at the office of Orrick, Herrington & Sutcliffe LLP, 405
Howard Street, San Francisco, California 94105
on April 29,
2008 (the " Closing Date
"). Delivery of the Notes shall be made against payment
of the purchase price in immediately available funds drawn to the
order of the Depositor. The Notes to be so delivered will be
initially represented by one or more Notes registered in the name
of "Cede & Co.," the nominee of The Depository Trust Company ("
DTC "). The
interests of beneficial owners of the Notes will be represented by
book entries on the records of DTC and participating members
thereof. Definitive Notes will be available only under limited
circumstances set forth in the Indenture.
4.
Offering
by Underwriters . It is understood that the
Underwriters propose to offer the Notes for sale to the public
(which may include selected dealers) as set forth in the
Preliminary Prospectus and the Prospectus.
5.
Covenants
of the Depositor . The Depositor covenants and
agrees with each of the Underwriters that:
(a)
The Depositor will prepare a Prospectus Supplement setting forth
the terms of the Notes not specified in the Preliminary Prospectus
Supplement, including the price at which the Notes are to be
purchased by the Underwriters, the initial public offering price,
the selling concessions and allowances, and such other information
as the Depositor deems appropriate and shall furnish a copy to the
Representatives in accordance with Section 5(b) of this Agreement.
The Depositor will transmit the Prospectus to the Commission
pursuant to Rule 424(b) by a means reasonably calculated to result
in filing that complies with all applicable provisions of Rule
424(b). The Depositor will advise the Representatives
promptly of any such filing pursuant to Rule 424(b). The
Depositor will transmit the Bond Size Free Writing Prospectus and
the “free writing prospectus” in the form attached as
Annex B hereto (the “Pricing Free Writing Prospectus”)
to the Commission pursuant to Rule 433(d) by a means reasonably
calculated to result in filing that complies with all applicable
provisions of Rule 433(d).
(b)
Prior to the termination of the offering of the Notes, the
Depositor will not file any amendment of the Registration Statement
or supplement to the Prospectus unless the Depositor has furnished
the Representatives with a copy for its review prior to filing and
will not file any such proposed amendment or supplement to which
the Representatives reasonably object. Subject to the foregoing
sentence, if filing of a supplement to the Prospectus is otherwise
required under Rule 424(b), the Depositor will file the supplement
to the Prospectus properly completed with the Commission pursuant
to and in accordance with the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely
filing.
(c)
The Depositor will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus, and will not effect such amendment or supplement
without the Representatives' consent, which consent will not
unreasonably be withheld. The Depositor will also advise the
Representatives promptly of any request by the Commission for any
amendment of or supplement to the Registration Statement or the
Prospectus or for any additional information and the Depositor will
also advise the Representatives promptly of any amendment or
supplement to the Registration Statement or the Prospectus and of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threat of any proceeding for that purpose, and the Depositor will
use its best efforts to prevent the issuance of any such stop order
and to obtain as soon as possible the lifting of any issued stop
order.
(d)
If, at any time when a prospectus relating to the Notes is required
to be delivered under the Act (including delivery as contemplated
by Rule 172 under the Act), any event occurs as a result of which
the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Registration Statement or
supplement the Prospectus to comply with the Act or the Exchange
Act or the respective Rules and Regulations thereunder, the
Depositor promptly will notify the Representatives and will prepare
and file, or cause to be prepared and filed, with the Commission,
subject to the first sentence of paragraph (b) of this Section 5,
an amendment or supplement that will correct such statement or
omission, or effect such compliance. Any such filing shall not
operate as a waiver or limitation on any right of any Underwriter
hereunder.
(e)
The Depositor will furnish to the Underwriters copies of the
Registration Statement (one of which will be signed and will
include all exhibits), the Preliminary Prospectus, the Prospectus
and all amendments and supplements to such documents, in each case
as soon as available and in such quantities as the Underwriters
request.
(f)
The Depositor will assist the Representatives in arranging for the
qualification of the Notes for sale and determination of their
eligibility for investment under the laws of such jurisdictions in
the United States, or as necessary to qualify for Euroclear Bank
S.A./N.V. or Clearstream Banking, société anonyme, as
the Representatives designates and will continue to assist the
Representatives in maintaining such qualifications in effect so
long as required for the distribution; provided ,
however , that
neither the Depositor nor CFSC shall be required to qualify to do
business in any jurisdiction where it is now not qualified or to
take any action which would subject it to general or unlimited
service of process in any jurisdiction in which it is now not
subject to service of process.
(g)
For a period from the date of this Agreement until the retirement
of the Notes, or until such time as the Underwriters shall cease to
maintain a secondary market in the Notes, whichever occurs first,
the Depositor will deliver to the Representatives the annual
statements of compliance and the annual independent certified
public accountants' reports furnished to the Owner Trustee or the
Indenture Trustee pursuant to the Sale and Servicing Agreement, as
soon as such statements and reports are furnished to the Owner
Trustee or the Indenture Trustee.
(h)
So long as any of the Notes are outstanding, the Depositor will
furnish to the Representatives (i) as soon as practicable after the
end of the fiscal year all documents required to be distributed to
Noteholders or filed with the Commission pursuant to the Exchange
Act or any order of the Commission thereunder and (ii) from time to
time, any other information concerning the Depositor filed with any
government or regulatory authority which is otherwise publicly
available, as the Representatives may reasonably
request.
(i)
On or before the Closing Date, the Depositor shall cause the
computer records of the Depositor and the Servicer relating to the
Receivables to be marked to show the Issuing Entity's absolute
ownership of the Receivables, and from and after the Closing Date
neither the Depositor nor the Servicer shall take any action
inconsistent with the Issuing Entity's ownership of such
Receivables, other than as permitted by the Sale and Servicing
Agreement.
(j)
To the extent, if any, that the rating provided with respect to the
Notes by the rating agency or agencies that initially rate the
Notes is conditional upon the furnishing of documents or the taking
of any other actions by the Depositor, the Depositor shall furnish
such documents and take any such other actions.
(k)
For the period beginning on the date of this Agreement and ending
seven days after the Closing Date, unless waived by the
Underwriters, none of the Depositor, CFSC or any trust originated,
directly or indirectly, by the Depositor or CFSC will offer to sell
or sell notes (other than the Notes) collateralized by, or
certificates (other than the Certificates) evidencing an ownership
interest in, receivables generated pursuant to fixed-rate retail
installment sale contracts or finance leases and secured by
equipment similar to the Financed Equipment.
(l)
The Depositor and CFSC each will deliver to the Representatives,
all opinions, certificates and other documents or information
delivered by it to the Owner Trustee and the Indenture Trustee at
the time such opinions, certificates and other documents or
information are delivered to the Owner Trustee or the Indenture
Trustee pursuant to the Sale and Servicing Agreement and the
Purchase Agreement with respect to perfection and priority of
CFSC's interest in the Receivables.
6.
Payment
of Expenses . The Depositor will pay all expenses
incident to the performance of its obligations under this
Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment
thereto, (ii) the preparation, issuance and delivery of the Notes
to the Underwriters, (iii) the fees and disbursements of the
Depositor's counsel and accountants, (iv) the qualification of the
Notes under securities laws in accordance with the provisions of
Section 5(f) of this Agreement, including filing fees and the fees
and disbursements of counsel in connection therewith and in
connection with the preparation of any blue sky or legal investment
survey, (v) the printing and delivery to the Underwriters of copies
of the Registration Statement as originally filed and of each
amendment thereto, of the Preliminary Prospectus, of the Prospectus
and of each amendment or supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of any blue sky or legal
investment survey prepared in connection with the Notes, (vii) any
fees charged by rating agencies for the rating of the Notes, (viii)
the fees and expenses, if any, incurred with respect to any filing
with the Financial Industry Regulatory Authority and (ix) the fees
and expenses of Orrick, Herrington & Sutcliffe LLP in its role
as counsel to the Issuing Entity incurred as a result of providing
the opinions required by Sections 7(e) and (f) hereof.
7.
Conditions of the
Obligations of the Underwriters . The obligations
of the Underwriters to purchase and pay for the Notes will be
subject to the accuracy of the representations and warranties on
the part of the Depositor and CFSC herein, to the accuracy of the
statements of officers of the Depositor and CFSC made pursuant to
the provisions hereof, to the performance by the Depositor of its
obligations hereunder and to the following additional conditions
precedent:
(a)
The Registration Statement shall be effective at the Execution
Time, and prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Depositor or the Representatives, shall be
contemplated by the Commission or by any authority administering
any state securities or blue sky law.
(b)
Each of the Preliminary Prospectus and the Prospectus and any
supplements thereto shall have been filed (if required) with the
Commission in accordance with the Rules and Regulations and Section
5(a) hereof. The Bond Size Free Writing Prospectus and
the Pricing Free Writing Prospectus shall have been filed with the
Commission in accordance with Rule 433(d) of the Rules and
Regulations.
(c)
On or prior to the date of this Agreement and on or prior to the
Closing Date, the Representatives shall have received a letter or
letters, dated as of the date of this Agreement and as of the
Closing Date, respectively, of PricewaterhouseCoopers LLP,
independent public accountants, substantially in the form of the
drafts to which the Representatives have previously agreed and
otherwise in form and substance satisfactory to the Representatives
and their counsel.
(d)
Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the
business or properties of the Issuing Entity, the Depositor or the
Servicer which, in the judgment of the Underwriters, materially
impairs the investment quality of the Notes or makes it impractical
or inadvisable to market the Notes; (ii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange or the over-the-counter market, or any setting of minimum
prices for trading on such exchange, or a material disruption in
commercial banking or securities settlement or clearance services
in the United States or with respect to Clearstream or Euroclear
systems in Europe; (iii) any suspension of trading of any
securities of Caterpillar or CFSC on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by
Federal, Delaware or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is
involved, any declaration of war by Congress, or any other
substantial national or international calamity or emergency if, in
the judgment of the Underwriters, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical
or inadvisable to proceed with the offering, sale of and payment
for the Notes.
(e)
The Representatives shall have received opinions of Davis G. Reese,
Esq., Senior Corporate Attorney of CFSC, Orrick, Herrington &
Sutcliffe LLP and Boult, Cummings, Conners & Berry PLC, counsel
to CFSC, the Depositor and the Issuing Entity and such other
counsel acceptable to the Underwriters addressed to the
Representatives, dated the Closing Date and satisfactory in form
and substance to the Representatives and their counsel,
substantially to the effect that:
(i)
CFSC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware with full corporate power and authority to own its
properties and conduct its business, as presently owned and
conducted by it, and to enter into and perform its obligations
under this Agreement, the Administration Agreement, the Purchase
Agreement and the Sale and Servicing Agreement and had at all
times, and now has, the power, authority and legal right to
acquire, own and sell the Receivables.
(ii)
The Depositor has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Nevada with full corporate power and authority to own its
properties and conduct its business, as presently owned and
conducted by it, and to enter into and perform its obligations
under this Agreement, the Purchase Agreement, the Trust Agreement,
the Sale and Servicing Agreement and the Administration Agreement
and had at all times, and now has, the power, authority and legal
right to acquire, own and sell the Receivables.
(iii)
CFSC is duly qualified to do business and is in good standing, and
has obtained all necessary licenses and approvals in each
jurisdiction in which failure to qualify or to obtain such license
or approval would render any Receivable unenforceable by the
Depositor, the Owner Trustee or the Indenture Trustee.
(iv)
The Depositor is dul
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